The rider bars James from entering into “a timesharing or any other shared ownership arrangement or agreement that requires her either to rent the property or give any other person any control over the occupancy or use of the property”—just as the indictment explains it does. But prosecutors don’t even bother to allege she ever entered into such an arrangement. All they allege is that she rented out the property, and that she didn’t personally use it.In civil law (non-criminal), the burden of proof is a preponderance of the evidence. That’s much lower than the “beyond a reasonable doubt” standard of criminal law.
That behavior, the rider doesn’t prohibit. On the contrary, it explicitly allows short-term renting during the first year according to certain conditions. One of those conditions does concern occupancy: The home must be “available primarily as a residence for [her] personal use”—but only available. James need not actually have used it. After the first year, renting is even fairer game. Regulators deliberately rewrote the standard rider in 2019 to make renting easier for second-home owners.
Exactly how James used, or didn’t use, the property remains to be seen. The evidence so far appears almost laughably flimsy: The Schedule E forms the indictment references aren’t publicly available, but James provided Antar’s trawled up financial disclosures to the state of New York, and she only notes having received rental income from the Norfolk property in one year, 2020. The amount? $1,000 to $5,000. The indictment’s otherwise odd wording around the “thousand(s) of dollars in rents received” that James recorded on her taxes suggests the amount indicated therein is similar or the same—and consistent with a short-term rental.
Even proving that James made a false statement to a bank seems like a tall task, given it’s unclear she violated the guidelines for second homes. Proving that she intended to deceive the bank—that she had a firm belief those squishy rules forbade her behavior, and so concealed her intentions from her lender—is a more difficult endeavor still.
One thing I always looked for in a civil suit was any opportunity to argue that, even accepting all the claims as true, the case fails and should be dismissed. That’s a fairly high bar, and courts are generally reluctant to let you clear it. So you only did when you were sure you should succeed (not “could.” That’s always up to the court.).
Again, in civil suits, the original petition (in Texas court) , or the complaint (in federal court), should state the causes of action (legal reasons for the suit), and the grounds. You can’t add new charges or grounds without permission, although you don’t have to reveal all your evidence in the pleadings. Criminal complaints run along the same lines. Bottom line: you can’t get to trial and say: “Psyche! We changed all the charges!”
The government has charged fraud. They have to prove James intended to defraud the lender. They have to do that without her help (they can’t make her testify). That’s a very heavy lift, since they can only show she rented the place out, for a while; and she got a favorable loan.
And this is in the EDVA. Again. “Rocket docket.” Once again importing AUSA’s to stand before a judge and plead “Can we do this in a year?” And if Halligan is DQ’ed? Who’s gonna put their law license, or at least their EDVA license, in the line to bring a new indictment?
What a fucking cock up.
(Oh, lawyers usually translate the Latin as: “The law does not concern itself with trifling matters.” That might actually be a good jury argument, if this ever gets that far. Juries don’t really like having their time wasted.)
Whenever a fellow called Rex
ReplyDeleteFlashed his very small organ of sex,
He always got off,
For the judges would scoff,
“De minimus non curat lex.”
And here I thought I was educated. But that’s a new one on me.
ReplyDeleteI can't promise not to steal that, too.
ReplyDelete