Matter of Greene
SJC 11935
| Mass. | Dec 2, 2016Background
- Evan A. Greene, a real estate attorney, participated in 2005–2006 "foreclosure rescue" transactions: purchasing distressed homeowners' properties, leasing them back under onerous terms, and giving homeowners an option to repurchase for a large nonrefundable fee.
- Mortgage brokers referred homeowners and received referral fees; Greene (or his firm) financed purchases, prepared HUD-1 settlement statements that misrepresented transaction terms, and did not disclose leases/options to lenders.
- All homeowners defaulted on payments; only one exercised the repurchase option. Greene or his associates submitted false documents to lenders and made false certifications; conflicts of interest arose when an associate represented a lender while Greene was a borrower.
- Greene pleaded guilty in federal court to twelve counts under 12 U.S.C. § 2607(a) (illegal kickbacks/unearned fees), was sentenced to 12 months and a day in prison and fined $10,000.
- The Board of Bar Overseers and a hearing committee found multiple professional violations and recommended an indefinite suspension (allowing Greene to apply for reinstatement earlier than the default rule because he had already been suspended ~19 months). The single justice adopted that recommendation; Greene appealed only the sanction as excessive.
Issues
| Issue | Plaintiff's Argument (Bar Counsel) | Defendant's Argument (Greene) | Held |
|---|---|---|---|
| Appropriate sanction for criminal convictions under 12 U.S.C. § 2607(a) | Multiple convictions, prison sentence, fine; support a multi-year suspension | Sanction is too harsh compared to other cases | Court: Criminal convictions warrant substantial discipline; two-year suspension would be comparable if standing alone, but more is justified given cumulative misconduct |
| Sanction for false/fraudulent HUD-1 statements and related misconduct | Repeated HUD-1 falsifications, fraudulent documents, and abusive transactions justify additional suspension | Sanction is disproportionate; argues similarity to less severe precedents | Court: HUD-1 violations across multiple transactions and aggravating circumstances justify at least a two-year suspension alone |
| Effect of mitigation (settlement payments, cooperation, no prior discipline, inexperience) | These are nominal and should not significantly reduce sanction | Greene seeks mitigation credit for settlements, cooperation, limited experience | Court: Typical mitigating factors given little weight; settlements offer little mitigation; Greene was experienced in closings and mitigation is minimal |
| Cumulative sanction (indefinite suspension vs term suspension) | Cumulative criminal convictions + HUD-1 fraud + aggravating factors (self‑interest, vulnerable victims, lack of candor) require protection of public and deterrence; indefinite suspension appropriate | Indefinite suspension is excessive given precedents with term suspensions | Court: Accepts board's recommendation; indefinite suspension affirmed with modified readmission timing (may apply earlier than default rule because of prior 19‑month suspension) |
Key Cases Cited
- Matter of Alter, 389 Mass. 153 (standard for review of disciplinary sanctions)
- Matter of Palmer, 413 Mass. 33 (consider cumulative effect of violations)
- Matter of Foley, 439 Mass. 324 (deference to board recommendations)
- Matter of Concemi, 422 Mass. 326 (settlement payments afford little mitigation)
- Matter of Lupo, 447 Mass. 345 (aggravating factors and sanctioning principles)
- Matter of Grella, 438 Mass. 47 (deference to board's sanction recommendation)
- Matter of Luongo, 416 Mass. 308 (indefinite suspension appropriate where multiple violations exist)
- Matter of Kerlinsky, 428 Mass. 656 (public perception central to disciplinary decisions)
- Matter of Crossen, 450 Mass. 533 (example of indefinite suspension)
- Matter of Curry, 450 Mass. 503 (example of indefinite suspension)