"I understand that, but what more do you need?"

"It's called evidence, April. We discussed it before."

Her emotions were starting to grate on Brent, but the thought of Bernstein possibly murdering Rick gave him a pang of empathy for her.

"I told you, I'm the lawyer. That's a decision I will make."

"I know. I'm sorry."

"He's not just my investigator, April. He's also my best friend. And I can promise you, if Bernstein is guilty, he will fry."

Brent didn't like to react with emotion in front of a client. That was a bad choice, and it came inextricably intertwined with a promise, which was even worse. The fact was that he was sure that Bernstein was responsible for Rick's disappearance, but hope prevented him from fully realizing that it was too late to save him.

Brent found Agent Angela Wollard in her office, and he was a little irritated that she was not out in the field working on Rick's case. Now it was Brent who was acting like an emotional client.

"You seem a little angry, Mr. Marks."

"Brent, please."

"Brent."

"I know you've got other cases. I'm just upset and frustrated."

"Did you interview the investigator I suggested? He may be able to help."

"Not yet. I just want to ask you one thing."

"I can't discuss the details of the investigation, if that's what you want. Not at this stage."

"I know that. I just want to know if you think Bernstein is guilty."

"Wait a minute. I just said I can't..."

"I know, just give me the benefit of your gut feeling. He was your friend, too."

Angela leaned forward onto her desk, rested her cheek on her knuckles, and sighed. "I think he's hiding something."

17.

It was day seven of Rick's disappearance. The air felt heavier, the light dimmer. Brent went through his morning routine, but nothing seemed right. Rick's absence had left a void in Brent that was now filled with a deep sadness. He knew that he would never see his friend again.

The investigator Angela had recommended seemed to be competent. A certified fraud examiner, Jack Ruder was also a retired FBI agent, from the Los Angeles office, about Rick's age, but it seemed he couldn't shake the old habit of always wearing a G-man style suit. Jack had intelligent brown eyes, a full head of brown hair, and that look that said "cop" all over himself. He had taken up the investigation where Rick had left off, and was able to put together a solid chain of evidence showing that the Marshes' loan had never been assigned to the mortgage backed securities trust, and the forged documents that Prudent Bank had used to try to assign it after the fact.

He had also put together a file of documents that proved that the Marshes had been promised a loan modification, but got a foreclosure instead. There was enough evidence of mortgage fraud to support any RICO complaint, but nothing to back up a murder allegation. Ruder had tried to interview Bernstein, but he had, of course, refused. The only chance Brent would have to interview him would be in his deposition.

The trouble with making an important decision was that you never had enough information to do it without hesitating. And it's the hesitation that gnawed at you and never helped you to make the decision. Brent decided to go with his gut feelings and added the predicate act of "murder" to the complaint.

The complaint was filed in downtown Los Angeles the next morning, and a press release on it went out right after filing. Brent didn't mention the word "murder" in the press release. RICO would be enough of an impact. By late afternoon, he had received a few email inquiries from journalists. The circus had begun.

Prudent Bank's agent for process was served with the summons and complaint immediately by a process server. But Brent had a special service in mind for Bernstein. Jack Ruder waited in his late model white Ford Crown Victoria outside Bernstein's house and waited for him to come home from work. At about 6:30 Bernstein pulled up in his new silver Mercedes Maclaren. Bernstein parked the Maclaren in his driveway, got out of it, and almost bumped into Jack, who handed him the summons and complaint.

"Steven Bernstein, I'm serving you with the summons and complaint in the case of Marsh v. Bernstein."

Bernstein's mouth gaped open. "Okay, you've served me, now get off my property," he spat.

"You may want to talk to me now, Mr. Bernstein."

"Fuck off. Talk to my lawyer."

"Oh, we will. You may want to get one with criminal defense experience. Have a good day."

Jack backed away from Bernstein, who stomped into his house, crumpling the complaint in his hand.

18.

Litigation was war. A war that usually inflicted heavy casualties on both sides. It was an expensive and exhausting battle of wits. The rules of war for federal court were contained in the 86 rules of federal civil procedure, the rules of the local federal court, and the courtroom rules of the particular federal judge.

Everything had its time and place. The discovery rules were drafted to insure that there would be no surprises, and that each side had an opportunity to obtain the evidence that their opponent intended to present at trial. Brent prepared for a one year series of battles leading to the final one, which would be a trial by jury. He knew that the first series of battles would be a full assault on his complaint, to try to throw as much of it out of court as possible.

Brent prepared and filed a motion for preliminary injunction, to stay any foreclosure sale until the matter could come to a trial on the merits. To succeed on the motion, he had to show that the Marshes would be irreparably harmed if the foreclosure would be allowed to proceed without them having their day in court.

This would be fairly simple to prove. Mr. Marsh would stand to lose his only asset his home. Each parcel of real estate was considered to be unique under the law. But Brent would also have to make a showing that he was likely to prevail when his case did come to trial. This was a tougher task.

He didn't have to actually prove his case. That would come at trial. What he had to do was to raise "serious questions" that tipped the balance of hardships more toward the Marshes than Prudent Bank. Brent's written motion took up every inch of the 25 page maximum he was allowed to file. Everything had to be put down on paper; oral argument on the motion in court was just for show; and to answer the judge's questions, if she had any.

She was Judge Virginia Masters, an ex-federal prosecutor, intimately familiar with the workings of the RICO law. Brent's opponents were the Goliath downtown Los Angeles firm of Stein, Stewart and Rothstein, and Prudent Bank was their best client. They would fight tooth and nail to throw out Brent's case, with an unlimited litigation fund which allow for any expense. Brent was the "David" in this war; a one-man firm with a slingshot of an emotional case. If he could get it to the jury, he had a chance of winning.

The first assault launched by Stein, Stewart and Rothstein was by Joe Stein, one of the partners. It was the motion to dismiss that Brent had expected. He spent so many hours in legal research and fleshing out a brief in opposition to it that he lost all track of time. Minutes blended into hours, then into days and, before he knew it, he had been buried in his computer for an entire week. Brent knew he was nearing the end. And every time he thought he had come to the end, he knew it was good. It just had to be better.

"Boss, doesn't your cat ever get hungry?" asked Melinda, as she was leaving the office one day.

"Huh...what?" Brent looked up momentarily from the computer screen.

"Your cat. You do have a cat, right?"

"Yeah, what about her?"

"It's just that I always see you here, early in the morning, and you're here every afternoon when I go home. It seems like you're always in the office."

"Well, I have to get this done."

"I know boss, just saying. You want me to grab you something to eat?"

"Yeah, sure, that would be good," Brent said, not missing a keystroke.

"What do you want?"

"Huh?"

"To eat. What do you want to eat?"

"Oh, anything, anything."

19.

The wood paneled courtroom on Spring Street held a full audience for the motion hearings on the Marsh case. Most of the audience consisted of journalists. Others were members of activists groups protesting mortgage fraud. April sat at the counsel table with Brent, anxiously waiting. Finally, Judge Virginia Masters entered the courtroom in her black robe, and climbed the stairs to her elevated perch. She strained her dark amber eyes through her 1960's style cat eye glasses at the assembly before her. She seemed impatient and unimpressed.

"Case Number CV 13 61940, Marsh vs. Prudent Bank. Counsel, please state your appearances," said Judge Virginia Masters, sternly, well aware of the media coverage, given her aspirations to loftier juristic heights. She had to appear to be strong to the entire public. "I'll hear argument on the motion to dismiss first."

Brent knew it was logical to decide the motion to dismiss first. If the case was dismissed, there would be no need to listen to argument on Brent's motion for an injunction to stop the foreclosure sale. Still, he hated to give Joe Stein the opportunity to take the podium first. He had a reputation for hogging the entire show, kind of like a Senate filibuster.

Joe Stein took the lectern, smiling for the press, as if he were trying to impress a jury that was not there. The grey haired devil looked smart and crisp in his three piece custom tailored suit, and he spoke with deliberate intonation the mark of a great actor as he fixed his steel grey eyes on the judge for his performance.

"Your Honor, the Plaintiff is attempting to capitalize on the wave of public sympathy surrounding foreclosures. Prudent Bank is not the Simon Legree of banking. Nobody wants to foreclose on the Marshes' house or any other house for that matter. But this is business and foreclosure is the last resort. In fact, Prudent Bank is proud of its track record of actually putting people into new homes, and..."

"Let me stop you right there, Mr. Stein," said Judge Masters. "We're not taping a commercial for Prudent Bank. The only person in this room you have to impress is me. So let's get on with it or I will exclude the press from the courtroom."

Judge Masters was a tough broad, with an overdose of testosterone, probably gained fighting the male adversaries she faced while trying cases for the U.S. Attorney's office. Brent had never appeared before her, and was already beginning to regret it.

"I'm sorry, Your Honor, I had only begun the introduction to my argument."

"Mr. Stein, you may think, with this battery of law clerks at my disposal, that I have not read each and every word of your motion and the opposition, as well as your reply to the opposition, but I can assure you that I have. This Court's time is precious, so please don't go over everything in your brief. Just emphasize the points that you have not covered in in the briefs."

"That goes for you, too, Mr. Marks," said the Judge.

Brent had felt a bolt of confidence at her bullying of Stein, until she came to that comment.

"Mr. Stein, I want you to speak to the issue of predicate acts for the RICO count," said Masters.

Not a good sign. That was the weakest link in Brent's case and she had zeroed in on it. Federal judges sometimes ask questions when they have already made up their mind about an issue, but want to seem to be fair to the opposition. Stein was beaming at the opportunity to go for the jugular vein in Brent's case.

"Your Honor, that is the weakest part of the Plaintiff's case," he argued. "The predicate act of murder..."

"Mr. Stein," said the Judge, interrupting him again, "let's discuss first the mail fraud and wire fraud allegations."

"Very well, Your Honor. In order to pass muster under Rule 9, allegations of fraud have to be specific. The four W's "who what, when and where" are missing here. These allegations fail under Rule 9 because they are generic against Prudent Bank. They also allege that documents were forged to cover up an alleged fraudulent scheme, but in cases of fraud, you have to show reliance. Nowhere is it alleged here that Mr. Marsh relied on the alleged forgeries and suffered damages because of that reliance. And they cannot prove that, Your Honor. That is why we are requesting that you dismiss this count with prejudice."

Brent felt like jumping up at this point, but protocol dictated that he keep his mouth shut until it was his turn to speak. Clients often interpreted following this protocol as a sign of weakness, but Brent had prepared April well.

"With regard to the bank fraud allegations, the Plaintiff has the same problem," Stein continued, in detail. "But the weakest link of all is the absurd allegation of murder."

Stein kept true to his reputation. His filibuster lasted for the entire ten minutes of his allotted argument time. It was clear, concise, and made sense. When Judge Masters signaled that the speech was over, Brent approached the podium, juiced with adrenalin.

"Your Honor, since, for the purposes of this motion, the allegations in the Plaintiff's complaint are to be taken as true, all we have to do is sufficiently plead an enterprise, which is Prudent Bank; and the conduct of that enterprise through a pattern of racketeering, or investment of a part of the income of the racketeering activity into Prudent Bank. This has all been alleged. To allege racketeering activity, we only to have plead two predicate acts.

"In the days leading to the demise of Tentane Mutual, Prudent Bank knew that it was going to take over the assets of Tentane during the FDIC seizure. In fact the seizure and the asset takeover happened almost simultaneously. When Prudent found out that many of its mortgages had not been assigned to the mortgage backed securities trust pool, that Tentane had parceled off and sold securities that were not backed by the mortgages, and that it had no right to collect or service those mortgages, it began an elaborate cover up, by forging notary signatures and recording documents more than three years after the fact.

"This is obtaining property owned by or under the control of a financial institution by means of false or fraudulent pretenses; one of the predicate acts. Prudent also utilized the U.S. mail to record the forged documents. This is the predicate act of mail fraud. Therefore the Plaintiff has pleaded a sufficient case under RICO."

"Mr. Marks," said the Judge. "Even if you do get past the hurdle of pleading fraud with specificity, which I am not sure that you do with the mail fraud issue, you still have the problem of reliance. Mr. Marsh already had his loan at the time of the alleged mail fraud and financial institution fraud. How could he have possibly relied on the alleged fraudulent actions three years after the fact?"

"Your Honor, with regard to financial institution fraud, we have alleged that Prudent Bank collected interest and principal from Mr. Marsh on his loan, and applied it to the MBS holders' accounts, even though the note and deed of trust were not properly transferred to the Trust. That collection is also based on the forgery and recordation of the assignment.

In fact, they had no true right to collect, and Mr. Marsh relied upon their representations that he was paying his mortgage payments to the correct loan servicer, when Adelay Gioriano, the employee of Prudent Bank, indicated to Mr. and Mrs. Marsh that the bank had taken over the loan and directed payment to be made to them."

"That still leaves you with the problem of the lack of specificity of the mail fraud allegation, Mr. Marks,"

"If Your Honor is not satisfied that we have alleged the mail fraud with certainty..."

"And I am not..."

"...Then I would point out to the Court the fact that the murder and attempted murder allegations also serves as predicate acts."

"You realize then, do you not, Mr. Marks, that your entire RICO case would depend upon proving a case of murder?"

"Or attempted murder, Your Honor. Yes, I do. There is no federal rule that says I have to plead murder with specificity."

"Your Honor, may I be heard please?" asked Stein.

"Are you finished, Mr. Marks?" asked the Judge.

"No, Your Honor, I am not. The Defendants have profited from the biggest bank default in history. The fraudulent and deliberately criminal acts committed by Prudent Bank and its predecessor nearly destroyed the entire world economy, and the government gave them billions of dollars in bailout money which they used, not to help people refinance, which they promised my client and countless others, but to foreclose on millions of homes and make obscene profits. The Plaintiff has sufficiently pleaded a case of racketeering and the motion to dismiss must be denied."