The old legal maxim proceeds, ignorantia juris non excusat or, "ignorance of the law, is no excuse!" This ancient truism, thought to have its origins in Roman law, was eventually folded into the American legal system through the early English colonialists. The maxim reflected a common reality that much of law, particularly criminal law, was understood to be based on the natural and eventually, Canon law. A knowledge of such laws was thought to be held generally by all in common, the law written on the heart, so they have no excuse, as St. Paul refers to it.[1] However, much of that common traditional understanding, and particularly the natural law, has been jettisoned by modernity. To fill the void for our pluralistic and disjointed world, we have adopted a sterile, strict, and exclusive form of legal positivism. Reams and reams of state and federal statutes, municipal codes, administrative decisions, executive decisions–and yet the maxim, ignorantia juris non excusat, lurks in the shadowy background like a phantom from the past. Congress, state legislatures, and even hoards of bureaucrats all tinker with or develop laws and rules that are potentially enforceable against people who have presumed knowledge of the law, as well as its interpretation through case law.
Such a conundrum poses a truly interesting question about the reasonableness, indeed fairness, of holding on to the classic maxim in our modern world. However interesting that academic question may be, in reality the situation becomes terrifying quickly when the state bears its full weight of resources and monopoly on power down on you for violating one of these laws. Such is the hand that a one Lawrence Skrobot has been dealt. He, along with eighteen others, was recently indicted by a federal grand jury for various counts of mortgage-related fraud. This article will examine the indictment and the case that the FBI claims it has against these defendants.
On February 8, 2008 the Federal Bureau of Investigation (FBI) announced that it had "unveiled" a massive mortgage fraud scheme in the Chicagoland area.[2] The FBI announced three separate indictments, but this article will focus mainly on the third indictment, which is the particular indictment involving Mr. Skrobot, et al. Despite being labeled as "one of the largest mortgage fraud schemes ever prosecuted in [the Chicago] district", there has been scant reporting of this story in the local and national press.[3] Some of the reporting thus far, however, has mistakenly lumped all three indictments together under the moniker, "the Skrobot indictment", which infers Mr. Skrobot is allegedly involved in illegal gang activity and money laundering schemes found in the first indictment. However, a reading of the third indictment, which is the only indictment in which Mr. Skrobot is named, breeds a more accurate depiction.
The FBI filed the 22-count indictment against Mr. Skrobot along with eighteen others on February 5, 2008 at the United States District Court for the Northern District of Illinois located in Chicago.[4] Mr. Skrobot himself is facing eighteen counts in violation of four federal laws.[5] The other eighteen individuals named on the indictment include, "loan officers and processors, a Certified Public Accountant, a licensed real estate agent, a tax practitioner, a property manager, numerous property developers, and several property buyers."[6] They are accused of "devising and operating a scheme to defraud numerous lending institutions by means of false and fraudulent mortgage applications."[7]
Mr. Skrobot is the alleged "ring leader" of this scheme whereby, through his land trust, he would purchase blighted properties in the Chicagoland area.[8] With these properties in hand, Mr. Skrobot along with others named on the indictment, would in turn recruit so-called "straw buyers" to purchase the properties.[9] These buyers, allegedly, were unqualified for financing to purchase the properties, so Mr. Skrobot allegedly directed them to specific loan officers for favorable treatment.[10] Several of these loan officers, Varena McCloud and Joseph Miller, as well as others, are named in the indictment.[11] They are charged with aiding these straw buyers to obtain mortgages by using forged or false W-2 employment statements, false rental histories, and inaccurate statements describing the buyers' assets and income.[12]
The indictment further alleges that it was part of this master "scheme" led by Mr. Skrobot to issue second mortgages for the buyers to go towards the properties on the guise of being later repaid, "when in fact [defendants] and the buyers had an agreement that neither the seller second mortgage or note would be repaid in any part."[13] Moreover, it is alleged that Mr. Skrobot provided the buyers with down payment and earnest money checks that listed the buyers as the remitters.[14] Rather, the buyers were not remitters and had not contributed any money toward a down payment or earnest money and caused these false down payment and earnest money checks to be presented at closings to deceive lenders by creating the false impression that the buyers had made down payments and had paid earnest money."[15]
The culmination of this "scheme", allegedly masterminded by the ever-deft Mr. Skrobot, is that he along with other named defendants "received the proceeds of mortgage loans that lenders issued to buyers of the [properties]…and used these loan proceeds to enrich themselves and to keep the scheme going by using the funds to buy and sell more property."[16] When the real estate market declined over the past year, and borrowers did not repay the mortgage loans or simply abandoned the properties, the lenders were faced with losses totaling more than $7 million.[17] Some of these lenders included some of the nation's largest commercial banks, such as a mortgage lending division of Washington Mutual as well as BNC Mortgage, a wholly-owned subsidiary of Lehman Brothers.[18] Additionally, there are various counts of wire and mail fraud alleged against Mr. Skrobot and various other named defendants that involved the transfer of monies related to the property financing "scheme."
There is a possible alternative perspective behind this third indictment and its accusations. Since around August of last year, certain financing institutions, and most particularly the big commercial and investment banks, have been struggling due to the subprime mortgage fallout. Nearly every one of these banks has posted enormous losses and announced impending writedowns. As a result, and since so many other institutions and groups had exposure to the subprime risk, there are serious fears of an economic recession. But before too many tears are shed and empty exhortations are exclaimed by self-interested politicians concerning the fault of the credit crunch, it would only be proper to scrutinize the big banks' role and shedding of responsibility for the mess.
Formerly, if a bank was to extend credit to an individual, it either needed to have significant collateral from the borrower or be assured by his or her stellar reputation and credit worthiness. In times much older than the present, a person could be subtly coerced into being honest and up front with the bank (and others in society) out of fear that a potential scandal would ruin his reputation before the public. Thus, there was a sense of public virtue and commonly held mores. Likewise, the bank had an incentive to know its customers and in many cases (think: It's a Wonderful Life) did take risks and actions based on its personal first-hand knowledge of its customers. Such a simple idyllic life is now, alas, virtually past; however, banks continued to exercise due diligence when extending credit to individuals or institutions out of self-protection.
Enter the main villain, in the form of Wall Street and big New York banks. Like the situation that befell Eve in the Garden, this serpent offered a tantalizing temptation: "you have such potential but you are being denied this glory and wealth; why limit yourself to such woefully low margins when we can help you realize your true profitable potential with minimal risk exposure?" Thus unveiled the proposition for small banks and mortgage financing institutions to sell their mortgage loan debt to Wall Street, which would in turn securitize the loan portfolios into equities to be sold on the international markets. Considering human behavior, this provided a subtle incentive for lenders to make as many loans as possible. Likewise, the lenders had little incentive to uphold their due diligence lending standards. After all, the loans were being immediately sold and re-packaged to investment banks; why bother about reputation when third parties claim to take on all the risk? Thus, the match made in Heaven between the little-lenders-that-could and Wall Street strolled blissfully down the path of moral hazard, which is where we find ourselves picking up the pieces today.
Consider again those nineteen people named on the third indictment and imagine them operating in the marketplace scenario described above. An alternative explanation may be plausible. What if, for instance, the supposed "ring leader", Mr. Skrobot, is a humble generous man who simply wanted to perform works of mercy for those less fortunate? For instance, many of the buyers listed on the indictment were no-asset lower income earners who formerly lived in rental properties. What if, for example, one of these buyers rented for $800/month, and if he wanted to buy the same property, it would cost him $1000/month in mortgage payments. That is a small difference considering the benefits that come with achieving the "American dream" of homeownership.
The crux of the matter may have been though that many of these buyers would meet difficulty qualifying for the mortgage loan because they have insufficient or irregular income and insubstantial assets available for collateral. Suppose Mr. Skrobot or one of the defendants were to make these buyers a gift to cover the earnest money in order to help him qualify. In the past, lenders wanted to see a non-resource non-seasoned deposit to hold until closing. That is, the lenders wanted to see that the source of the funds was from the buyer himself and that the funds were available for a set period of time. This procedure was another way of measuring and insuring the buyer's reputation. However, over the past several years, lenders had incentives to take more risk, so such standards for potential borrowers diminished. Ordinarily, Mr. Skrobot or one of the other defendants, would need to tell the lender that the buyer received the money as a gift. However, if lenders did not care as to the source or season of the money, is it just for the FBI to now charge the defendants with mortgage fraud when the lenders did not care to begin with?
As to the alleged false documents, it is unknown whether the defendants actively engaged in their misrepresentation or the buyers simply acted with indiscretion to lenders who were more than willing to accommodate them. The larger point of this indictment and alleged "scheme" is that it is possible to be prosecuted by the state for doing works of charity to those less fortunate. This is possible first, because the American legal system retains ignorantia juris non excusat as an enforceable maxim. Thus, many of the defendants may have acted out of charity unaware that the standards of mortgage fraud had changed. Typically, one would think mortgage fraud would constitute an intentional straight forward act to directly deceive the lender, such as claiming improvements were made on the property when in fact they were not.
Second, the indictment illustrates the price middle America may have to pay to bail out and take the heat for Wall Street's risk-taking. Millions of Americans are already bailing out the big banks through high inflation, at the behest of the Federal Reserve's inflationary policies, which are aimed at, "help[ing] struggling banks and mortgage providers." Perhaps a similar situation is occurring here with this indictment: instead of lenders taking responsibility for excess risk and poor standards, it should be little guys, like Mr. Skrobot, who should take the forty lashes less one. Unfortunately, we may never learn the true details of the legitimacy of this alleged "scheme." Because the federal government has an abundance of resources and a monopoly on power, Mr. Skrobot and the other defendants may be forced to accept a plea agreement, despite being potentially innocent from any wrongdoing. Such may be the consequences we endure in our modern world to achieve order: a dominant total state with an abundance of laws most of which its citizens are expected to have a natural knowledge of. However, such a compromise provides little comfort for the possibly innocent among those named on the third indictment.
[1] Epistle of St. Paul to the Romans 2:15.
[2] Press Release, Chicago FBI Press Office, Charges Unveiled in Massive Mortgage Fraud Scheme (Feb. 8, 2008) (on file with author) available at http://chicago.fbi.gov/pressrel/2008/feb08_08.htm.
[3] Id.
[4] Indictment of Lawrence Skrobot, United States v. Lawrence J. Skrobot, No. 08CR-0107 (N.D.IL Feb. 5, 2008) available at http://www.mortgagefraudblog.com/images/uploads/ILSkrobotIndictment.pdf.
[5] Id.; See 18 U.S.C. § 1343 (2000); 18 U.S.C. § 1957 (2000); 18 U.S.C. § 1341 (2000); 18 U.S.C. § 2 (2000).
[6] Press Release, supra note 2.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Indictment of Lawrence Skrobot, supra note 4.
[12] Press Release, supra note 2.
[13] Indictment of Lawrence Skrobot, supra note 4, at 5.
[14] Id. at 6.
[15] Id.
[16] Id. at 7.
[17] Id.
[18] Id. at 2.
[19] Joe Bel Bruno, Stocks Rise on Fed Lifeline to Wall Street, YAHOO! NEWS, March 11, 2008, http://news.yahoo.com/s/ap/20080311/ap_on_bi_st_ma_re/wall_street.