The passport clerk in the San Francisco office was suspicious of John Anthony Cook's application from the start. The records showed Cook had obtained his first driver's license only the month before, at the age of 32.
A check with California's vital records office confirmed his suspicions. John Anthony Cook died 30 years earlier, at the age of 2.
FBI agents confronted the man posing as Cook when he came to pick up his passport. After an hour of questioning, he told them his real name: John L. Molinaro, 46, former owner of Ramona Savings and Loan of Orange, Calif., whose failure cost the government $65 million. Like hundreds of other S&L executives and borrowers who squandered thrift funds, Molinaro was the target of a government civil suit seeking to recover the losses.
In Molinaro's briefcase, agents found airline tickets to the Cayman Islands and a spiral notebook that listed three offshore bank accounts and two safe deposit boxes. That 1987 discovery set the stage for Molinaro's surrender of $4.4 million in cash and property under a settlement last month with the Federal Deposit Insurance Corp. (FDIC).
In the frustrating and time-consuming cat-and-mouse game in which the government is now engaged, such strokes of luck are rare and victories few. Assets of many S&L executives and borrowers are either too well hidden or too depleted for the FDIC to collect much money.
A more productive route has been to zero in on thrifts that bought insurance to cover negligence by their officers and fraud by their employees. Most of the $450 million the FDIC has recovered in the past two years has come from insurance policies. But only about half of the thrifts that failed before January 1989 and a smaller percentage of the thrifts that collapsed later were insured.
"One of our great frustrations is many of the worst actors have little if any money from which a judgment can be collected," said John V. Thomas, an associate general counsel at the FDIC, the agency in charge of the recovery effort. "In many instances, that's because they never really had much money.
"In other instances, they invested most of the money in the institution's stock, which became worthless, or they invested in the real estate and oil booms and lost money. A fair number of them put their money in their relatives' names. We assume that some of them have hidden it places where it can't be found, though by definition, nobody knows how many."
If letters to members of Congress are any gauge, the public wants no stone left unturned in the hunt for S&L funds. "All those involved in this fraud . . . should live in poverty for the rest of their lives," one Texas taxpayer wrote. But the FDIC, mindful of the high cost of litigation, believes it must be highly selective in choosing its targets.
Last year, the FDIC spent nearly $1 for every $1.50 it recovered, although the ratio is expected to improve this year. It typically costs the government at least $100,000 for a fraud or negligence suit "and most of the cases cost substantially more," Thomas said.
For that reason, the FDIC usually ignores individuals with net worths of less than $300,000 to $500,000, unencumbered by debt, whatever their culpability. The government makes exceptions in some cases of "very, very egregious, very gross negligence," said James R. Dudine, assistant director of investigations for the Resolution Trust Corp., the agency established to oversee the thrift cleanup. But generally, "you're going to lose money if you bring those cases," said Thomas.
An S&L operator who sets up offshore accounts and family trusts or stashes assets with family members also stands a decent chance of defeating the FDIC, simply by driving the cost of the chase. "Basically people who go to those lengths to hide money are relatively successful," said Anne Buxton Sobol, one of the FDIC's principal lawyers for S&L liability suits.
The FDIC's work is particularly frustrating in Texas and Florida, where some of the largest thrift failures have occurred. S&L defendants there have sought refuge in state bankruptcy laws that shield an individual's home, no matter how great its value. The long-standing "homestead exemptions," adopted to prevent debtors from losing the roofs over their heads, have allowed some S&L operators to keep million-dollar houses even after the FDIC has obtained civil judgments against them.
Developer A. Starke Taylor III, for example, gave up cash and real estate interests when he settled a fraud and negligence suit with the FDIC last year, but hung onto his $1.5 million Dallas home. Taylor admitted no wrongdoing in settling the suit.
The FDIC had alleged that Taylor, his partner George Watson and directors of FirstSouth Savings and Loan of Pine Bluff, Ark., caused FirstSouth's collapse through a scheme that netted the developers $200 million in loans. Under the settlement, Taylor and Watson, who were also major stockholders of FirstSouth, agreed to turn over $100,000 each in cash and a $150,000 promissory note, as well as 50 percent ownership in their real estate interests, according to the FDIC.
But Taylor's home was untouchable because of the Texas homestead exemption. "That's always discouraging when you can't claim their largest asset," said Marilyn Klawiter, a Chicago lawyer who served as the FDIC's attorney in the case.
A new federal law enacted in October will allow the FDIC to override the state laws, but only if it proves that the owner engaged in fraud or "willful and malicious" injury to a financial institution.
The FDIC's legal costs are staggering in part because, faced with an enormous workload and need for expertise, it relies on outside legal firms to handle the actual litigation. In-house lawyers, aided by a team of several hundred investigators, determine when a suit should be filed, then supervise the outside firms that are hired. The agency plans to hire 100 more attorneys to add to an 80-member staff now handling 1,400 investigations and 500 ongoing suits.
The FDIC tries to save money by seeking restitution orders in cases that result in criminal convictions, thus avoiding the lengthy civil court process. But the Supreme Court earlier this year limited restitution orders to the amount of fraud proven, typically a small fraction of the losses caused by the defendant. And the government collects only about 2 percent to 3 percent of the restitution ordered, because most criminal defendants are insolvent.
How the FDIC decides whom to sue is a tricky blend of detective work and guesses. FDIC attorneys scour property records, review thrift transactions and pursue tips from S&L insiders to get an idea of how much money a suit might bring.
Unlike banks, S&Ls were not required to keep financial statements of directors and officers, "so often we don't have that to start with," Dudine said. "One of the huge problems is the financial information we are able to obtain is inaccurate or incomplete," Thomas said. The FDIC usually obtains a complete list of a defendant's assets only after it wins its suit.
Insurance policies require less guesswork and typically bring bigger payoffs. The largest settlement to date brought in $68 million, paid by CNA Financial, a company that wrote a $100 million negligence policy for the directors of Eureka Federal Savings and Loan of San Carlos, Calif. The thrift's losses amounted to $200 million.
But few thrifts carried that much insurance. Regulators required thrifts to obtain a fidelity bond to cover dishonest acts by employees, but the most coverage required was $3 million. Some thrifts could not obtain any bond, but stayed open anyway.
Policies that cover negligence by directors and officers, known as "DNO" insurance, were not required. Some thrifts purchased DNO policies that specifically excluded the FDIC as a claimant. Of the dozen most costly thrifts to fail, half had neither DNO insurance nor fidelity bond coverage in force.
The case of American Diversified Savings Bank, outside Los Angeles, illustrates the pitfalls of pursuing individuals for funds. FDIC attorneys alleged in a civil suit that self-dealing, primarily by former chairman Ranbir S. Sahni, cost the thrift $60 million. The thrift's top officers "took so much out of the institution we figured they had to have some of it," Sobol said.
Sahni has said that the thrift was profitable when the government seized it and that he is not responsible for any losses.
So far, the FDIC has spent $2.9 million in legal fees during the four years of litigation; the agency isn't sure it can recover much more than that.
Jay and Leif Soderling, former top officers of Golden Pacific Savings & Loan near Santa Rosa, Calif., were fine targets, worth millions in cash and land. Still, the FDIC had to devote immense effort to collect even a dime.
The Soderling brothers were ordered to pay the FDIC $6.7 million in restitution after they pleaded guilty in June 1987 to misapplication of funds. The brothers were each sentenced to a year in prison and instructed to provide the FDIC with a complete list of their assets.
The law firm of Cooley, Godward, Castro, Huddleson and Tatum, hired by the FDIC, first learned from a fellow lawyer that the Soderlings' accounting of assets was incomplete. The lawyer, who had just lost a suit against the Soderlings, called from the back room of a restaurant to tell the government's attorneys about a land option worth $1.9 million, not included on the Soderlings' list, according to the FDIC.
The Soderlings' financial records, stored in a leaky, unheated horse barn, later showed the brothers had liquidated $3 million in assets after the criminal charges were filed, the FDIC told the court.
That evidence provoked U.S. District Judge Robert F. Peckham to freeze the Soderlings' assets and limit their spending to $2,500 a month. Despite the freeze, the Soderlings, while serving out their sentences in halfway houses, cashed in the biggest asset, a promissory note worth $832,000, according to the court.
The FDIC's attorneys immediately demanded that the brothers turn over the proceeds, but the Soderlings were ahead of them. In six weeks, the brothers had spent half a million dollars, buying matching Dodge Caravans, two Ford trucks, three cellular phones and a pair of $16,000 computer systems. They also paid a year's advance rent on their houses, and prepaid fees for feeding and training Jay Soderling's horses.
The Soderlings argued that the expenditures had been made by family trusts controlled by their wives, but Peckham declared that the trusts were shams. The judge also determined that two corporations supposedly set up by the Soderlings' in-laws were fronts for the brothers. Peckham appointed a receiver for the money remaining in the Soderling family trusts, estimated at $500,000 to $1.5 million.
The Soderlings have now filed for bankruptcy, forcing the FDIC to reargue the complex case before another judge. Meanwhile, "the estate is diminishing just by operating it," said Betty Ann Smith, a partner with Cooley, Godward.
To date, the agency has recovered $1.9 million from the Soderlings' land option and $5.3 million from other Golden Pacific defendants.
The FDIC succeeded in another regard: The Soderlings' financial dodges so upset Judge Peckham, he revoked their probation and ordered them both back to prison for six years.
Molinaro, alias John Anthony Cook, proved an equally wily adversary. A former carpet salesman, he and a partner, Donald P. Mangano, opened Ramona Savings and Loan in April 1984.
In the two years before the government closed the thrift, the FDIC alleged, Molinaro and Mangano took about $19 million out of the thrift in salaries, dividends and payments from various thrift transactions.
After the FDIC filed suit, alleging mismanagement and fraud, Molinaro faked a divorce, set up six shell corporations, established three bank accounts in the Cayman Islands and the Turks and Caicos Islands and transferred funds to his wife, his ex-wife, his mother-in-law and a family trust, according to court records and the FDIC.
He split up, merged and transferred funds from more than 50 bank accounts. He established two false identities by searching old newspaper obituaries in the library for deaths of men born about the same time he was, then obtained birth certificates in their names by claiming he had lost the originals. "Everything was a surprise in this case," said Richard Fruin, whose law firm was hired by the FDIC to handle the suit. "Nothing was as it seemed."
In Molinaro's spiral notebook, he jotted reminders and notes to himself about his elaborate plan. "Consider bouncing $ on-shore, then off-shore again," Molinaro wrote. "If FSLIC starts to snoop wire funds to: $500,000 to bank x, $500,000 to bank y."
"Write out plan for depositing Cayman cash, consider bringing some back through Canada. . . . Might be better to leave funds scattered. . . . When money trail is broken, send wire."
The breakthrough at the passport office eventually enabled the FDIC's attorneys to seize Molinaro's home, auction off his silver Rolls Royce and his white Mercedes-Benz, empty the offshore accounts and claim half of the children's trust.
Molinaro also turned over four diamond rings, three gold wristwatches and his diamond ID bracelet. But the agency lost a certain amount of money to his ex-wife. When FDIC attorneys agreed to allow her "reasonable" attorneys' fees, she spent $800,000 in about a year, or $69,000 a month, according to Fruin.
Mangano eventually surrendered $1.2 million after the court found he had transferred $1.5 million to his wife and arranged for his children to buy his house. That brought the FDIC's total recovery in the case to $5.9 million, minus $2 million in legal fees. Both men were convicted of bank fraud; Mangano is serving a 15-year sentence and Molinaro is serving 12 years.
"It was extremely fortuitous to have discovered that notebook," Fruin said. "If they were real sophisticated," said FDIC attorney Herman Manuel, "you'd never find out about this kind of thing."
To keep their homes, some bank and S & L directors and borrowers sued by the Federal Deposit Insurance Corp. seek refuge in state bankruptcy laws prohibiting confiscation of residences. Others transfer ownership to relatives.
3401 Beverly Dr., Highland Park, Tex.
The FDIC has civil judgments of about $3 million against Robert H. Holmes, former director of City National Bank of Plainview, for failure to pay loans. The agency also alleges he caused $10 million in losses at his bank. But FDIC is uncertain whether it will be able to seize Holmes's Dallas home, assessed at $900,000, because of the homestead exemption in Texas bankruptcy law.
4409 Bordeaux Ave., Highland Park, Tex.
A. Starke Taylor III, major stockholder of an Arkansas thrift, gave the Federal Deposit Insurance Corp. (FDIC) cash and real estate interests in a civil suit settlement, but his $1.5 million Dallas home was protected under Texas bankruptcy law.
17022 Empanada Pl., Encino, Calif.
This Los Angeles-area home, valued at $460,000, was one of three owned by Albert Yarbrow, an S&L loan broker convicted of fraud. The FDIC alleges that Yarbrow transferred this home and another to his children to avoid a $5 million judgment to the FDIC.