Sunday, April 19, 2009

Dementia-Suffering Foreclosure Rescue Scam Victim Now Lives Penniless; Brooklyn DA's Office Slow To Pursue Prosecution

A recent article in The New York Times on foreclosure rescue scams contained this excerpt describing one victim who was swindled out of her home:
  • [T]here is Dr. Janet Mitchell, 58, the daughter of a butler and a maid who became chief of perinatology at Harlem Hospital Center and a national advocate for black pregnant women with H.I.V.

  • In 1992, she purchased a handsome and affordable brownstone in Fort Greene, Brooklyn. Then early-onset dementia struck. Dr. Mitchell stopped paying her bills in 2005, leading lenders to foreclose. Soon afterward, she walked into a mortgage company, according to a lawsuit filed by her niece.

  • A mortgage specialist persuaded her to sign a handwritten transfer with no lawyer present and paid off her $210,000 in loans. Then he refinanced her house, taking $1.7 million in cash. The doctor now lives, penniless, with her sister in Colorado.

  • South Brooklyn Legal Services gave the files to the Brooklyn district attorney’s office. The prosecutors have not yet brought a case.(1)We are constantly trying to get them to pursue this case,” [co-director of the foreclosure prevention project Jessica] Attie said. “These are the most defenseless of all.”

Source: Prosecutions Lag as N.Y. Foreclosure Frauds Surge.

(1) Sol Wachtler, the former Chief Judge of the New York Court of Appeals, once jokingly observed that a prosecutor could persuade a grand jury to "indict a ham sandwich." If this is the case, obtaining an indictment in an egregious case like this should be easier than indicting the defenseless ham sandwich. Possible charges include, but are not limited to:

  • Forgery (“[F]orgery is committed when a defendant, by fraud or trickery, causes another to execute a . . . document where the signer is unaware, by reason of such trickery, that he is executing a document of that nature.” People v. Martinez, (2008) 161 Cal. App. 4th 754; 74 Cal. Rptr. 3d 409, quoting People v. Parker (1967) 255 Cal.App. 2d 664, 672); see also Marden v. Dorthy, 160 N. Y. 39, 54 N.E. 726; (NY 1899),
  • Exploitation of a vulnerable adult,
  • Grand theft,
  • Fraud by deception,
  • Securing writings by deception,
  • Theft by false pretenses.

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