United States v. A Fee Simple Parcel of Real Property

• Decision Date: 12 January 1987
• Docket Number: Civ. A. No. 86-0161.
• Parties: UNITED STATES of America v. A FEE SIMPLE PARCEL OF REAL PROPERTY SITUATED IN THE CITY OF BAL HARBOUR, STATE OF FLORIDA, Census Tract 38, Map Reference 52-42-26, Unit 6A, 9801 Collins Avenue, Project Balmoral, Dade County, Florida 23154, Folio XX-XXXX-XX-XXX
• Court: U.S. District Court — Eastern District of Louisiana

650 F. Supp. 1534

UNITED STATES of America v. A FEE SIMPLE PARCEL OF REAL PROPERTY SITUATED IN THE CITY OF BAL HARBOUR, STATE OF FLORIDA, Census Tract 38, Map Reference 52-42-26, Unit 6A, 9801 Collins Avenue, Project Balmoral, Dade County, Florida 23154, Folio XX-XXXX-XX-XXX

Civ. A. No. 86-0161.

United States District Court, E.D. Louisiana.

January 12, 1987.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gregory C. Weiss, Asst. U.S. Atty., New Orleans, La., for plaintiff.

Ira N. Loewy, Donald I. Bierman, Miami, Fla., for defendant Robert Seraydar.

Henry H. Bolz, III, Miami, Fla., for defendant Pan American Bank, N.A.

ROBERT F. COLLINS, District Judge.

The Court, sitting without a jury, tried this case on October 24, 1986 and took the matter under advisement. The following Findings of Fact and Conclusions of Law are now made.

FINDINGS OF FACT

Plaintiff, United States of America, seeks forfeiture of the defendant real property pursuant to 21 U.S.C. § 881(a)(6). Claimant, Robert Seraydar, contests the seizure and asserts ownership of the property. Claimant, Pan American Bank, N.A., (the Bank) holder of a mortgage on the property, claims the value of that lien, plus fees and costs.

In October 1985, Randy Fink was convicted of conspiracy to import and distribute 52,210 pounds of marijuana. For a decade prior to his conviction, Fink was principally engaged in the business of smuggling drugs.

In early 1984, Fink hired a real estate broker to help him find a condominium for his mother. After a suitable apartment was located in Bal Harbour, Florida, Fink sought the assistance of an associate, Anthony Varca, to help him find a "nominee" who would be the public record owner.

Fink had known Varca for approximately three years prior to his arrest. Varca owned a shipping company in Fort Lauderdale, Florida and used the corporation to provide Fink with vessels to transport marijuana from Columbia. Fink testified by deposition that he was responsible for coordinating the loading and unloading of the vessels. In the course of their business relationship, Fink came to trust Varca and eventually gave him the power of attorney over a bank account at the Bank of Credit and Commerce International (BCCI) located in the Cayman Islands. All of the money contained therein were the proceeds of Fink's drug smuggling operations.

Varca advised Fink that he would arrange to obtain a nominee owner for the defendant for the sum of $25,000.00. In order to protect Fink's interest in the defendant, Varca agreed to arrange a lien against the defendant and to work an under-the-table deal with the nominee to return the defendant to Fink. At some point, Varca advised Fink that the claimant, Robert Seraydar, would be the "front man" for the defendant. Having obtained power of attorney over Fink's BCCI account, Varca ordered the BCCI to make a check payable in the amount of the purchase price of the defendant.

Claimant, Robert Seraydar, is a 74-year-old retired photoengraver. He gained experience with oceangoing tugboats during World War II, when he worked for the Army Transport Service. In the years since the war, he has on occasion worked on the rehabilitation of other vessels.

Mr. Seraydar was introduced to Varca by a mutual friend by the name of Warren Kerns. Varca owned Romar Transports, Ltd., a shipping and ship supply company located in Fort Lauderdale, Florida, and Varca and Kerns had known each other for approximately 20 years. Seraydar testified that in the late spring of 1984, Varca approached him with a business deal to move an oil tanker which had been tied up in a legal battle in the Dominican Republic. The plan was for Seraydar to renovate an oceangoing tug known as the OCEAN CROWN, captain it to the Dominican Republic, from where he was to tow the tanker to the Cayman Islands.

Seraydar claims that he was promised a minimum fee of $50,000.00 to embark on the voyage, and $100,000.00 if he successfully towed the tanker to the Cayman Islands. All expenses incurred in the venture were also included. The OCEAN CROWN left Tampa, Florida in September, 1984, under Seraydar's command and headed for the Dominican Republic. The vessel, however, ran into Hurricane Isadore and had to be rescued by the Coast Guard. Seraydar claims that it was at this point that Varca offered him the defendant as security for his $50,000.00 fee. He testified that he agreed to accept title to the defendant because it was the only way that he could ensure that he was paid for his services.

Seraydar attended the closing on the defendant property and received a deed naming him as the record owner in fee simple on November 2, 1984. The sellers of the property were paid by Varca from funds that were used from Randy Fink's bank account. After Seraydar obtained title to the defendant, he had an argument with Varca concerning the seaworthiness of the OCEAN CROWN. Seraydar considered the ship to be unsafe and refused to resail to the Dominican Republic unless Varca repaired the ship. Varca refused, and Serayder backed out of the deal.

From November, 1984 to about May, 1986, Randy Fink's mother resided in the defendant. For the entire time, Seraydar never collected any rent or moneys from Fink's mother during her tenure there. Seraydar testified that Mrs. Fink told him that her son, Randy Fink, had bought the apartment for her. At no time did Seraydar reside in the defendant or rent it.

The Court finds it incredible to believe that Mr. Seraydar had no inkling of the drug deals of Tony Varca and Randy Fink. Mr. Seraydar is a worldly and knowledgeable man who has been in the shipping business for many years. While he may have contracted to go on a vessel recapture venture for Tony Varca, the Court does not believe that he was unaware of an illegal money source if Tony Varca could deed him property valued in excess of $200,000.00, but could not pay him $50,000.00 in cash. Additionally, it is incredible that Mr. Seraydar did not seek to evict or collect rent from Mrs. Fink when she established residence in the defendant. If he was as "innocent" as he claims, he would have taken some action to find out who Randy Fink was or to evict his mother. Of some note is the fact that Mr. Seraydar executed an Affidavit Concerning Business Purpose in connection with the mortgage from Pan American Bank, wherein he represented that he will not occupy the defendant for more than fourteen days in any year, and that the property was to be used only for investment purposes. The fact that he never made a penny from the defendant is significant in the Court's determination that Mr. Seraydar was aware of the drug smuggling connections of Tony Varca and Randy Fink.

Beginning in approximately March of 1985, Seraydar began to pay condominium fees and real estate taxes associated with the defendant. On May 30, 1985, he obtained a $38,000.00 loan from Pan American Bank, N.A. using the defendant as collateral. The Bank has filed a claim in this action to recover that loan.

The Government has asserted that the Bank has no standing to contest this forfeiture because it was not innocent. The Government argues that there were certain irregularities about the manner in which Mr. Seraydar obtained a loan. The Court, however, is not persuaded by these contentions.

At all times material to this action, the Bank was a national banking association with its principal place of business in Dade County, Florida. Mr. Seraydar has had a long standing relationship with the Bank and its predecessors in interest for approximately 18 years. Both Mr. Seraydar and his family were well known to Mr. Russell Moneyhun, the loan officer. Mr. Moneyhun has testified by deposition that there were never any legal problems, any suspicious transactions, or any other unusual events in Robert Seraydar's banking history.

Mr. Seraydar applied for a loan on the defendant in May, 1985, and the Bank caused the title on the defendant to be examined and searched to assure that Mr. Seraydar was the true owner. When the title search and abstract review indicated that Mr. Seraydar owned the defendant in fee simple and that its appraised value was in excess of $200,000.00, the Bank approved the loan without requiring Mr. Seraydar to prepare and file a financial statement. Additionally, in the two years that preceded Mr. Seraydar's mortgage application, he had deposited approximately $60,000.00 in 1983 and $90,000.00 in 1984 from the sale of stock.

The Bank followed the same procedure that it instituted when a $7,000.00 loan was made to Seraydar in 1984. At that time, a personal financial statement was also not requested from Mr. Seraydar, because the loan was fully secured by collateral. That loan was paid back in the ordinary course of business without any delay or problems. The Bank duly and properly caused the resulting Promissory Note and Mortgage on the defendant to be recorded in Dade County, Florida, thereby establishing the legal interest of the Bank in the defendant.

Based on the preceding facts, the Court finds that Pan American had no actual or constructive knowledge or any involvement in any illegal activities of Randy Fink and Anthony Varca. The Bank's failure to obtain a personal financial statement from Mr. Seraydar in May, 1985 is insufficient to establish any knowledge of the illegal activity giving rise to the "tainted money" used to purchase the defendant.

Insofar as these Findings of Fact also constitute Conclusions of Law, they are specifically adopted as both Findings of Fact and Conclusions of Law.

CONCLUSIONS OF LAW

The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1345 and 1355. Venue in this action lies properly in the Eastern District of Louisiana.

Probable Cause

The forfeiture of the defendant property is sought by the Government pursuant to the Comprehensive Drug Abuse Prevention and Control Act of 1970 § 511(a)(6) as amended, 21 U.S.C. § 881(a)(6). This provides...