TIMOTHY R. RICE, Magistrate Judge.
This case provides a rare glimpse into the inner workings of predatory lending practices targeting the elderly and their impact on the 2008 collapse of our nations' mortgage lending industry. At its core, the evidence features the victimization of an elderly woman, Margaret Brock ("Brock"), by her so-called "family friends," who devised a scheme to enrich themselves by draining equity from her home. Defendants' scheme manipulated nearly non-existent lending protocols in an industry that often turned a blind-eye to such predatory practices.
Following a two-day, non-jury trial, I find that Defendants Leona Hudgins, Byron White, Danette Thomas, and Silver Buckman
I credit Brock's deposition testimony, because it is corroborated and supported by other evidence in the record. I discredit the testimony from Hudgins, White, and Thomas because it was inconsistent with Brock's testimony and evidence in the record, contradictory to statements they made in previous pleadings, and inconsistent with a common understanding of how mortgage transactions are processed, e.g. documented on HUD-1 paperwork. In considering Buckman's deposition testimony, I draw a negative inference against her due to her invocation of her Fifth Amendment rights that a truthful answer would tend to incriminate her.
1. Brock and Alfonzo Brock ("Decedent")
2. In 2006, Decedent and Brock suffered from health problems. Brock's Dep. at 10-11, 13, 14, 17. During this time, Brock handled her and Decedent's finances.
3. Brock confided to Defendant Leona Hudgins, her friend and beautician for more than 30 years, that she was experiencing financial troubles. N.T. 12/16/13 at 27-30. Hudgins portrayed herself and Brock as sisters.
4. Hudgins told Brock that she had refinanced her home and received money. N.T. 12/16/13 at 29. Hudgins then told her son, Defendant Byron White, that Brock was having financial issues and suggested he help her.
5. White visited Brock and told her that she may have to refinance the Property's then-existing mortgage to acquire the funds she needed. Ex. 31, White's Ans. ¶ 43. The Property had a mortgage of approximately $81,000. Brock's Dep. at 16-19. Brock believed White was soliciting real estate business in her neighborhood.
6. Although Decedent had previously paid the Property's mortgage payments, Brock handled the refinancing alone because of Decedent's declining health. Brock's Dep. at 33.
7. On November 29, 2006, Brock and Decedent refinanced the Property. N.T. 12/16/13 at 30; Ex. 2, 4/24/06 HUD-1. The previous mortgage of $81,612.05 was paid and the new mortgage for $120,000 was issued by WWC Mortgage Corporation. 4/24/06 HUD-1. Brock and Decedent received only $10,435.68 from the refinancing, which was insufficient to cover Brock's continuing expenses or provide the assistance White had promised. N.T. 12/16/13 at 30, 32, 79; Brock's Dep. at 33-35; 4/24/06 HUD-1. Other settlement charges totaling $24,952.27, more than double Brock's net proceeds, were paid to other entities. 4/24/06 HUD-1 at 2. Wallace received $3,800 in connection with the refinance, 36% of Brock's net proceeds. N.T. 12/16/13 at 76; 4/24/06 HUD-1.
8. Although White had no role in the refinance, he accepted $1,500 from Brock as a "gift" for his services—15% of Brock's net proceeds.
9. In 2007, Decedent's condition worsened. Brock's Dep. at 48-50, 83-84. Brock again confided to Hudgins that she needed funds and Hudgins relayed this information to White. N.T. 12/16/13 at 79, 85. Hudgins also contacted Defendant Danette Thomas, who had refinanced Hudgins' mortgage. Ex. 29, Hudgins' Ans. at ¶ 52. Thomas had more than 20 years of real estate experience, including owning and operating title agencies. N.T. 12/16/13 at 161-62. Thomas co-owned and co-managed Trinity Insurance, Abstract, and Title Agency, LLC ("Trinity"), and owned Unique Management and Consulting Services, LLC ("Unique Management").
10. White asked Thomas to accompany him to Brock's home.
11. Due to a drop in Brock's credit score after her 2006 refinance, she could not refinance in 2007. N.T. 12/16/13 at 80-81.
12. Hudgins suggested that Brock sell the Property on a temporary basis to receive money. Brock's Dep. at 39. Hudgins said she had used a similar "loan" multiple times, assured Brock she would receive the cash she needed, and told her the Property would be returned to her after one year.
13. White and Thomas then discussed Brock's Property with Defendant Silver Buckman, a licensed mortgage broker, and sole owner of Fresh Start Financial Services ("Fresh Start"). N.T. 12/16/13 at 79-80; Ex. 25, Buckman's Dep. at 144;
14. Thomas knew Buckman through real estate transactions, known as "buybacks," which involved financially distressed property owners selling their property to a third party. N.T. 12/16/13 at 153-54. These owners were told they could buy their property back once their finances improved, usually in 12 to 18 months. Thomas had previously referred her clients to Buckman for buybacks. Buckman's Dep. at 82. Thomas, through Trinity, also had closed six or seven property sales in New Jersey with Buckman and/or Fresh Start. N.T. 12/16/13 at 168. Buckman's parents, Vincent and Cynthia Foxworth (the "Foxworths"), generally purchased the properties because they had good credit.
15. White learned Buckman could do a buyback, or what White described as a "bridge loan," a transaction that other mortgage brokers could not. N.T. 12/16/13 at 83. Buckman completed buyback transactions for homeowners facing foreclosure. Buckman's Prop. Facts (doc. 237) at ¶ 1.
16. Thomas and White explained to Buckman that Brock wanted to do a buyback because "they" were trying to generate cash for Brock from the Property to pay Decedent's medical bills. N.T. 12/16/13 at 79-84; Buckman's Dep. at 81, 130; Buckman's Prop. Facts at ¶ 1. Buckman knew Brock could not refinance. Buckman's Dep. at 81. She also knew Brock was not in danger of foreclosure.
17. White and Thomas went to Brock's Property on a few occasions to talk to her about the buyback. N.T. 12/16/13 at 84. Contrary to White's claim that Decedent was "fine," "coherent," and sometimes good mentally,
18. Thomas explained the buyback to Brock. N.T. 12/16/13 at 161. Brock asked Thomas if the transaction made sense and if it was something she should do.
19. Decedent also asked Thomas for her opinion. N.T. 12/16/13 at 201. Thomas told him she thought it would help him, Brock, and Alfonso Brock, Jr., their son.
20. Thomas knew Decedent would not be at the closing because of plans to move him to Georgia to live with Alfonso. N.T. 12/16/13 at 199. On September 7, 2007, Thomas notarized a power of attorney, which Brock also signed, that allowed Brock to handle the transaction alone. Thomas' Ans. at ¶¶ 70-71; N.T. 12/16/13 at 84-85, 87-88; Ex. 6, POA.
21. Thomas and Buckman spoke to Brock on the phone about the buyback. N.T. 12/16/13 at 147. The Foxworths, Buckman's parents, were going to be the "investors" in the Property.
22. The buyback would require Brock to obtain a $342,000 mortgage to repurchase the Property. Buckman's Dep. at 131. This meant Brock would have a monthly mortgage payment of $3,000, which Buckman acknowledged was "high,"
23. Brock believed she would sell her Property to the Foxworths for one year, continue to live in the Property, and the Foxworths, through Buckman, would pay the mortgage on her behalf.
24. White admits he did not understand the buyback, but thought it was a good idea. N.T. 12/16/13 at 124. He falsely claimed that Brock somehow understood this complicated transaction, even though he, who was learning "the business," did not.
25. On October 1, 2007, Hudgins and Brock opened a joint checking account at Commerce Bank in New Jersey, and deposited $100. Ex. 18, Bank Docs. at 12. The account was intended to pay Brock's bills. Brock's Dep. at 57-58.
26. Hudgins sent Brock's bank statements to her hair salon, not Brock's address, and Hudgins concealed the account from her husband. Brock's Dep. at 112.
27. On October 10, 2007, Brock, White, Thomas, Buckman, the Foxworths, and a settlement agent, brought by Buckman, attended the buyback closing at Brock's Property. N.T. 12/16/13 at 89. Brock let them into the Property because they were with White. Brock's Dep. at 101-02.
28. At the closing, Thomas did not ask Buckman to see a copy of Fresh Start's invoice or the HUD-1,
29. White attended the closing to "make sure [Brock] was happy." N.T. 12/16/13 at 89-90. He did not know the amount of money the investors received, the appraised value of the Property, or the amount of monthly mortgage payments.
30. The contract sale price for the Property was $380,000. Ex. 10, 10/10/07 HUD-1; N.T. 12/16/13 at 99-100. Brock did not negotiate the price. Brock's Dep. at 67. The then-existing mortgage was only approximately $120,000. N.T. 12/16/13 at 88, 99; 9/10/07 Payoff Statement; 10/10/07 HUD-1. Before the buyback, Brock and Decedent had approximately $253,000 in equity in the Property.
31. After the buyback, having signed over the title of Property to the Foxworths, Brock was living in a home that she no longer owned and had no control over whether that Property's mortgage was paid.
32. Buckman's mother was issued a loan for $342,000 to purchase the Property. 2007 HUD-1. The Defendants then satisfied Brock's $127,000 mortgage and divided almost all of the remaining sale proceeds among themselves.
33. Fresh Start received $99,256.89, 26% of the contract sale price of the Property. 10/10/07 HUD-1; 10/15/07, Fresh Start Inv.; N.T. 12/16/13 at 114, 173-74, 186. This money was deposited into Fresh Start's operating account. Buckman's Dep. at 31-32, 136, 141. Buckman claims Brock consented to Fresh Start's acceptance of those funds, which included a $5,000 fee.
34. Although Brock was told that more than $99,000 was deposited into Fresh Start's operating account to pay the Property's mortgage over the next year, neither the HUD-1, nor the Fresh Start invoice, referred to such an account. 10/10/07 HUD-1; Ex. 11, 10/15/07 Fresh Start Inv. Rather, Fresh Start submitted an invoice for $99,256.89 at the closing, claiming it provided the following services associated with Brock's Property: (1) locating a buyer; (2) preparing the sale contract; (3) reviewing the related documents, including appraisal and title; and (4) corresponding with the mortgage company for updates. 10/15/07 Fresh Start Inv.
35. The Foxworths received an "investor's fee" of $10,000 or $15,000. Buckman's Dep. at 28. This payment does not appear on the HUD-1. Although the HUD-1 stated that the Foxworths had paid "earnest money" of $20,000, as well as $24,077.39 in cash at the closing, the Foxworths did not make, nor did Brock receive, such payments. Buckman's Dep. at 28. Disposition of the $20,000 is unclear. Buckman, from Fresh Start's account, however, "cut a check" to Mrs. Foxworth for $24,077.39, as well as paid the Foxworths their investor's fee of either $10,000 or $15,000.
36. Thomas received $67,517.37 from the buyback, or 18% of the contract sale price, which was wired into Unique Management's operating account. N.T. 12/16/13 at 104, 159, 195, 198-99. To disguise the payment, Thomas submitted a phony Unique Management invoice to Buckman at closing for payment directly from the settlement, which kept Brock from accessing her own funds.
37. Thomas performed only minimal personal care services to Brock through Unique Management. N.T. 12/16/13 at 159;
38. Brock had no written agreement with Thomas or Unique Management for the payment of $67,517.37 over the five-year term. N.T. 12/16/13 at 199. Nearly all of Unique's revenue was generated from the proceeds of Brock's buyback transaction,
39. Although Buckman knew Thomas was going to receive money from Brock's buyback transaction, she did not know what the payment was for and did not care. Buckman's Dep. at 82.
40. Brock received merely $49,999.90, 13% of her Property's sale price, and thought she would have received more. 10/10/07 HUD-1; Brock's Dep. at 63-64.
41. After the closing, Brock paid Hudgins $1,000 for her "assistance." Brock's Dep. at 113.
42. On October 19, 2007, Brock's net proceeds of $49,999.90 was wired into the joint account Hudgins controlled. Bank Docs. at 17. On October 24, 2007, Brock and Hudgins wired Alfonso, Brocks' son, $20,000.
43. On June 30, 2008, Brock and Hudgins' CD matured and the joint account was credited $20,595.80. Bank Docs. at 25-26.
44. When things "were getting a little messy" concerning her dealings with Brock, Hudgins told Brock that she was taking her own money out of the joint account. Brock's Dep. at 112. Hudgins falsely testified Brock owed her $13,000 for past debts. N.T. 12/16/13 at 47. On July 10, 2008, Hudgins: withdrew $20,000 from the joint account; cashed $1,000; deposited $1,000 into a separate checking account; and deposited $18,000 into a separate savings account.
45. The remainder of the joint account, excluding the CD, was eventually spent. Bank records establish Hudgins withdrew further money from the joint account.
46. Following the closing, Brock paid White an additional $5,400 to "clean up" her credit. Hudgins' Ans. at ¶ 116; N.T. 12/16/13 at 90. Although White admits he was still learning "the business," White accepted the fee. N.T. 12/16/13 at 93. White falsely claimed he sent letters to dispute items on Brock's credit report.
47. Brock became aware that the Property's mortgage was not being paid, as Defendants had promised, when Hudgins said Buckman was having money troubles. Buckman's Dep. at 81. Brock questioned Hudgins about the Property after neither Thomas nor Buckman responded to Brock's inquires.
48. Brock received mail addressed to the Foxworths at the Property. Brock's Dep. at 80. Hudgins observed Brock opening mail to the Foxworths, told her that it was illegal for her to do so, and said she should contact the Foxworths to determine what was happening with the Property. Hudgins' Ans. at ¶ 119. Brock opened a notice of foreclosure.
49. Buckman told Thomas that Mrs. Foxworth was obtaining a loan modification. N.T. 12/16/13 at 190. Buckman falsely claims the loan modification was for Brock's benefit, "in an attempt to obtain a feasible payment for Mrs. Brock to pay in order to remain in the property." Buckman's Prop. Facts at ¶ 6. Buckman also told Thomas that Fresh Start's bank account, containing the money that was supposed to pay Brock's mortgage, had been frozen due to a lawsuit brought against her in connection with another buyback transaction. N.T. 12/16/13 at 190; Buckman's Dep. at 103.
50. Thomas failed to take any actions to protect Brock from Buckman's failure to have Fresh Start or the Foxworths pay the mortgage, as promised.
51. Brock told Thomas she did not care how it was going to happen, but she wanted to stay in her family's Property. N.T. 12/16/13 at 192. Thomas and Buckman discussed a rental agreement with Brock for the amount of the modified mortgage.
52. Buckman did not know what mortgage payments were made on Brock's Property. Buckman's Dep. at 29-30. She did not know whether the Property went into foreclosure before the 12 months expired, after which Brock supposedly would have been able to repurchase the Property.
53. In August 2009, Brock stopped talking to Hudgins. N.T. 12/16/13 at 53-54; Hudgins' Ans. at ¶ 132. On August 24, 2009, Hudgins closed the joint account. Bank Docs. at 43-44.
54. Unique Management is no longer operating and no longer has an operating account. N.T. 12/16/13 at 112, 205.
55. Fresh Start closed in 2008 and no longer has an operating account. Buckman's Dep. at 76, 144.
56. On July 26, 2011, pursuant to a settlement in this case, Mrs. Foxworth deeded the Property back to Brock, publically acknowledging that the Deed transferring title from Brock to the Foxworths had been obtained by fraud and should be voided. Ex. 19, Confirmatory Deed.
1. Chicago seeks judgment on the following claims: (1) breach of contract against Thomas and Buckman; (2) breach of fiduciary relationship against all Defendants; (3) fraud against all Defendants; (4) civil conspiracy to breach fiduciary duties and commit fraud against all Defendants; (5) violation of 18 U.S.C. § 1962(c) ("RICO") against all Defendants; and (6) § 1962(d) ("RICO conspiracy") against all Defendants. Chicago seeks compensatory damages, interest, punitive damages, and attorney's fees.
2. Chicago did not submit proposed conclusions of law for the following claims in the Amended Complaint: (1) Unfair Trade Practices and Consumer Protection Law (Count IV); (2) Real Estate Settlement Procedures Act (Count V); (3) Negligence (Count VI); (4) Concerted Tortious Conduct (Count IX); (5) Action to Quiet Title (Count X); and (6) Action to Quiet Title, in the alternative (Count XI). Thus, those claims are dismissed. Further, Chicago has failed to assert any proposed conclusions of law against Defendants Trinity, Unique Management, Fresh Start, or American One. Thus, those Defendants also are dismissed.
3. Chicago did not allege a breach of contract claim in its Amended Complaint.
4. A fiduciary relationship exists "whenever one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms."
5. A plaintiff asserting a breach of fiduciary duty claim must show: (1) a confidential relationship with the defendant; (2) the defendant intentionally or negligently failed to act in good faith and solely for plaintiff's benefit; (3) an injury by the plaintiff; and (4) the defendant's failure was "a real factor" in bringing about plaintiff's injuries.
6. "Contractual relationships . . . do not ordinarily give rise to confidential or fiduciary relationships between the parties."
7. "[A] business association may be the basis of a confidential relationship only if one party surrenders substantial control over some portion of his affairs to another."
8. Hudgins had a confidential relationship with Brock.
9. Hudgins intentionally failed to act in good faith and Brock's best interest by withdrawing $20,000 from the joint account and depositing $19,000 into her personal accounts, leaving Brock a minimal residual. She also failed to act in good faith by advising Brock to engage in a buyback, referring Brock to White and Thomas, and assuring Brock she would receive the money she needed and her Property would be returned.
10. Brock was financially injured by Hudgins' actions at a time she already was in desperate financial straits. The money Hudgins took constituted almost half of the proceeds Brock received from the buyback. Further, due to Brock's reliance on Hudgins' advice and referral to White and Thomas, Hudgins caused Brock to lose title and equity to her Property. The evidence established by a preponderance of the evidence that Hudgins is liable for breaching her fiduciary duty.
11. Brock also had a confidential relationship with White, whom she knew since he was a child, and called her "Auntie." On the day of the closing, Brock allowed all of the individuals engaged in the scheme to enter her Property only because they came with White. As White noted, Brock believed he would never harm her.
12. White failed to act in good faith or in Brock's best interest by allowing Thomas to divert from Brock more than $67,000 for five years of future "personal care services" out of the mortgage buyback proceeds, and by having Brock pay him $5,400 for credit repair services, an unreasonable amount for the minimal actions he claimed to have provided. White knew of Brock's financial distress dating back before 2006. White also benefited from the payment to Thomas because Thomas paid his personal bills from Unique Management's operating account, which was funded almost exclusively from Brock's buyback.
13. Brock incurred a loss of more than $72,000, as well as the loss of title and equity in her Property, due to White's role in the buyback scheme. This injury was a proximate result of Brock's trust in White and his support of Thomas. White's actions were a real factor in Brock's loss of the equity in her home and additional money after the buyback.
14. The evidence established by a preponderance of the evidence that White is liable to Brock for breaching his fiduciary duty.
15. Thomas had a confidential relationship with Brock.
16. Thomas failed to act in good faith and for Brock's benefit by advising her to enter into the buyback, accepting more than $67,000, and keeping it without justification or Brock's informed consent.
17. Amazingly, Thomas claims Brock breached their personal care services agreement, because she would no longer accept Thomas' calls. Thomas' Findings at 4. Brock, however, stopped talking to Thomas only after Thomas asked for Brock's pension statements and personal information, as a way to obtain more money from Brock after the Property was in foreclosure. Thomas, instead of finding a way to hold Buckman accountable for failing to pay the Property's mortgage, asked Brock for more money to obtain a rental agreement, further demonstrating the breach of her duties.
18. Thomas also argues Brock "willingly and without coercion, executed a legally binding Agreement of Sale[,]" and, thus she did not "advise, instruct or coerce Brock into selling her home." Thomas' Prop. Findings at 1-2. Brock, however, executed the agreement based on her reliance on Thomas and believed Thomas could advise her about the use of her Property to obtain money. By Thomas' admission, Brock sought her advice because of her real estate expertise and Thomas acted as a liaison between Brock and Buckman in translating the buyback scheme.
19. Brock was harmed by Thomas' breach of her fiduciary duties, which caused Brock's financial loss of over $67,000 from the buyback proceeds directly to Thomas, the loss of title in her family Property, and the loss of equity in the Property. A preponderance of the evidence establishes Thomas is liable to Brock for breaching her fiduciary duty.
20. Buckman, a mortgage broker, owed a fiduciary duty to Brock, the principal.
21. Brock was an elderly, unsophisticated borrower, desperate for money for home improvements and medical bills, and entrusted Buckman with the buyback transaction. Brock gave Buckman a substantial portion of the sale proceeds because she relied on Buckman to make monthly mortgage payments on the Property, as Buckman had promised. Brock also signed the Deed of the Property over to Buckman's parents, whom Buckman falsely portrayed as "investors."
22. Buckman breached her fiduciary duty by failing to: make the mortgage payments; account for the money deposited into Fresh Start's account; and ensure Brock received all of the funds to which she was entitled out of the buyback transaction. Brock was harmed by Buckman's breach of fiduciary duty. Buckman was a real factor in bringing about Brock's injury by orchestrating the buyback and failing to pay the mortgage. By a preponderance of the evidence, Buckman is liable for breaching her fiduciary duty.
23. To prove fraud, a plaintiff must establish the following by clear and convincing evidence: "(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance."
24. After Brock twice confided to Hudgins about her financial problems, Hudgins convinced Brock to engage in a buyback that Hudgins claimed would give Brock the money that she needed and return the Property after one year. Hudgins told Brock that she had previously completed a buyback and received money. Such representations were material. Brock needed money for medical bills and home improvements.
25. Hudgins made these statements knowing their falsity or with reckless disregard as to their truth, because she did nothing to make sure that Brock's Property would be protected in the transaction, and despite referring Brock to White and Thomas, she did not investigate whether Brock would be taken care of by White and Thomas or whether Brock's Property would be returned to her. Hudgins' actions also demonstrate her reckless disregard to whether Brock would receive the money she needed from the buyback. Hudgins accepted $1,000 from Brock for being helpful with the buyback, and was aware that Brock received less than $50,000 from the buyback, which was transferred into their joint account, and from which Hudgins took $19,000 for herself.
26. Hudgins intended for Brock to rely on her representations because she knew she would likely receive money from Brock after the buyback. Hudgins advised Brock about her finances and allowed her to open the joint account, with statements mailed to a third party. Brock was justified in relying on her longtime friend and beautician, who had been giving her money, food, and advice on her finances and Property. Had Hudgins not made representations to Brock about the buyback, Brock would not have suffered the subsequent financial injuries.
27. By clear and convincing evidence, Hudgins is liable for defrauding Brock.
28. White represented to Brock that he was going to provide her with credit repair services and that he thought it was a good idea to engage in the buyback. He made representations to Brock knowing of their falsity or at least with reckless disregard to their falsity. He had never provided credit repair services before, he was only then learning "the business," the only person teaching him was Thomas, and he has failed to produce any evidence of his "services." White also claims he did not understand the buyback transaction, yet was present with Thomas during discussions with Brock and knew that Buckman was a broker who could conduct "bridge-loans" or buybacks. White, despite his claim that he did not understand the specifics of the transaction, knew that Brock, in her age and health, would not be able to repurchase the Property at the end of the year.
29. Brock justifiably relied on White's representations about his credit repair services and his encouragement to engage in the buyback. Brock was harmed by White's role in her loss. Clear and convincing evidence shows White is liable for defrauding Brock.
30. Thomas made several representations to Brock about the buyback, including that money would be placed into an escrow account and used to pay the mortgage, and that Brock would be able to buy back the Property at the end of a year or a year and one half. Thomas also represented that she would perform future personal care services for Brock for five years.
31. Thomas' representations about the buyback were material to Brock, who sought to protect the Property that had been in her family for approximately 80 years.
32. Thomas made those representations knowing of their falsity, or at least with reckless disregard to whether they were true. Although Thomas had real estate experience and had advised Brock and Decedent to enter into the transaction, she failed to review the HUD-1 or ask to see Fresh Start's invoice. Thomas' sole objective at the closing was to provide Unique Management's invoice to Buckman and receive her $67,000 payment.
33. Thomas also falsely told Brock that she would be able to get her house back at the end of 12 to 18 months. Thomas could not have believed that Brock, having poor credit, health problems, along with her ailing husband, could possibly purchase the Property within one year of selling it after receiving less than $50,000 for a Property worth $380,000. Moreover, Thomas falsely said Buckman was going to pay the Property's mortgage. She did not ask Buckman how much she was keeping for the mortgage payments. Even after the Property went into foreclosure, Thomas failed to hold Buckman responsible.
34. Thomas intended to mislead Brock because Thomas was going to be paid more than $67,000 from the buyback, which Brock could not have afforded otherwise. Conveniently for Thomas, she received prepayment for her services, ensuring her receipt of that money even after Brock was left without any money or her family home.
35. Brock also reasonably relied on Thomas' misrepresentations because Thomas claimed she had real estate experience, and White and Hudgins, both of whom she trusted, introduced her to Thomas.
36. Finally, Brock's financial loss of more than $67,000 and the loss of money related to the buyback was proximately caused by Brock's reliance on Thomas' misrepresentations. If Thomas had not been introduced to Brock, Brock would not have entered into the buyback transaction. Thomas took the money for services that she admits she never performed.
37. Chicago has shown by clear and convincing evidence that Thomas is liable to Brock for fraud.
38. Thomas argues: she was not a party to the scheme to defraud Brock; Brock completed a lawful sale of her Property; and Brock was willing to go forward with the sale because she needed the money. Thomas' Prop. Findings at 1-3. Brock, however, was lulled into transferring the Property's title to the Foxworths based on Thomas' misrepresentations. Brock's need for money and vulnerability made her particularly susceptible to dependency on someone purporting to be an expert in real estate.
39. Buckman represented to Brock that the buyback proceeds would be held in escrow and used to pay the Property's mortgage until Brock re-purchased the Property after one year.
40. These representations were material to Brock's consent to the buyback, because Brock needed money and would have wanted to know if she was going to lose her family Property.
41. Buckman knew the representations were false. Buckman put the funds in Fresh Start's operating account and failed to pay Brock's mortgage, resulting in foreclosure. Buckman did not know how many months of the Property's mortgage were paid. She also knew Brock would not likely be able to repurchase the Property in a year, given the Property's value, Brock's poor credit, age, medical bills, and husband's declining health.
42. Buckman intended for Brock to rely on her representation, so that she could receive the majority of Brock's buyback proceeds, Fresh Start's fee from the buyback, money for the Foxworths, and a fee from American One. Her invocation of the Fifth Amendment at the trial resulted in all evidentiary inferences against her.
43. Brock was justified in relying on Buckman's representations, because Buckman claimed to have knowledge of the real estate and buyback transactions.
44. Buckman argues Brock could not qualify to repurchase the Property because Decedent died during the 12-month period following the closing. Buckman's Prop. Findings at ¶ 4-5. This claim is inconsistent with Buckman's concession that she failed to pay the mortgage, resulting in the foreclosure.
45. Brock's financial loss was proximately caused by her reliance on Buckman's misrepresentation that the money she took was going to pay the mortgage and that the mortgage was in fact going to be paid.
46. There is clear and convincing evidence that Buckman is liable for fraud.
47. The elements of civil conspiracy claim are: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and, (3) actual legal damage[.]"
48. Hudgins, White, Thomas, and Buckman conspired to violate their fiduciary duties,
49. Defendants acted with a common purpose of violating their duties and committing fraud through their interactions with Brock and their close relationships with each other. Hudgins referred Brock to White and Thomas to obtain money from the Property. White and Thomas went together to Brock's Property to gain Brock's trust and provide "advice" on how to use her Property to obtain funds. White and Thomas further intended to injure Brock by taking her money for fictitious services. Thomas and White then contacted Buckman, who had previously worked with Thomas. White knew Buckman could do a buyback, something other brokers could not, even though Brock had poor credit and an inability to pay a large mortgage.
50. Defendants performed the following overt acts in pursuit of their common purpose: (1) Hudgins suggested the buyback to Brock; (2) Hudgins referred Brock to White; (3) White introduced Thomas to Brock; (4) White and Thomas stole $67,000 disguised as prepayment for fictitious services and $5,400 for bogus credit repair services; (5) Thomas advised Brock and Decedent to sell their Property as part of the buyback; (6) Thomas spoke to Buckman about Brock's Property; (7) Thomas relayed details about the transaction to Brock and Decedent; (8) Hudgins opened a bank account with Brock and put an address for a third-party on the account; (9) Thomas submitted Unique Management's invoice to Buckman for prepayment for fictitious services; (10) Buckman had her parents pose as "investors" to purchase Brock's Property; (11) Thomas arranged for and notarized Decedent's power of attorney, which ensured that neither Decedent, nor Alfonso, would attend the closing; (12) White, Thomas, and Buckman went to Brock's Property for the "closing;" (13) Buckman took the money from the transaction and put it into Fresh Start's operating account; (14) Thomas stole more than $67,000; (15) White stole $5,400 after the buyback for "credit repair services;" (16) Buckman gave her parents an investor fee; and (17) Hudgins accepted $1,000 from Brock for being helpful with the buyback and the joint account, where Brock's buyback proceeds were wired.
51. Brock suffered actual legal damages in the buyback transaction, the culmination of Defendants' conspiracy to violate their fiduciary duties and commit fraud.
52. Chicago has shown by a preponderance of the evidence that Hudgins, White, Thomas, and Buckman engaged in a conspiracy, and are jointly and severally liable for the damages they caused Brock.
53. Although Chicago asserts a RICO claim against all the Defendants in its proposed conclusions of law, Buckman is the only remaining Defendant in this case named under this count.
54. "Any person injured in his business or property by reason of a violation of [the RICO statute may sue and recover] threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee[.]" § 1964(c).
55. To establish a civil RICO claim, a plaintiff must prove, by a preponderance of the evidence, that a person: (1) conducted (2) an enterprise (3) through a pattern (4) of racketeering activity.
56. There are two types of enterprises: (1) "organizations such as corporations and partnerships, and other `legal entities[;]'" or (2) "`any union or group of individuals associated in fact although not a legal entity.'"
57. Chicago asserts an "association in fact" enterprise, which must be shown by: (1) the existence of an ongoing organization, formal or informal; (2) the functioning of a continuing unit; and (3) an existence separate and apart from the alleged pattern of racketeering.
58. A "pattern of racketeering activity" requires at least two acts of racketeering activity within the span of 10 years. § 1961(1) (defining "racketeering activity"); § 1961(5) (requiring two acts). A plaintiff must show that "(1) the defendants' predicate acts are related, that is they have similar `purposes, results, participants, victims, or methods of commission,' and (2) the defendants' conduct is "continuous.'"
59. Predicate acts are specific federal and state offenses, § 1961(1), including mail and wire fraud. § 1341 (mail fraud); § 1343 (wire fraud). Such acts must be "continuous" and a "short term scheme threatening no future criminal activity will not suffice."
60. Chicago alleges that Buckman, along with the Defendants Fresh Start, American One, and Esposito who are named in the Amended Complaint, conducted an enterprise through a pattern of racketeering with predicate acts of wire fraud.
61. Chicago failed to establish any type of structure between Buckman, Fresh Start, American One, and Esposito concerning decision making with the alleged enterprise. I cannot determine how they conducted the affairs of the alleged enterprise or whether their actions were continuous.
62. Moreover, Chicago admitted evidence of only one predicate act—that Buckman caused the wire transfer of money into Thomas' account.
63. Thus, Chicago has failed to show, by a preponderance of the evidence, that Buckman is liable for violating RICO.
64. It is also unlawful to conspire to violate the RICO statute. § 1962(d);
65. Because it has failed to show a substantive RICO violation, Chicago also has failed to show Defendants are liable for conspiracy to violate RICO.
66. Thus, Chicago has failed to show by a preponderance of the evidence that the Defendants are liable for a RICO conspiracy.
67. Defendants are jointly and severally liable for the damages they caused Brock.
68. Defendants are liable for the amount of Brock's contract sale price of her home ($380,000), less the amount of cash and benefits Brock received from the buyback ($169,644.99).
69. Chicago seeks punitive damages and interest from all Defendants.
70. Because I find Chicago failed to prove its purported RICO claims, I deny its motion for attorney's fees under the statute. Although Chicago also moves for attorney fees for its successful breach of fiduciary duty and civil conspiracy claims, it has failed to cite any supporting law for its request. Chicago's Prop. at 40;
71. An appropriate Order follows.
Brock had entered into a Settlement Agreement with some of Defendants in this case and assigned her interests, rights, and claims to Chicago against the remaining Defendants in exchange for "good and valuable consideration[.]" Assignment of Pl.'s Rights (doc. 182) at 2.
Chicago also claims that Hudgins', mistyped as White's, "fiduciary breach has given rise to damages in the principal amount of the proceeds that Thomas and White received from the sale, which was $25,200," Chicago's Prop. at 31, but is not clear what this figure is based on or why Hudgins should be liable.