United States v. Vanbeenen

872 F. Supp. 2d 1084, 2012 U.S. Dist. LEXIS 71739, 2012 WL 1890369
District Court, D. Oregon·Decided May 23, 2012·No. No. 3:10-CR-00229-BR·Published

Opinion

OPINION AND ORDER

BROWN, District Judge.

This matter comes before the Court on the issue of restitution.

BACKGROUND

In April 2006 Defendants David VanBeenen and Josh Hall established Team Capital and Investment Group, LLC (TCI), a Washington LLC, for the purpose of investing in real property in Oregon and elsewhere.

On November 28, 2007, Defendants used a straw purchaser, Erik Carlson, to submit three fraudulent mortgage-loan applications to Wells Fargo Bank to purchase three properties owned by TCI.1

Carlson’s application for the 67th Avenue property contained false information as to Carlson’s employment, monthly income, and assets and, in addition, omitted the business relationship Carlson had with VanBeenen.

On December 4, 2007, TCI provided the downpayment on the 67th Avenue property. Carlson did not reveal to Wells Fargo Bank that the downpayment was provided by TCI.

Based on the fraudulent information in the mortgage application, Wells Fargo Bank approved the mortgage loan and funded it on December 5, 2007.

[1086] On January 1, 2008, before any fraud was discovered, Wells Fargo Bank sold the loan to Fannie Mae for $204,100. After the loan fell into default, Fannie Mae foreclosed on March 3, 2009, and then sold the property on June 15, 2009, for $158,000.

On October 25, 2011, Defendant was charged in a Third Superseding Information with one count of making a False Statement to a Bank in violation of 18 U.S.C. §§ 2 and 1014. In the Third Superseding Information, the government charged VanBeenen only with respect to the 67th Avenue property.

On October 26, 2011, VanBeenen pled guilty to the charge in the Third Superseding Information and acknowledged he understood, among other things, that the Court would order restitution payments to “any victim of any offense to which I plead guilty” and “for ... crimes involving fraud or deceit, it is mandatory that the judge impose restitution in the full amount of any financial loss or harm cause by any offense.”

On February 22, 2012, the Court sentenced VanBeenen to one day imprisonment, five years of supervised release, and restitution to be determined.

On April 18, 2012, the Court held an evidentiary hearing as to the issue of restitution. At the hearing the government conceded the Court should only consider the 67th Avenue property with respect to the issue of restitution. Accordingly, the Court only considers the property at 67th Avenue when assessing Defendant’s restitution obligation.

Also at the hearing the Court directed the parties to file supplemental memoranda as to the calculation of restitution by May 8, 2012. With the benefit of those filings, the Court took the matter of restitution under advisement on May 8, 2012.

DISCUSSION

Defendant asserts in his Supplemental Restitution Memorandum that (1) Fannie Mae is not a victim because whatever loss it incurred was not proximately caused by VanBeenen’s offense of conviction, (2) the property should be valued at between $169,000 and $179,000 for purposes of calculating restitution, (3) Fannie Mae may not recoup any of the costs it incurred after taking title to the property, and (4) the Court should deduct Mortgage Insurance Premiums (MIP) and other proceeds from the restitution amount.

I. Restitution generally.

The Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A, provides in pertinent part:

(a)(1) ... when sentencing a defendant convicted of an offense described in subsection (c), the court shall order ... the defendant make restitution to the victim of the offense.
(2) For the purposes of this section, the term “victim” means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.

18 U.S.C. § 3664(e) establishes each party’s burden of proof as follows:

Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the financial resources of the defendant and the [1087] financial needs of the defendant’s dependents, shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires.

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United States v. Vanbeenen, 872 F. Supp. 2d 1084, 2012 U.S. Dist. LEXIS 71739, 2012 WL 1890369 (D. Or. 2012).

872 F. Supp. 2d 1084 (United States v. Vanbeenen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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