United States v. Nivis Martin ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11002
________________________
D.C. Docket No. 1:13-cr-20457-JIC-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NIVIS MARTIN,
a.k.a. Nivis Alvarez,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 13, 2018)
Before JORDAN and JILL PRYOR, Circuit Judges, and REEVES, * District Judge.
JILL PRYOR, Circuit Judge:
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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This is Nivis Martin’s second appeal relating to her conviction for crimes
arising out of a mortgage fraud scheme in Miami, Florida. In her first appeal,
Martin challenged the district court’s order that she pay nearly $1 million in
restitution to three banks under the Mandatory Victims Restitution Act of 1996
(“MVRA”), 18 U.S.C. § 3663A. We concluded that even though the banks were
not the original lenders and merely purchased the fraudulently procured mortgages
on the secondary market, they still could recover restitution as victims under the
MVRA. We nonetheless remanded for the district court to determine anew the
restitution amounts, taking into account that the successor lenders may have paid
discounted prices to purchase the fraudulently procured mortgages on the
secondary market.
On remand, the government, apparently while preparing to address whether
the successor lenders paid discounted prices to acquire the mortgages, learned that
the facts of the underlying transactions did not support its theories advanced at the
first sentencing hearing about why two of the lenders were victims under the
MVRA. At the restitution hearing on remand, the government contended for the
first time that the Federal Deposit Insurance Corporation (the “FDIC”) was the
proper victim for one property because it had taken over as receiver for the original
lender. Regarding a second property, the government claimed, again for the first
time, that Bank of America Home Loans (“Bank of America”) was a victim, not
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because it purchased the loan from the original lender, but because it acquired the
original lender through a corporate merger. The district court accepted the
government’s new arguments and entered a new restitution award, determining that
the FDIC and Bank of America were victims under the MVRA.
Martin now challenges the district court’s determination that the FDIC and
Bank of America were victims under the MVRA. She also challenges the district
court’s recalculation of the restitution amounts, arguing that the government again
failed to present evidence regarding the amounts paid by the purported victims to
purchase the fraudulently procured mortgages. After careful review, we affirm the
district court’s order in part and remand with limited instructions to correct a minor
mathematical error regarding Bank of America’s restitution award.
I. BACKGROUND
A. The Fraudulent Scheme
Martin’s mortgage fraud scheme involved three properties in Miami, but
only two of those properties are relevant for purposes of restitution in this appeal.1
The first property was an apartment that Martin and her ex-husband owned (the
“Miami Apartment”), which they purported to sell to Martin’s father for $495,000.
To finance the purchase, Martin’s father applied to First Franklin Corp. (“First
1
The bank that owned the mortgages on the third property declined any restitution after
we remanded this case following Martin’s first appeal. As a result, the government decided not
to pursue any restitution related to that property. The details surrounding that property are
therefore irrelevant to our decision here.
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Franklin”) for two mortgages totaling the full purchase price. In his mortgage
application, Martin’s father lied about his assets and monthly income and failed to
disclose that he was related to Martin or that she had given him the money for his
initial deposit. First Franklin approved the application and loaned Martin’s father
the money. After the sale closed, Martin and her ex-husband paid off the previous
mortgage on the property and pocketed about $216,000 in cash. For over a year,
Martin and her ex-husband paid the new mortgages. Then they stopped paying, the
mortgages went into default, and the Miami Apartment was sold at a short sale for
$130,000.
The second property was a residential home in Miami Beach that Martin and
her ex-husband purchased for $1,550,000 (the “Beach House”). They funded the
purchase with two mortgages from LoanCity, Inc., in the amounts of $1,085,000
and $465,000. LoanCity issued these mortgages as stated income loans, meaning it
did not verify Martin’s and her ex-husband’s incomes. Their mortgage application
contained false information about their monthly income and assets. Based on
Martin and her ex-husband’s misrepresentations, LoanCity approved the
mortgages. Martin and her ex-husband eventually defaulted on the loans, and the
Beach House was sold at a short sale for $710,000.
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Martin was indicted, along with several others, for her role in the fraud. She
was charged with (1) conspiracy to commit bank and wire fraud, (2) bank fraud,
and (3) wire fraud. A jury found her guilty on all counts.
B. The First Sentencing
At sentencing, the government sought imprisonment and a restitution award.
The pre-sentence report (“PSR”) stated that Bank of America was the victim for
the mortgages on the Miami Apartment because, according to the government,
Bank of America was a successor lender that had purchased the mortgages from
First Franklin. The government offered no evidence or testimony to support its
position that First Franklin had sold the mortgages for the Miami Apartment. The
district court nonetheless accepted the government’s assertion that Bank of
America had purchased these mortgages and found that Bank of America was the
victim, awarding it $358,781.12 in restitution. The district court arrived at this
amount by subtracting the short sale purchase price from the outstanding principal
due on the loans. The district court failed to consider whether Bank of America
had purchased the mortgages from First Franklin at a discount.
As for the Beach House mortgages, the PSR noted that the loans had passed
to two different successor lenders: the $1,085,000 mortgage had passed to
OneWest Bank FSB (“OneWest”), while the $465,000 mortgage had passed to
Saxon Mortgage Services, Inc. (“Saxon”). The PSR stated that Saxon no longer
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existed and there was no identifiable successor in interest, so the PSR included in
the restitution amount only the loss attributable to the loan owned by OneWest.
Though it was not clear from the PSR itself, evidence at trial showed that shortly
after LoanCity issued the mortgage, IndyMac Bank FSB (“IndyMac”) purchased
from LoanCity a pool of mortgages, including the $1,085,000 mortgage on the
Beach House. Evidence at trial suggested that IndyMac was acquired by OneWest.
At the sentencing hearing, Martin argued that the government had failed to prove
that OneWest owned the mortgage at the time of the short sale, but the district
court nonetheless found that OneWest was the victim.
The district court awarded OneWest $375,000 in restitution. The district
court calculated the restitution amount by taking $1,085,000—the amount of the
mortgage—and subtracting the proceeds from the Beach House’s short sale. The
district court used the entire amount of the mortgage because, although Martin and
her ex-husband made some payments on this mortgage, they never paid down any
of the principal. Martin and her ex-husband then defaulted on the mortgage, and
the Beach House was sold at a short sale. As with the mortgages on the Miami
Apartment, the district court failed to consider whether IndyMac had purchased the
Beach House mortgage from LoanCity at a discount.
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C. Martin’s First Appeal
Martin appealed her conviction and sentence. We affirmed Martin’s
conviction but vacated the restitution award. United States v. Martin (“Martin I”),
803 F.3d 581, 596 (11th Cir. 2015). We concluded that Bank of America and
OneWest were victims for purposes of restitution because they were “successor
lenders who subsequently purchased the fraudulently procured mortgages and
owned them when the properties were sold in short sales.” Id. at 592. Even
though we agreed with the district court that Bank of America and OneWest were
victims, we disagreed with how the district court calculated their restitution
awards. We directed that “a successor lender’s restitution award should turn on
how much it paid to acquire the mortgage” and that its restitution would “typically
equal the sum that lender paid to acquire the mortgage less the principal payments
it received and the amount it recouped in the short sale.” Id. at 595. We then
remanded because the government had failed to present “evidence regarding the
actual price the successor lenders paid for the mortgages” or “evidence to support a
conclusion that the outstanding principal balances were reasonable estimates of
what the successor lenders paid to acquire the fraudulently obtained loans.” Id. at
596.
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D. Post-Remand Proceedings
On remand, the district court held a hearing on restitution. At the hearing,
the government presented new evidence regarding the ownership of the Miami
Apartment and Beach House mortgages after they were issued by the original
lenders.
As to the mortgages on the Miami Apartment, the government changed its
position, arguing for the first time that First Franklin had never sold the mortgages
and continued to own them at the time of the short sale. The government
explained that “Bank of America never purchased th[ese] loan[s] individually.”
Doc. 244 at 11.2 Instead, according to the government, Bank of America
ultimately obtained these mortgages through its merger with Merrill Lynch, which
was the parent company of First Franklin at the time of the Miami Apartment’s
short sale. The government also noted that at the first sentencing the district court
gave Martin credit for the full $130,000 short sale price for the Miami Apartment.
The government argued that, in recalculating Bank of America’s restitution, the
district court should instead credit only $103,621.83, representing the proceeds that
First Franklin actually received from the short sale. The district court accepted the
government’s arguments and awarded Bank of America $392,434.68 in restitution.
2
All citations in the form “Doc #” refer to the district court docket entries.
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The government similarly changed its position regarding the $1,085,000
Beach House mortgage, arguing for the first time that the victim was not OneWest,
but the FDIC, as receiver for IndyMac. The government submitted as evidence the
FDIC’s victim impact statement, which noted that the FDIC had been appointed as
the receiver for IndyMac and claimed that “[t]he FDIC is the only party entitled to
restitution for losses suffered by the failed insured financial institution.” Doc. 228-
1 at 1. The district court accepted the government’s new argument and again
awarded $375,000 in restitution, but this time in favor of the FDIC rather than
OneWest.
Martin now challenges the district court’s conclusion that Bank of America
and the FDIC qualify as victims under the MVRA. 3 She also argues that the
district court improperly recalculated the restitution amounts owed to these entities
because, despite our instructions in Martin I, the government failed to show the
specific prices that Bank of America and IndyMac paid to purchase the mortgages
from the original lenders.
3
We note that the law of the case doctrine did not prevent the district court from
changing its findings regarding the identity of the victims of Martin’s fraud. “The law of the
case doctrine dictates that an appellate decision is binding in all subsequent proceedings in the
same case unless the presentation of new evidence or an intervening change in the controlling
law dictates a different result, or the appellate decision is clearly erroneous and, if implemented,
would work a manifest injustice.” Cox Enters., Inc. v. News-Journal Corp., 794 F.3d 1259, 1271
(11th Cir. 2015) (internal quotation marks omitted). Because the government presented new
evidence about the identities of the victims after remand, the district court was not bound by the
law of the case doctrine.
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II. STANDARDS OF REVIEW
We review whether an entity is a victim under the MVRA de novo. Martin
I, 803 F.3d at 593. We review factual findings underlying a restitution order for
clear error. United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007). A
factual finding is clearly erroneous when even though there is some evidence to
support the finding, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed. Id. We review the
amount of restitution ordered for an abuse of discretion. Id.III. DISCUSSION
A. The District Court Did Not Err in Concluding that Bank of America
and the FDIC Were Victims Under the MVRA.
The MVRA provides that when a district court sentences an individual
convicted of certain crimes, including those for which Martin was convicted, “the
court shall order . . . that the defendant make restitution to the victim of the
offense.” 18 U.S.C. § 3663A(a)(1). “To be considered a ‘victim’ under the
MVRA, an entity must have been ‘directly and proximately harmed as a result of
the commission of the defendant’s offense.’” Martin I, 803 F.3d at 593 (alteration
adopted) (quoting 18 U.S.C. § 3663A(a)(2)). In other words, “a victim must have
suffered harm, and the defendant must have proximately caused that harm.” Id.
The government bears the burden of proving by a preponderance of the evidence
that a particular entity was a victim of the defendant’s offense. Id. The first issue
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we must resolve in this appeal is whether the district court erred in concluding that
Bank of America and the FDIC were victims under the MVRA.
1. The District Court Did Not Err in Concluding that Bank of America
Was a Victim as the Successor in Interest to First Franklin.
During Martin’s initial sentencing, the government’s position was that Bank
of America was the victim of Martin’s fraud because it had purchased the Miami
Apartment mortgages from First Franklin and was therefore a successor lender.
After we remanded in Martin I, however, the government adopted a new theory. It
argued that Bank of America was the victim because First Franklin owned the
Miami Apartment mortgages at the time of the short sale and incurred a loss as a
result of the short sale, and Bank of America became the successor in interest to
that loss when it acquired Merrill Lynch, First Franklin’s parent company.
Martin does not dispute that Bank of America acquired First Franklin when
it purchased Merrill Lynch. Instead, she argues that the government failed to show
that First Franklin suffered a loss to which Bank of America could have become
the successor in interest. According to Martin, the government failed to show that
First Franklin suffered a loss at all because it offered insufficient proof that First
Franklin continued to own the Miami Apartment mortgages at the time of the short
sale. 4 The district court rejected this argument. Implicit in its entry of a restitution
4
In addition to arguing that the government offered insufficient proof, Martin also relies
on the trial testimony of Gelcys Falcon, a former underwriter for First Franklin, who testified
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award in favor of Bank of America was a finding that First Franklin never sold the
mortgages and continued to own them when the property was sold at the short sale.
Had the district court not implicitly made this finding, there would have been no
basis for concluding that Bank of America was a victim because it would have had
no loss to inherit from First Franklin.
During the restitution hearing, the government attempted to prove that First
Franklin continued to own the Miami Apartment mortgages at the time of the short
sale by offering the testimony of Mary Davids, a mortgage resolution associate for
Bank of America. Some of Davids’s testimony was imprecise and suggested that
she lacked direct knowledge of whether First Franklin sold the mortgages. For
example, when Davids was initially asked if First Franklin ever sold the
mortgages, she answered “[n]ot to my knowledge, no.” Doc. 244 at 39. But then
when she was asked during cross examination if she knew whether First Franklin
sold the Miami Apartment mortgages as part of an asset-backed security, she
answered, “I don’t know.” Id. at 45. Davids’s testimony also was equivocal
regarding Bank of America’s role with respect to the mortgages. When Martin’s
counsel asked Davids if she knew whether Bank of America owned the mortgages
that First Franklin issued subprime loans that were then packaged and sold to private investors.
But Falcon provided only general testimony about First Franklin’s subprime loan practices. She
did not know whether First Franklin sold all of its loans, nor did she testify more specifically
about whether First Franklin sold the Miami Apartment mortgages. Thus, Falcon’s trial
testimony fails to show that First Franklin sold the Miami Apartment mortgages before the short
sale occurred.
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or merely serviced them, she answered only that she knew Bank of America was
the servicer. And when Martin’s counsel asked Davids whether she could testify
that Bank of America actually owned the mortgages, she responded that she
“didn’t review that information.” Id. at 46.
Even if Davids’s testimony failed to provide direct evidence that First
Franklin never sold the mortgages, however, it was at least sufficient for the
district court to draw that inference. First, Davids clarified late in her testimony, in
response to questioning by Martin’s counsel, that her review would have revealed
if First Franklin sold the mortgages before the short sale:
Q. [D]id you review all the records necessary for you to say one
way or the other whether or not First Franklin or anyone else re-sold
this loan as part of an asset-backed security?
A. Yes, I would be able to determine that based on my review,
because based on my servicing records, it reflects all the history of the
loan, which is why I’m able to review and produce the short-sale
documents . . . .
Id. at 48. From the fact that Davids’s records included the short sale documents,
the district court reasonably could have inferred that First Franklin never sold the
mortgages. Second, Davids testified that First Franklin received the proceeds from
the Miami Apartment’s short sale, which suggested that First Franklin was either
the owner or the servicer of those mortgages when the short sale occurred. Given
Davids’s repeated testimony that Home Loan Services—another entity acquired by
Bank of America—serviced the Miami Apartment mortgages, the district court
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reasonably could have inferred that First Franklin must have been the owner rather
than the servicer of the mortgages. Because Davids’s testimony was sufficient to
support these inferences, we cannot conclude that the district court clearly erred in
finding that First Franklin continued to own the Miami Apartment mortgages when
the short sale occurred.
We reiterate that Martin challenges only whether First Franklin suffered a
loss in the first place. She does not dispute that Bank of America acquired First
Franklin via its merger with Merrill Lynch, nor does she dispute that an acquiring
corporation inherits the losses of its target corporation, making the successor a
victim for purposes of restitution. Because Martin raises no argument that
successors in interest are not entitled to restitution owed to their predecessors, we
assume, without deciding, that they may indeed recover their predecessors’ losses
through restitution. We therefore affirm the district court’s conclusion that Bank
of America was entitled to restitution under the MVRA as a victim of Martin’s
fraud.
2. The District Court Did Not Err in Concluding that the FDIC Was a
Victim as the Receiver for IndyMac.
Martin also contends that the FDIC was not a victim of her fraud because it
was merely appointed as the receiver for IndyMac upon the bank’s failure. In
Martin’s view, a receiver cannot count as a victim because a receiver is obligated
to distribute any money recovered from a restitution award to the failed
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institution’s former depositors, creditors, and shareholders. In other words,
according to Martin, a receiver is simply a pass-through entity, while the failed
institution is the true victim.
We disagree. When the FDIC acts as a receiver for a failed bank “it steps
into the shoes of the failed institution and takes possession of both the assets and
the liabilities.” Vernon v. FDIC, 981 F.2d 1230, 1234 (11th Cir. 1993). If
IndyMac had not failed and had been awarded restitution payments from Martin, it
could have used the proceeds of those payments to fund the bank’s deposits, pay
off its bills, or return capital to its shareholders. The FDIC assumed these same
rights and responsibilities when it was appointed as receiver. See 12 U.S.C.
§ 1821(d)(2)(A)(i) (providing that as a receiver the FDIC succeeds to “all rights,
titles, powers, and privileges of the insured depository institution”). Because the
FDIC stepped into IndyMac’s shoes upon the bank’s failure, the district court did
not err in concluding that the FDIC was the victim of the loss on the Beach House
mortgage.
B. The District Court Did Not Abuse its Discretion in Calculating the
Amounts of the Restitution Awards.
Martin contends that, even if Bank of America and the FDIC were indeed
victims under the MVRA, the district court abused its discretion in calculating the
amount of restitution owed to each of these entities. We will address each of the
district court’s calculations in turn.
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1. The District Court Did Not Abuse Its Discretion in Calculating Bank
of America’s Restitution Award.
Martin first challenges the district court’s calculation of Bank of America’s
restitution award. She argues that the district court failed to adhere to our
instructions in Martin I because it failed to account for the amount that Bank of
America paid First Franklin in exchange for the Miami Apartment mortgages.
Martin notes that the district court calculated Bank of America’s restitution based
solely on the outstanding principal due on the Miami Apartment, just as it had done
during the first sentencing hearing.
Martin’s argument fails because, despite the position taken by the
government during the first sentencing hearing, the evidence at the second hearing
showed that Bank of America never purchased the Miami Apartment mortgages
from First Franklin. On remand, the government changed its theory and instead
showed that Bank of America was a victim because it inherited the loss suffered by
First Franklin when it acquired Merrill Lynch, which was First Franklin’s parent
company. If Bank of America had purchased the Miami Apartment loans from
First Franklin on the secondary market, then the district court would have had to
consider how much Bank of America paid First Franklin for the loans. See Martin
I, 803 F.3d at 595 (“[A] successor lender’s restitution award should turn on how
much it paid to acquire the mortgage.”). But our decision in Martin I was silent
regarding the proof of loss necessary when the fraudulently procured loan is
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acquired through a corporate merger rather than on the secondary market. Martin
argues that the government’s evidence was insufficient because it offered “no
record testimony about the financial details surrounding the merger[]” of Merrill
Lynch into Bank of America. Appellant’s Br. at 16. Given the complexities of
such a merger and its size relative to the mortgages at issue, however, we cannot
conclude that the government was required to show the specific role the Miami
Apartment mortgages played in the merger. See United States v. Ritchie, 858 F.3d
201, 217 (4th Cir. 2017) (holding that when the victim is the successor in interest
to the loss rather than a successor lender, restitution should be based on the
victim’s “total, actual loss,” irrespective of the “specifics” of the victim’s
acquisition of the original lender).
In sum, the district court did not abuse its discretion in relying solely on the
outstanding balance of the Miami Apartment mortgages in calculating Bank of
America’s restitution award. That is not to say, however, that we necessarily
would have reached the same conclusion as the district court if we were reviewing
the district court’s decision de novo, or that the type of evidence presented by the
government in this case would be sufficient to prove a victim’s loss in other cases
where the original lender is acquired by a different corporate entity. 5
5
We note that the district court appears to have made a small error in arithmetic when
calculating Bank of America’s restitution award. According to Davids’s testimony, the unpaid
principal balances for the Miami Apartment mortgages were $396,492.78 and $99,536.73, for a
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2. The District Court Did Not Abuse Its Discretion in Calculating the
FDIC’s Restitution Award.
Martin next challenges the $375,000 restitution award in favor of the FDIC.
She argues that the district court erred in calculating the award because it
subtracted the Beach House’s short sale purchase price from the amount of
principal owed on the mortgage. She relies on Martin I to argue that a proper
calculation would have involved the difference between the short sale purchase
price and the amount that IndyMac paid to purchase the mortgage from LoanCity.
She contends that because the government failed to offer any evidence as to the
amount that IndyMac paid to purchase the mortgage, the district court should have
declined to award any restitution to the FDIC at all.
True, in Martin I we counseled that a court generally should calculate
restitution in a mortgage fraud case by using the amount the successor lender paid
to acquire the mortgage. Martin I, 803 F.3d at 595. But we also explained that
when a loan is bundled into a security, it may be difficult to identify with any
precision the proceeds that the lender received for a specific mortgage. Id. at 596.
We acknowledged that a district court may at times award restitution without
evidence about the loan’s actual purchase price because, in some cases, a
total of $496,029.51. The amounts recovered as a result of the short sale were $93,621.83 on the
first mortgage and $10,000 on the second mortgage, for a total recovery of $103,621.83.
Subtracting the total amount recovered at the short sale from the total of the unpaid principal
balances yields a difference of $392,407.68. The district court instead awarded $392,434.68.
We remand for the district court to correct this $27 discrepancy.
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“reasonable estimate of the loan’s purchase price . . . may very well be the
outstanding principal balance.” Id. (internal quotation marks omitted).
This is such a case. Here, IndyMac purchased the Beach House mortgage
from LoanCity as part of a bulk acquisition of loans. The underwriting process for
this bulk purchase began roughly two weeks after LoanCity closed on the Beach
House mortgage. IndyMac took possession of that mortgage a mere three months
later. The close temporal proximity between LoanCity’s closing on the Beach
House mortgage and IndyMac’s acquisition of that mortgage suggests that the
mortgage was not part of a package of distressed loans, making it likely that the
loan was sold for something close to face value. This, in turn, means that the
outstanding balance of the Beach House mortgage was a “reasonable estimate” of
the amount that IndyMac paid to purchase it. Even though the government
probably could have presented evidence that more precisely estimated the price at
which IndyMac purchased the Beach House mortgage, we are mindful of the
standard of review that we must apply here. Given the timing of the sale to
IndyMac, we cannot say that the district court abused its discretion in calculating
the FDIC’s restitution award based on the outstanding balance of the Beach House
mortgage.
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IV. CONCLUSION
For the foregoing reasons, we affirm the district court but remand for the
limited purpose of amending Bank of America’s restitution award so that it
correctly totals $392,407.68.
AFFIRMED IN PART and REMANDED IN PART.
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