In Re Stewart
2011 U.S. App. LEXIS 10532
11th Cir.2011Background
- Residential construction scheme originated in Florida housing boom; investors purchase model homes at 90% of appraised value via interdependent contracts among investor, mortgage broker, builder, and bank; construction loan funds are advanced in draws and deductions cover broker fees and closing costs; when builders failed, investors faced default demands from Coast Bank and unfinished properties; petitioners claim CVRA victim status and seek restitution for broker kickback (two-point fee) allegedly tied to Coon's crime; district court found petitioners not caused losses by Coon and denied restitution but later hearings recognized victims but still denied relief; petitioners seek mandamus to compel restitution equal to one point depending on the illicit fee based on Coon's conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for CVRA mandamus petition | Stewart argues ordinary appellate review applies | Coon argues mandamus standards apply | Mandamus standard applied; standard defers to causation/clear error when assessing losses. |
| Causation of petitioners' loss | Losses due to Coon's crime (kickback) | Losses stem from builder insolvency and default | Losses attributed to builder insolvency, not Coon's crime. |
| Restitution entitlement for one point | Seek restitution equal to two-point addon caused by illicit agreement | No loss caused by Coon; only costs passed through to borrowers | Writ denied; restitution not warranted under CVRA based on causation. |
Key Cases Cited
- In re Stewart, 552 F.3d 1285 (11th Cir. 2008) (mandamus-like CVRA victim status; district court required relief initially but later findings used for relief decisions)
- Klay v. United Healthgroup, Inc., 376 F.3d 1092 (11th Cir. 2004) (standard for abuse of discretion and findings of fact; clear error)