James, having worked long hours, seven days a week, had challenged himself in real estate to increasingly higher levels until reaching the ultimate project. He planned to crown his life's work by developing three business properties he had paid off, managing them and eventually selling them off to educate his children and retire comfortably.
When he started on his first project, he had impeccable credit, business clout, community respect and a net worth of three million dollars. The project consisted of small buildings, as opposed to a large one, with variations in roof line to draw attention. To generate immediate revenue, he planned a sports bar and restaurant as centerpiece. Versed in aesthetic design, he had laid out the rest in response to community needs, which he had thoroughly researched.
What surpasses an honest entrepreneur, putting his money where his heart lay and filling community needs?
Backing his project with a personal guarantee, James assured those dealing with him of a risk-free relationship, expecting his partners to respond in kind. He obtained expert legal advice, architectural plans and a loan, which carried one stipulation. The federally-regulated bank required James to obtain its approval for the chosen contractor. Small matter, he thought, as excitement became his watchword.
Keeping his end of the agreement, he chose a contractor acceptable to the bank, which, he expected, would watch over mutual interests. But once the project got underway, strong head winds blew in. The contractor refused to follow code, behaved as if beholden to the bank, not James, and then embezzled $400,000 by defaulting on its debtor obligations. Ever a man of his word, James, rapidly discerning irregularities, made formal, respectful demand of his partner, the bank, to cooperate in replacing the contractor.
The bank outdid itself, holding a meeting with the contractor behind closed doors. Then, inexplicably, the bank issued the builder a $100,000 check out of James' loan. James thought to himself, "Strange, and at cross-purposes to his agreement with the bank."
Always a step ahead, James wasted no time adding a second contractor. By completing the suites, he could replace the construction loan with a permanent loan. That way, he could jettison the unhelpful bank while complying 100% with his part of the contract. Suites complete, he got his first tenant, a medically-oriented, health spa. He had tackled this quagmire and overcome it or so he thought.
But somewhere on the way to the bank, another impasse developed. The bank refused to approve his tenant, while crushing interest payments of $17,000 a month became due. The uncooperative bank was becoming a hostile bank, a fact he could not fathom. Like the line separating BC in this case, Before Court, from AD, After court Decision he danced across the threshold of justice. Another challenge, he thought, but he asked himself rhetorically: hadn't he been overcoming petty problems his entire business career?
Doing all the things the Bar advises, he retained an attorney, who immediately recommended filing for Chapter 11 reorganization. Though hardly bankrupt, he wouldn't think of questioning his attorney, a member in good standing of the Bar.
The relentless optimist, he knew his case was solid. He envisioned exposing the bank's bad faith in refusing to approve the tenant. With the spa in place, he could also show the court that transfer from construction lender to permanent lender could easily be made, satisfying all parties and paying off the $1,450,000 loan.
Relying on a standard of conduct consistent with the Bar's Canons and Code of Professional Responsibility, he followed his counsel's advice, in hindsight somewhat blindly. Throwing himself into the coming arrangement, he filed a thorough reorganization plan, adding a safety valve of selling off one piece of property as a buffer to satisfy unforeseen monetary demands.
James had confidence in his business acumen but, unbeknown to him on the high ground he occupied, he was outside his league. Here, morals, ethics, law and rules were immaterial. He needed a thorough understanding of jungle rules. Like so many of us, he naively treated others with the same honor he expected in return. The court, unencumbered with his mindset and the concentration necessary to read his well-designed plan, refused his reorganization. That set off a chain reaction.
The bank foreclosed, dividing the building and other assets. It kept half, and gave the contractor half. James was bewildered; this wasn't going like anything he had experienced in a lifetime of legitimate business. Why was the contractor being rewarded for messing up the project? Lest he become paranoid, he reminded himself that he was in a system that affords each person equal justice under the law, and he was dealing with knowledgeable professionals regulated by a stringent ethical code. Now at peace mentally, how could he go wrong?
But discharge of bankruptcy didn't end his tie with the court. The bank protested, claiming James still owed it $750,000. The lawyers were only too happy to draw up the paper work and haul him back before the court, their stock in trade. James, this time the wiser, got three appraisals at certified industry standards of his building and property, each of which set the value at between two and three million dollars.
These evaluations proved two things: 1) As an entrepreneur, James was on the money with his investment, a financial success before opening for business, and 2) He had, in fact, paid the bank more than a million dollars in excess of his obligation. Despite all setbacks, he was still holding his own. But like Phyllis Good in Chapter 1 [of my book], who argued an equally worthy cause, this court dispensed with not dispensed justice.
What cushy court wanted to bother with a valuation hearing anyway merely more work, papers to read, arguments to hear, decisions to make? Unlike lawyers, the judge wasn't on the clock, and who knows what other motivations he may have had? The judge summarily denied James' request, showing him how easily money comes and goes in bankruptcy. Machinations now beyond his control, James started speculating on how many more losses he could absorb before his pet project would be gobbled up.
New developments trapped him further: The contractor's insurer owed the bank $865,000 because of shoddy construction that resulted in license revocation. An unwitting link in the chain until the bank was satisfied (in legalese, "indispensable party"), James could not escape. By this time, he assumed that the bank, contractor and insurer were all adverse parties to one another. Wrong again.
The matter was set for jury trial. But a strange thing happened on the way to the bank: A witness who had come forward after overhearing a conversation in which contractor and bank conspired to steal James' assets met an unfortunate end. Days before the trial, he was murdered.
The witness' untimely death foreclosed entry of evidence about the alleged conspiracy. As matters heated up well before the trial, James was overcome with panic. Each time he reacted responsibly, his position grew worse. "What kind of court was this anyway," he wondered?
Unlocking the judge's enormous power, contractor's counsel moved by motion to exclude unfavorable evidence. Counsel argued that relevance of evidence James planned to present was vitiated by prejudice to his client's case. The judge cut James' legs out from under him.
By trial time, the case no longer resembled reality. The jury could not be told that the contractor now owned the building and sports bar. The jurors could not know that the very same sports bar that the bank had rejected in James' hands was approved in the contractor's. They could not be made privy to the fact the contractor's license had been revoked on account of building an unsafe structure without proper permits and inspections.
Opposing James, side by side with the contractor, was the insurance company, which had brought a bevy of experts from Maryland. This legal machine faced off with the skeleton representation James was able to afford. As so often happens in our adversarial form of justice, defense attorneys slandered, abused, criticized, and harassed James. Not to mention his friends, virtually every one of whom, even the Methodist Minister who married him, had been deposed.
Within 60 days, his hair turned from dark brown to completely gray. His blood pressure shot up to a point where he needed medication and still does.
Records subpoenaed from the bank proved its motive was to force him out of business. Evidence revealed the bank's corporate officers owned a competitive spa slated for construction less than one thousand feet away undoubtedly clued to these profitable possibilities through its confidential communications with him.
Here was evidence supporting charges of fraud, forgery, perjury and theft surely exciting stuff in any venue, but the judge was nonplussed. Yawning, he refused to rule, saying informally: "I have problems with that judgment." With the yawn of no decision, James' recourse to appeal was doomed, because a nonexistent order cannot be appealed. The judge knew this, of course, giving rise to the question, whom could James trust?
If he couldn't trust the bank, the contractor, the contractor's insurer, the court, he was reluctant to raise the heresy: could he trust his own lawyer? Playing mental ping-pong, he questioned his reliance on the lawyer he had hired, who, the Code of Professional Responsibility told him, would be a zealous advocate, never, ever compromising him upon pain of disbarment. But, he wondered, could he rely on the Bar? In a quandary, he didn't know what to think or who to believe.
His first attorney. You know, the one who had initiated bankruptcy in the first place when his company was still quite solvent. He enjoys an ending worthy of Hollywood, where the hero rides off with the beautiful woman, living happily ever after. The good news is, this lawyer joined in full partnership with the contractor's counsel.
What could be finer than two of a kind practicing together, giving the public their dose of justice? In hindsight, was the Chapter 11 process a set up? "If it smells like a fish, it must be," James was beginning to realize.
He lost everything. A decade in court on top of twenty successful years building his estate had decimated him. When he had first filed for Chapter 11, he had $5,000,000 in assets and $2,000,000 in liabilities. The system had drained his assets dry as his properties were sold off at bargain prices to the contractor and "friends" of the bank.
By this time, James had moved from hope and confidence to anger, rage, outrage, then beyond outrage. His experience with the judiciary had wholly transformed him as a human being.
When James' period of BC (Before Court) turned to AD (After Decision), he lost his fine sense of humor, spending each night on the sofa before the TV nursing a friendly drink, his mood growing defensive and ugly, his view of life cynical. His wife describes the transformed James as resembling someone struck on the head by a wrecking ball. This was his point of implosion.
Copyright 1996, Bob Sherin