Judge orders Bank of America to be defendant in real estate fraud case
Saturday, October 9, 2010; 6:28 PM
A clandestine meeting in a North Carolina hot tub sparked a series of events that led a federal judge in Alexandria to reverse himself Friday, and order Bank of America into a massive real estate fraud case.
The judge previously ruled that the bank should not be a defendant.
The extraordinary ruling by U.S. District Judge Gerald Bruce Lee was a victory for dozens of Fairfax County school teachers and administrators, and hundreds of other investors who claim they were sold overpriced, vacant lots in North Carolina that later plunged in value from as much as $400,000 to about $20,000 each.
In 2006, the plaintiffs - 129 who sued in federal court in Virginia, and 285 who sued in North Carolina - bought land in two developments in North Carolina being marketed by Total Realty Management, a Woodbridge firm run by Mark Dain and Mark Jalajel. They allege that Dain assured them they could buy the lots with no money down and make no payments for two years, and in the meantime flip the properties for certain profit.
Because TRM was buying the lots for about $150,000 and reselling them immediately for $300,000 or more, the plaintiffs claimed that TRM couldn't have done it without the help of banks such as Bank of America. They said in court papers that TRM and the banks colluded to inflate the appraised values of the properties, in part by getting second and third appraisals when original appraisals were too low for the sale prices TRM wanted.
In August 2009, Lee dismissed the banks as defendants in the Northern Virginia case, saying there was no evidence or reasons that the banks would issue overpriced loans to people who couldn't afford them.
That's where the hot tub comes in.
In March 2010, after Lee's ruling, a lawyer in the North Carolina case obtained more than 700 pages of e-mails that hadn't been turned over in the Virginia case, during a meeting held in a hot tub so no one could wear a hidden tape recorder, court records state. The e-mails showed a Bank of America loan officer discussing the "recovery appraisals" with Dain and also with Mace Watts, who represented R.A. North Development.
In one case, plaintiffs lawyer Martin C. Conway said Friday, TRM wanted to sell a lot to a Northern Virginia woman for $380,000. But the e-mails showed that Bank of America's first appraiser valued the lot at only $210,000. A second appraisal came in at $220,000. Finally, a third appraisal for the same lot came in at $385,000, and the loan was approved.
"Obviously," the judge said, "these are material to this case and should have been produced in this case, before I spent all this time doing the order."
The judge turned to Andrew J. Trask, Bank of America's lawyer, and said, "What in the world happened here? Why weren't these documents produced?"
Trask said "none of them originated out of Bank of America," and that the judge had dismissed the bank from the case before they had to turn them over.
"It's my fault," the judge said. "I was moving too fast."
Although the buyers in Northern Virginia couldn't afford the loans, and never spoke to the bank - TRM handled all the paperwork, and one of its officers has pleaded guilty to falsifying loan applications - the loan officers stood to profit personally by taking commissions on every loan that was made, Conway said. TRM also made two years worth of payments to the banks on the interest-only loans, which lawyers said came from TRM's profits.
Lee also noted that Bank of America had obtained mortgage insurance for the loans, which could have provided the bank with a safety net - except that the insurance company later canceled many of the policies because of "misrepresentation" by the bank. The judge also took notice that TRM officer Cari Deuterman, and former TRM employee Aaron Hernandez, have pleaded guilty to bank fraud.
Lee gave the plaintiffs permission to refile their case against Bank of America with the new evidence, though he said "the issue of plausibility still remains. What did the bank have to gain by entering into fraudulent loans?" The case against the TRM defendants is on hold while they are in bankruptcy proceedings.
A number of the plaintiffs were present and applauded Lee's ruling. "I'm extremely happy," said Craig Hanford of Fairfax. "All I want is my day in court and this allows us to get there."