United States v. Bryson

94 F. App'x 389
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 7, 2004
DocketNos. 03-2280, 03-2905
StatusPublished
Cited by4 cases

This text of 94 F. App'x 389 (United States v. Bryson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bryson, 94 F. App'x 389 (7th Cir. 2004).

Opinion

ORDER

Deb Barnes1 and Melvin Girton were indicted on charges of conspiracy to commit mail fraud arising out of a mortgage fraud scheme in Indianapolis between early 1998 and May of 2001. They were accused of being part of a conspiracy in which inflated appraisals and other false information were used to obtain loans in excess of the true value of the real estate being purchased. The indictment charged Barnes and Girton with conspiracy to commit mail fraud in violation of 18 U.S.C. § 371 and three counts of mail fraud in violation of 18 U.S.C. § 1341. Barnes was also charged with 10 counts of money laundering in violation of 18 U.S.C. § 1956(a)(l)(B)(I). Twelve other people indicted in the conspiracy pled guilty to various charges. Barnes and Girton took their chances, went to trial, and a jury convicted them on all counts. Barnes was sentenced to a term of 60 months. Girton [392]*392received a 44-month sentence. They now appeal, raising a number of issues. We begin with the facts, which at this stage of the proceedings we must present in the light most favorable to the verdict.

The mortgage fraud scheme was large and complex. It began with Tim Fagan, a former drug dealer turned real estate investor. Fagan began buying real estate through Paul Dailey’s mortgage company, Platinum Mortgage. Fagan obtained loans on residences in excess of the true value of the properties by using inflated appraisals and falsified income documentation. He obtained this misleading documentation from Kevin Killebrew, an accountant who created W-2s, check stubs, and tax returns which incorrectly showed the borrowers earned enough income to qualify for loans. Killebrew also created false invoices showing liens on the properties that needed to be paid at closing. The money that the lenders thought was being used to pay these liens went to Fagan.

Initially, Fagan used this extra money to fix up the properties. However, he quickly fell behind on the loan payments. Soon he began pocketing the extra money and defaulting on his loans.

Because Fagan defaulted, his credit became too poor to obtain any more loans in his name. He then began using people with good credit histories as straw purchasers to buy more properties’ and get cash from more loans. He shared the excess loan proceeds with the straw purchasers, who also defaulted on the loans. Fagan received several hundred thousand dollars in the scheme.

Fagan needed inflated appraisals in order for this scheme to work. He would tell appraisers the value at which he wanted the properties appraised. Girton was one of the people to provide him with these inflated appraisals. To order these appraisals, Fagan testified that “Basically, I would tell [Girton] the address of the property that I need [sic], and tell him the type of value I need from that property....”

Appraisals follow a standard fox-mat and are supposed to include certain information. One piece of information is data from the multiple listing service (MLS), which lists properties that are for sale through a real estate agent. The MLS listing includes the asking price and a description of the property and is available to all real estate agents. The listing price and any recent sales axe key factors an appraiser uses to determine the fair market value of a property. Real estate appraisers are required to state on an appraisal whether, according to the MLS, the property is currently for sale or has been listed or sold in the past 12 months.

The properties Girton appraised were listed in the MLS at a price significantly lower than the value at which Girton appraised the property. Girton’s appraisals were between 50 and 223 percent higher than the MLS price. Instead of explaining why he appraised the property substantially higher than the MLS listing price, Girton either falsely stated on the appraisals that the properties had not been listed in the MLS in the past 12 months or did not answer the question. Girton signed each appraisal report certifying that the information in it was accux-ate. Also, Fagan had to remind Girton to take a photograph of each property that did not include the for-sale sign in the yard, establishing that Girton knew the property was listed for sale and therefore in the MLS.

After the inflated appraisals and falsified loan applications were completed, Platinum Mortgage would mail the loan application packages via private commercial interstate carrier (such as FedEx) to one of several lenders. After loan approval, Fagan or other Platinum Mortgage em[393]*393ployees would designate at which title company the closing would take place. Title companies were selected based upon their willingness to let Fagan or Platinum Mortgage control the closing, which was essential to keeping the seller and lender in the dark about what was really happening.

In order to complete the deception and obtain the loan money, several things needed to occur at these closings. A HUD-1 settlement statement is prepared for each closing showing the selling price of the property. In order to get the extra money from the lender, Fagan needed two HUD statements: one for the seller showing the true selling price, and one for the lender showing an inflated selling price.

Fagan used Barnes, a closing agent at Meridian Title, to prepare these “double HUDs.” He gave her instructions on how to close the loans he obtained through the straw purchasers. At each closing he told her to write checks contrary to the lender’s instructions, including writing checks to the straw purchasers (the borrowers) and to fictitious companies. The HUDs returned to the lender via FedEx did not disclose that Barnes wrote checks to the borrower. Instead, the HUDs falsely stated that the borrower provided a down payment and that most of the loan funds were disbursed to the seller. The HUDs sent to the lender also reflected a false purchase price far above the true purchase price. For example, in one instance the HUD sent to the lender reflected a $96,000 purchase price, whereas the purchase price reflected on the seller’s HUD was $44,500.

Barnes also prepared disbursement ledgers for these closings. In the closing we just mentioned, the disbursement ledger shows that the only money collected and disbursed by Barnes was the lender’s money — $81,129.00. However, the borrower received $28,798.13; this was not reported on either HUD. The down payment reflected on the HUD was never collected or disbursed. Barnes signed both settlement statements certifying “The HUD-1 Settlement Statement which I have prepared is a true and accurate account of this transaction. I have caused or will cause the funds to be disbursed in accordance with this statement.” Barnes did not perform these duties gratis; she received $200 under the table from Fagan for each double-HUD closing she did.

Not satisfied with the $200 she was receiving for each closing, Barnes devised another way to make money from each transaction. Using the fraudulent loan closing proceeds, Barnes wrote checks drawn on her employer’s escrow account to Hobert Montgomery, Mark Egger, and KC Mechanical, a company owned by Kristina Kirby, who worked with Barnes at Meridian Title.

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Bluebook (online)
94 F. App'x 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bryson-ca7-2004.