The Indiana Lawyer-
Three defendants convicted of wire fraud in the purchase of 16 properties in Gary were clearly guilty of the crimes, but the 7th Circuit Court of Appeals Friday threw out a restitution order against them and urged the district court in Hammond to consider fining Bank of America for “facilitating a massive fraud.”
“The bank was reckless,” Judge Richard Posner wrote in United States of America v. Minas Litos and Adrian and Daniela Tartareanu, 16-1384, -1385, 2248, 2249, 2330. The defendants were convicted of wire fraud, and the 7th Circuit affirmed those convictions, but reversed an order that they pay the bank restitution of $893,015, the amount it claimed was lost in the scheme.
The defendants were convicted on wire fraud charges filed in 2012 for a scheme in which home buyers were provided down payment kickbacks from the defendants after mortgages were secured on loan applications that provided false information. The defendants then walked away with the purchase price of the properties. But the 7th Circuit wrote Bank of America didn’t have clean hands, and there was little evidence that the bank would not have made the loans had it know the true source of the down payments — the defendants, not the buyers.
Editor’s note: This article has been corrected. In reversing a restitution order for Bank of America, the 7th Circuit urged a fine against the criminal defendants in this case.
Three defendants convicted of wire fraud in the purchase of 16 properties in Gary were clearly guilty of the crimes, but the 7th Circuit Court of Appeals Friday threw out a restitution order in favor of Bank of America and urged the district court in Hammond to consider fining the defendants instead.
“The bank was reckless,” Judge Richard Posner wrote in United States of America v. Minas Litos and Adrian and Daniela Tartareanu, 16-1384, -1385, 2248, 2249, 2330. The defendants were convicted of wire fraud, and the 7th Circuit affirmed those convictions, but reversed an order that they pay the bank restitution of $893,015, the amount it claimed was lost in the scheme.
The defendants were convicted on wire fraud charges filed in 2012 for a scheme in which home buyers were provided down payment kickbacks from the defendants after mortgages were secured on loan applications that provided false information. The defendants then walked away with the purchase price of the properties. But the 7th Circuit wrote Bank of America didn’t have clean hands, and there was little evidence that the bank would not have made the loans had it know the true source of the down payments — the defendants, not the buyers.
Posner detailed the bank’s dubious mortgage-lending history during the real-estate bubble leading up to the Great Recession, noting for instance one woman to whom the bank issued six mortgages in a 10-day period. Posner noted that District Judge Philip Simon said during sentencing in this case, “Bank of America knew [what] was going on. They’re playing this dance and papering it. Everybody knows it is a sham because no one is assuming any risk. So what’s wrong with saying they’re [of] equal culpability?”
“Indeed,” Posner continued, “and we are puzzled that after saying this the judge awarded Bank of America restitution — and in the exact amount that the government had sought.”
“Restitution for a reckless bank? A dubious remedy indeed — which is not to say that the defendants should be allowed to retain the $893,015. That is stolen money,” he wrote. “We don’t understand why the district judge, given his skepticism concerning the entitlement of Bank of America to an award for its facilitating a massive fraud, did not levy on the defendants a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any of $893,015. 18 U.S.C. § 3571(d) authorizes a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any person either derives pecuniary gain or suffers pecuniary loss.”
The 7th Circuit vacated the restitution order as to the Tartareanus and remanded for full resentencing with the alternative remedy of a heavy fine on the defendants. The panel remanded Litos’ sentencing for the limited purpose of reconsideration of the restitution order with direction to consider whether a fine is possible.
Filed under: foreclosure | Tagged: BOA, foreclosure fraud, indiana foreclosure |
But also in regards to Bankruptcy ..some racing sheriffs sale file it just to buy time while the Appeal is pending right?
You might not be able to raise the adversarial component ..but they can’t deny you filing a Bankruptcy correct?
But would that hurt your rescission argument in some way? Since BK requires that you start paying the bank mortgage payments.
How about if we contact Wells Fargo asking THAT they suspend the Sheriffs Sale while we work on the options available ..such as modification …short sale …etc.
Would they allow us or are they required to allow us to apply for a modification request even though they now have a sale date?
Neidermeyer …thank you for the reply …yes I see your point about the Bankruptcy issue … A Motion for Stay pending Appeal is a hard road, but I’m going to have to try and convince the trial judge to grant me the stay …and convince him or persuade him to do it by pointing out that this case is unique considering the recent SCOTUS Jesinoski decision and that the Appellate Court has not yet addressed these particular issues raised in this appeal ..I.e., the 20 days ignored ..and the tender again being used to deny a consumers rescission effectiveness after the Creditor ignored it for years and never complied…etc.
http://www.stayinmyhome.com/stay-pending-appeal-cancellation-of-a-foreclosure-sale/
AnnonymousNJ ,
IANAL , I would pay for a consult with a lawyer in your area that wins cases… I don’t think the BK would work as you have an appeal pending.. they’ll likely just notice the prior loss and appeal and consider it decided … I would try for the stay pending appeal. You may have to accept a full defeat knowing that you’re coming back after them in a year or two when Jesinoski gets rammed down their throats again … Good Luck…
Reposting article here because somehow the margin was truncated …
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Editor’s note: This article has been corrected. In reversing a restitution order for Bank of America, the 7th Circuit urged a fine against the criminal defendants in this case.
Three defendants convicted of wire fraud in the purchase of 16 properties in Gary were clearly guilty of the crimes, but the 7th Circuit Court of Appeals Friday threw out a restitution order in favor of Bank of America and urged the district court in Hammond to consider fining the defendants instead.
“The bank was reckless,” Judge Richard Posner wrote in United States of America v. Minas Litos and Adrian and Daniela Tartareanu, 16-1384, -1385, 2248, 2249, 2330. The defendants were convicted of wire fraud, and the 7th Circuit affirmed those convictions, but reversed an order that they pay the bank restitution of $893,015, the amount it claimed was lost in the scheme.
The defendants were convicted on wire fraud charges filed in 2012 for a scheme in which home buyers were provided down payment kickbacks from the defendants after mortgages were secured on loan applications that provided false information. The defendants then walked away with the purchase price of the properties. But the 7th Circuit wrote Bank of America didn’t have clean hands, and there was little evidence that the bank would not have made the loans had it know the true source of the down payments — the defendants, not the buyers.
Posner detailed the bank’s dubious mortgage-lending history during the real-estate bubble leading up to the Great Recession, noting for instance one woman to whom the bank issued six mortgages in a 10-day period. Posner noted that District Judge Philip Simon said during sentencing in this case, “Bank of America knew [what] was going on. They’re playing this dance and papering it. Everybody knows it is a sham because no one is assuming any risk. So what’s wrong with saying they’re [of] equal culpability?”
“Indeed,” Posner continued, “and we are puzzled that after saying this the judge awarded Bank of America restitution — and in the exact amount that the government had sought.”
“Restitution for a reckless bank? A dubious remedy indeed — which is not to say that the defendants should be allowed to retain the $893,015. That is stolen money,” he wrote. “We don’t understand why the district judge, given his skepticism concerning the entitlement of Bank of America to an award for its facilitating a massive fraud, did not levy on the defendants a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any of $893,015. 18 U.S.C. § 3571(d) authorizes a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any person either derives pecuniary gain or suffers pecuniary loss.”
The 7th Circuit vacated the restitution order as to the Tartareanus and remanded for full resentencing with the alternative remedy of a heavy fine on the defendants. The panel remanded Litos’ sentencing for the limited purpose of reconsideration of the restitution order with direction to consider whether a fine is possible.
My Appeal was filed last week ..it could take 6 months to 1 year before the Appellate Division decides my Appeal. The Trial Court granted the servicer Wells Fargo Summary Judgment , stating that my timely TILA Rescission did not mention that I was offering to pay Tender . the Plaintiff had never raised that argument, they simply stated that we did not have a right to rescind ..but they never produced any evidence such as the signed acknowledgments ..they said that after 3 years you can’t raise that you rescinded ..the court agreed …then I motioned for the Court to reconsider in light of Jesinoski …the court denied my motion and said I had never offered the tender in my Rescission letter.
So my Appeal is filed …. But today the Sheriffs Sale date was placed on my front door … March 21, 2017
I am allowed 2 statutory stays ..each stay is for 2 weeks
What should I do next?
If I motion for the trial court to stay pending appeal they will most likely deny the motion… Then I can ask the Appeal Court to stay ..but not sure if they would without me putting up money or bond ..
Should we consider filing a Bankruptcy with adversarial pleading against Wells Fargo as an unsecured creditor?
Hate to lose the house while my TILA Rescission is under appeal
Reblogged this on Deadly Clear and commented:
Wow! Judge Posner gets it! “Posner detailed the bank’s dubious mortgage-lending history during the real-estate bubble leading up to the Great Recession, noting for instance one woman to whom the bank issued six mortgages in a 10-day period. Posner noted that District Judge Philip Simon said during sentencing in this case, “Bank of America knew [what] was going on. They’re playing this dance and papering it. Everybody knows it is a sham because no one is assuming any risk. So what’s wrong with saying they’re [of] equal culpability?””