Foreclosure: A Novel (18 page)

“And did there come a time when your prior law firm solicited work from you at Meridian Bank of Miami?”

“Yes. It didn’t take long after I left before I was contacted by Mackenzie Alderman.”

“As in Hollis & Alderman?”

Justin nodded. “That’s right. She’s related to one of the firm’s founders somehow. She wanted to talk about the prospect of Hollis & Alderman working for my new employer.”

“And what was the result of those talks?” Chaska asked, ever in charge.

“A few lawyers came down and made a pitch. I explained that we had loans going in default in Gaspar County and we needed counsel to help us.”

“Was David Friedman one of those lawyers?”

“I’d say he was the main lawyer pitched to us.”

“What did you discuss with Mr. Friedman?”

“I discussed our specific needs with him. I knew David quite well.”

“How did you know him?”

Justin made a point to meet the judge’s eyes quickly. “Jeez, we worked together for seven years. Probably got a beer every other week. He was a bit of a loner, so he’d always come to me for the inside scoop at the firm.” Justin smiled proudly.

Chaska glanced at the judge too, no doubt to make sure she was following along. “And after you left Hollis & Alderman, you had discussions with Mr. Friedman concerning his working for the bank as counsel?”

“More than that, we discussed his appearing in a number of cases for the bank.”

David knew Justin sounded credible. He’d have his work cut out for him during cross.

“Now just to be clear, Mr. Baxter. Did you ever discuss representation for this specific loan? For this specific borrower?” Chaska asked the questions with perfect inflection.

“Did I name the borrower by name? No, I did not. But I explained to Mr. Friedman the nature of our loans in this portfolio, the nature of the defaults, and how we intended to proceed.”

Chaska stared at his lectern and paused. Then he looked up at Justin, timing it for perfect dramatic effect. “Did you share any confidential information with him?”

“I certainly did. I would not have discussed anything that I told him if he hadn’t indicated he was interested in representing the bank.”

“Did you believe he was your attorney?”

“For purposes of what I told him, I sure did,” Justin said.

Chaska nearly bowed to the judge. “No further questions.”

Judge Leblanc peered over the bench. “Do you have questions, Mr. Friedman?”

“Yes, thank you, Judge,” David said as he stood to start his cross. Chaska threw him a quick smirk as he retreated to his table.

“Mr. Baxter.” David paused. Here went nothing: “You are currently living with my former girlfriend, correct?”

Justin looked to Chaska for guidance, but his attorney was already standing to object.

“Relevance,” Chaska shouted. “Judge, this is scandalous.”

The judge turned to David. “What on earth is the relevance of that question, Mr. Friedman?”

“It’s simple, Your Honor. The day I met in private with Mr. Baxter, the main topic of our meeting wasn’t about legal stuff—it was the fact that he was living with my former girlfriend. I expressed no interest in representing him or Meridian Bank. Now if you’ll give me a little leeway, I can show that this is relevant to whether Mr. Baxter believed that I was his attorney.”

The judge peered at David through the red frames of her glasses. “I’m going to give you a little room here, but don’t push it.”

“Thank you.” David returned his attention to the witness stand. “Mr. Baxter. You are currently living with my former girlfriend?”

“That’s correct.”

“You started dating her when she left me in December of last year?”

Chaska was back on his feet again before Justin could answer. “Again, Your Honor. We concede that Mr. Baxter is dating Mr. Friedman’s former girlfriend. It has nothing to do with the issue before the court today.”

Judge Leblanc pondered it for a moment. “You know what, Mr. Chaska, I’m going to hear it. I want to put this conversation they had in the proper context, so I’m going to hear it and then give it the appropriate weight.”

David nodded and turned back to Justin. “And when did you begin seeing her?”

“December.”

“In fact, you began seeing her while she still lived with me?”

Justin glanced at Chaska, and then answered reluctantly. “I guess you could say that.”

“And you recall the night I found out that you were seeing her?”

“Yes.”

“We were in Miami?” David’s voice cracked. Justin just nodded. “I was angry?”

“You could say that.”

“I assaulted you?”

Chaska stood. “Your Honor, he’s admitting to committing a crime in open court.”

“And I see where he’s going with it. If their relationship was strained, it makes it less likely that there was an attorney-client relationship.”

David nodded. “Precisely, Your Honor.” Back to Justin: “Now Mr. Baxter, you and I never spoke after the night I assaulted you until the day we met in your office. Is that correct?”

“That’s right.”

“So for all you knew, I was going to assault you again that day?”

“It certainly had crossed my mind. But what you’re leaving out is that I had had extensive conversations with Mackenzie Alderman about your firm representing Meridian Bank.”

“But you and I never had those discussions?”

“Not until we met in my office.”

“I’ll come back to that. You never told Ms. Alderman about our altercation?”

“No. She talked like you and I were great friends.”

“Which we were, before you began having relations with my former girlfriend?”

“Yes, we were.”

David glanced at the judge, hoping she was listening and getting it. “And when we met that day in your office, you never disclosed anything confidential to me?”

“I don’t agree with that.”

“I mean, your mortgage loans, they are all public records?”

“Presumably.”

“You never named one of your borrowers when we talked?”

“I already said I didn’t.”

“You certainly never discussed Pinnacle Homes & Investments?”

Growing impatient, Justin let his eyes roll a bit. “Obviously not.”

David paused, just to build a little suspense. “And didn’t you even ask me at one point whether we could talk in confidence?”

“I don’t recall that being the precise question.”

“But something to that effect?”

Justin reluctantly nodded. “Possibly. Yes.”

David narrowed his eyes, focused intently on his adversary. “And do you recall my answer?”

“I don’t.” Justin was losing his confidence. And credibility.

“Didn’t I answer your question with a question?”

“You tell me,” Justin said.

“Didn’t I ask you whether you had signed an engagement letter?”

“I think you did.”

“And that was a rhetorical question, wasn’t it?”

“You asked it, David.”

“Because we both knew that Meridian Bank had not signed an engagement agreement?”

“We knew that,” Justin said with a tone of defeat.

“And we both know there’s no attorney-client relationship until that’s signed?”

“I would not agree with that.”

“Well, you would agree that I told you not to disclose anything confidential until an engagement was signed?”

“I would not disagree with that.”

Judge Leblanc, clearly frustrated, leaned in Justin’s direction, shaking her head. “Mr. Baxter, either you agree or you don’t. Please answer the question clearly so I can make my ruling.”

“I would agree, Your Honor. Sorry.” Justin gave Chaska a hopeless, if not guilty, stare. The attorney was just sitting back, disgruntled, like a child watching his sand castle wash away in the tide.

“Nothing further, Your Honor.” David took his seat and noticed that Terry was sitting in the back row of the gallery now. He gave David a quick thumbs-up.

Judge Leblanc kept her head down, apparently reading something that David couldn’t see. She finally looked up. “Mr. Chaska, what other evidence do you have that an attorney-client relationship was formed?”

Chaska returned to the lectern, this time with a little less zeal in his step. “Your Honor, that’s the evidence, and that’s enough. Florida law does not require a signed engagement agreement. It does not require payment of a retainer. It requires only a subjective belief on behalf of the client that he is consulting a lawyer for legal services.”

Judge Leblanc nodded in agreement. David finally realized that she nodded at everything. “Mr. Friedman. Your response?”

David stood. “Your Honor. I direct you to my written submission, at page five. Yes, Florida law requires only a subjective belief, but the law is clear that it has to be a
reasonable
one. That’s the key. Mr. Baxter, even assuming he really believed I was his attorney when we talked, his subjective belief was not reasonable. He is sleeping with my girlfriend, the woman he knew I wanted to propose to in the near future. He knew I was very angry about that, too, and only a few weeks earlier I had busted his nose outside a tapas restaurant in Miami for dating her. For him to trust me as his lawyer under these facts is simply unreasonable.”

Judge Leblanc sat stone-faced for a moment. She finally nodded. “I have to agree with him, Mr. Chaska. Under these circumstances, I find that Mr. Baxter could not have formed a reasonable subjective belief that he was speaking to the bank’s lawyer at the time he and Mr. Friedman met in his office.” She paused for a moment before ruling. “The motion to disqualify is denied.”

David turned and grinned at Terry, who returned a quick wink.

Judge Leblanc looked at the clock. “Now we’ve already exceeded the thirty minutes I gave you, Mr. Chaska. What else did you have set for today?”

Chaska returned to the lectern. “Judge, we also have a motion to dismiss and a motion to appoint a receiver. The motion to appoint a receiver will require more evidence and discovery. So we will reschedule that.”

“Please call chambers to get ample hearing time. I’ve briefly reviewed the motion. You need at least half an hour more for that.”

Chaska flipped over a few papers on the lectern. “Yes, Your Honor. So that leaves only the motion to dismiss on the table.”

The judge glanced at the clock. “Yes, and I’ve reviewed that one more closely. I’ve also read Mr. Friedman’s submission in opposition. I find that the motion is due to be denied. Your arguments may prevail, Mr. Chaska, but they raise factual issues that cannot be decided on the face of the pleadings. Feel free to file a motion for summary judgment on those issues at the close of discovery.” Judge Leblanc gathered her papers. “Anything else we need to address today?”

David was trying to play it cool, doing his best to conceal his relief.

But Chaska wasn’t ready to throw in the towel yet. “Yes, Your Honor. For the receiver motion we’re going to reschedule, we will need discovery before the hearing. So we had requested expedited discovery.”

David stood. “Judge, we have objections to that discovery.”

“What are you requesting, Mr. Chaska?”

“For purposes of the hearing, the main issue is escrow records for Gaspar Towers. We have reason to believe that those escrow monies have not been handled in accordance with the Florida Condominium Act. There should be about ten million dollars there, and my client has a security interest in that money. If what is alleged in some of these lawsuits brought by the purchasers is true, it would not only be a crime but also a breach of the loan agreement.”

The judge settled back into her seat. “I’m familiar with those lawsuits. Those are my cases.”

Chaska smiled, seeming to see his opening. “I know they are, Your Honor, and the mishandling of those funds also supports our application for a receiver to manage the property pending the foreclosure.”

The judge turned to David. “Mr. Friedman, what are your objections to those records?”

David felt Frank’s nauseating grip squeezing his torso on the balcony. “Relevance and overbroad, Judge, among others.”

“They have a security interest in those monies, do they not?”

David had to concede that point.

“So how are they overbroad?” the judge moaned.

“It’s the volume of documents. We can give them a summary of the deposits, but they want much more. They want all documents relating to them and all supporting documents. Essentially, it would require us to produce anything tangentially related to the escrow accounts.”

Chaska interrupted. “That’s not true, Judge. We just want all the account statements for the past eighteen months.”

The judge shrugged. “Sounds plenty reasonable to me. Pinnacle Homes will have twenty days to produce those records. Put it in an order along with my other rulings and submit it to chambers within two days.” And with that the judge left the courtroom.

Terry rushed to David and patted him on the back. “Just when I’m ready to throw you to the curb, I see you in action. Excellent job, kid.”

“Yeah, another pyrrhic victory.”

“Why do you say that?”

David eyed Chaska walking toward them.

“Twenty days should be ample time, eh?” Chaska said.

David nodded. “We’ll abide by her order.”

Justin passed Chaska and stopped a few feet from David. “You know you’re never going to win this case, don’t you?” He turned and followed Chaska out the courtroom.

Terry turned to console David. “Don’t worry about that little prick. That’s why we fired him.”

“I don’t care anymore, Terry. I don’t care about anything but this case.”

“Well, in any event, just do whatever you have to and get those escrow records.”

David sighed as he considered that. Any pleasure he felt from winning this hearing was quickly fading with the thought of trying to compel Frank to produce the escrow records.

“What’s wrong?” Terry asked.

“I’m going to need a lot of sunscreen.”

The sun hadn’t risen, but the humid air enveloping the marina was a sure sign that the day would be a scorcher. David was sweating before he reached the dock, which wasn’t saying much—he sweated even just thinking about getting hot. That he practiced law in southwest Florida and had to track to the courthouse wearing a suit in this climate year-round was typical of his good fortune. Fortune aside, he just wanted to get through today in one piece and impress upon Frank the importance of producing the escrow records. If he could further impress Frank by catching a tarpon, so be it.