Funny, isn't it? You know, the way double standards work in our society. Take, for example, virtually identical crimes or torts.
In the first set of facts, you have a bunch of idiots who engaged in some silly-ass bit of financial fraud involving tens of thousands or hundreds of thousands of dollars. They get caught. The prosecutors walk out before the cameras and talk tough about crime and punishment, and after all the pictures are taken and the quotes written, we are left with that last warning about how a message has been sent. And, yes, they promise, we're sending these folks to jail!
In the second set of facts, you have a bunch of educated, intelligent Masters of the Universe who engaged in sophisticated fraud involving billions and trillions of dollars. Their names, however, never quite make it into a civil or criminal caption. It's always about the institution -- as if banks and brokerage firms are run by robots. The prosecutors walk out before the cameras and talk tough about crime and punishment, and, yet again, after all the pictures are taken and the quotes written, we are left with that last warning about how another message has been sent. In this second version of justice, however, no human being seems to get named in any Complaint caption and no one ever seems to go to jail. It's about a check, albeit a large one, but, still, it comes down to nothing more than a number on a piece of paper, and the tab usually gets paid by shareholders of a public company.
Consider today's BrokeAndBroker.com Blog in which we present a bit of alleged banking fraud involving what I call those "first set of facts" small fry.
83 Cathedral Avenue
According to federal prosecutors, in 2003, lawyer Nicholas Pellegrini sold 83 Cathedral Avenue, Hempstead, NY (a residential house) to a relative of Sofia Atias; and, thereafter, in 2007, the relative deeded the property to both himself and Sofia Atias. About three months after the joint deeding, Sofia Atias signed off on a $636,000 mortgage for the property from Countrywide FSB (which was subsequently acquired by Bank of America) and a $79,500 line of credit from the Bank (Countrywide FSB and Bank of America collectively referred to as the “Bank”). READ FULL-TEXT INDICTMENT: United States of America v. Sofia Atias, Joseph Atias, Nicholas A. Pellegrini, and Paual Berckhoff a/k/a “Paula Pellegrini”(EDNY, CR-14-403, July 17, 2014).
NOTE:The charges in the indictment are merely allegations, and the defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law.
Now enter the Great Recession replete with a real estate crash and whatever else you wish to toss into the mix of the crappy economic picture from 2008 through 2011. By 2011, Sofia Atias's mortgage and line of credit were in arrears and the Bank had begun foreclosure proceedings.
A Ray of Hope
Sometime around June 21, 2011, the Sacred Heart Academy, an all-girls Catholic high school, located at 47 Cathedral Avenue, Hempstead, NY, wrote to Sofia Atias expressing its interest in purchasing 83 Cathedral Avenue. The school wanted to build an athletic field and was looking to acquire property adjacent to its campus. According to federal prosecutors, for the next several months, Sophia and Joseph Atias (husband and wife), and Nicholas Pellegrini negotiated the sale of the property to the school for $925,000.
The Short Of It
Around October 21, 2011, Sofia Atias wrote to the Bank requesting its agreement to a short sale of 83 Cathedral Avenue. Allegedly, she informed the Bank that she had no ability to repay the mortgage/line of credit debit balances. The Indictment asserts, however, that she “well knew and believed, Sacred Heart Academy had offered to pay $925,00 for the real property, thus making a short sale unnecessary.”
In furtherance of the proposed short sale, Sofia Atias and Paula Berckhoff (the wife of Nicholas Pellegrini and also known as Paula Pellegrini) purportedly submitted a contract, presenting the proposed transaction as “arms-length” and involving the Jefferson Property Corp.; and also presenting a sales contract to buyer Paula Berckhoff for $385,000, which eventually increased to $480,000. The Indictment alleges that, in fact, Paula Berkchoff was the secretary and treasurer of Jefferson Real Property Corp. and that she was, in effect, operating as a straw buyer for Sofia Atias.
The Indictment asserts that pursuant to their representation concerning the sale of 83 Cathedral Avenue, Atias and Berckhoff represented that
- neither would receive any transaction proceeds,
- the contemplated sale was not "flipping" or "straw buying," and
- they had, in essence, disclosed all material facts to the Bank.
Not Adding Up
Around March 19, 2012, the Indictment alleges that Sofia and Joseph Atias, Nicholas A. Pellegrini, and Paula Berckhoff caused Jefferson Real Property Corp to sell 83 Cathedral Avenue to the Sacred Heart Academy for the 2011 negotiated price of $925,000.
As a result of the Bank accepting the short sale, the Indictment alleges that the institution sustained a $539,867 loss when it released Sofia Atias from further liability on her unpaid debts.
A Federal Case
As unsealed on July 22, 2014, the Indictment charged the defendants with bank fraud and conspiracy. If convicted, each defendant faces up to 30 years of imprisonment, fines, and the forfeiture of $539,000 in allegedly illegal profits arising from the scheme.
“Through a web of lies and false documents, the defendants took advantage of a school’s desires to improve its students’ athletic facilities, lied to win concessions from a bank, and then lied again by ‘flipping’ the property and defrauding the bank of over half a million dollars. This is not a case about tough bargaining. This is fraud, pure and simple,” stated United States Attorney Lynch.
FBI Assistant Director-in-Charge Venizelos stated, “As alleged in the indictment, while the defendants did not brandish a weapon, they stole over half a million dollars from Bank of America based upon their false misrepresentations and filing of false documents with the victim-lender. Bank fraud burdens lenders with bad loans and weakens our financial markets. Individuals who engage in this criminal activity should be reminded that they will be vigorously investigated and held accountable.”
Bill Singer’s Comments
Okay. All well and fine. The four Defendants allegedly engaged in deceptive, fraudulent activity and are now facing fines, forfeiture, and hard time in federal prison. How did the US Attorney put it? Oh yeah, this is “not a case about tough bargaining. This is fraud, pure and simple.” And let’s not forget the equally tough appraisal from the FBI’s Assistant Director “while the defendants did not brandish a weapon, they stole over half a million dollars from Bank of America . . .”
Permit me, dear reader, to simply note that the financial misconduct and economic crisis caused by many major financial institutions that culminated in the Great Recession were also not about “tough bargaining.” To the contrary, the crimes and/or torts were “fraud, pure and simple.” And while not a single banker or broker or trader brandished a weapon, billions and trillions of dollars were stolen from our economy and neighborhoods.
Interesting -- isn't it? -- that when the pure-and-simple-fraud involves four purportedly low level hustlers like the Defendants in this rip-off of Bank of America, the high dudgeon of the Department of Justice comes crashing down upon their heads, accompanied by threats of fines and prison. Which stands in stunning contrast to the manner in which the Bank of America and other too-big-to-fail financial institutions are treated when they engage in pure-and-simple-fraud that stole billions and trillions of dollars from our economy and neighborhoods.The big boys at the big firms remain largely untouched by prosecutors, whereas the small fry get slammed.
If you've been a stockbroker long enough, it's likely that some customer will file a lawsuit against you and your firm. Frankly, you may have screwed up and, in all fairness, you should be named as a defendant or respondent. There are times, however, when you may be outraged -- I really, really, really didn't do anything wrong! Do you have an alternative to taking the slaps in the face and turning the other cheek? The BrokeAndBroker Blog examines one recent FINRA arbitration in which a named stockbroker not only denied the customer's charges but filed a counterclaim.
Case In Point
In a Financial Industry Regulatory Authority (“FINRA”) Arbitration Statement of Claim filed in April 2013,
public customer claimants Charles and Frances Prignano alleged breach of
fiduciary duty, negligence, and violation of FINRA rules in connection with
purportedly unauthorized trades by Respondent Pacitto in the Claimants’ E*TRADE
account. Unspecified damages, fees, interest, and costs were sought. In the
Matter of the FINRA Arbitration Between Charies M. Prignano and Frances P.
Prignano, Claimants/Counter-Respondents, vs. T. Rowe Price Investment Services,
Inc., Respondent –and- Michele Pacitto, Jr., Respondents/Counter-Claimants
(FINRA Arbitration 13-00969, July 21, 2014)
Respondents T. Rowe Price and Pacitto generally denied the
allegations and asserted various affirmative defenses.
Respondent Pacitto counterclaimed against the Claimants and sought unspecified damages (including punitive damages), interest,
fees, and costs in connection with his assertions of abuse of process,
intentional interference with employment, intentional interference with prospective
business advantage, and extreme and outrageous conduct causing emotional
distress. Further, Pacitto sought an expungement of the arbitration from his
Central Registration Depository record (“CRD”). Underscoring the testiness of
this case, the FINRA Arbitration Decision asserts that Pacitto alleged that:
[C]laimants' claims were asserted to shift financial
responsibility from Claimants' own investment decisions, and to punish
Respondent Pacitto and his family for alleged unwelcomed social encounters.
Online FINRA Records
Online FINRA records as of July 25, 2014, indicate that
Pacitto was “Discharged” by T. Rowe Price on April 23, 2013, based upon
INDIVIDUAL PERFORMED ACTIVITIES THAT WERE OUTSIDE THE SCOPE
OF HIS EMPLOYMENT AND THE FIRM’S POLICY BY PROVIDING AN INVESTOR WITH FINANCIAL
Those same online FINRA records reference the Prignanos’
arbitration and suggest the “Alleged Damages” were $75,000.
On March 25, 2014, Claimants filed a Notice of Dismissal of
Respondent T. Rowe Price Investment Services, Inc.
The FINRA Arbitration Panel denied all claims by Claimants.
The Panel found Claimant Charles Prignano liable and ordered
him to pay to Respondent Pacitto:
- $75,000 in compensatory damages;
- $75,000 in punitive damages of $75,000 pursuant to Colo.
Rev. Stat. §13-21-102(1)(a).
- $250.00 as the Counterclaim filing fee reimbursement.
SIDE BAR: Colo. Rev. Stat. §13-21-102. Exemplary damages.
(1) (a) In all civil actions in which damages are assessed by a jury for a wrong done to the person or to personal or real property, and the injury complained of is attended by circumstances of fraud, malice, or willful and wanton conduct, the jury, in addition to the actual damages sustained by such party, may award him reasonable exemplary damages. The amount of such reasonable exemplary damages shall not exceed an amount which is equal to the amount of the actual damages awarded to the injured party. . .
Finally, the Panel recommended the expungement of the
arbitration from Respondent Pacitto’s CRD based upon its findings that:
Bill Singer's Comment
The allegations were clearly erroneous. For example, the
Statement of Claim alleged that the trading in the E*TRADE accounts of the
Claimants was done without the Claimants' permission or knowledge. That was one
of many clearly erroneous allegations. Indeed, all of the trades were either
made by Claimant Charies M. Prignano, or with the consent and knowledge of
Claimant Charies M. Prignano.
The registered person. Respondent Pacitto, was not involved
in an alleged investment-related sales practice violation, forgery, theft,
misappropriation or conversion of funds. The trades complained of were all made
by Claimant Charies M. Prignano himself, contrary to the allegations in the
Statement of Claim. All of the other trades addressed in the arbitration, were
either made by Claimant Charles M. Prignano himself, or with the consent and
knowledge of Claimant Charies M. Prignano. . .
Compliments to this FINRA Arbitration Panel for taking the time to explain their rationale.
Also, compliments to Respondent Pacitto for fighting the good fight and not merely sitting back and taking the blows -- a classic case of slipping and counterpunching.
More often than not, the claims brought by public customers are justified. I'm not going to be a hypocrite and pretend otherwise. There are many claims by public customers, however, that are without merit.
If an individual registered persons truly feels victimized by seemingly baseless claims, then a counterclaim coupled with a motion to expunge should be considered. Certainly, there are times when it may be counterproductive or inadvisable to pursue such an aggressive strategy against a public customer, and you should discuss the pros and cons of such tactics with your attorney; but, as this case demonstrates, industry respondents need not always play the role of a hapless and helpless victim. And if you are particularly outraged about the attempted damage to your reputation, you can even toss in a demand for punitive damages.