In the Matter of Robinson v. Fireman, 092184/1984
Cite as: In the Matter of Robinson v. Fireman, 092184/1984, NYLJ 1202497579155, at *1 (Sup., KI, Decided June 3, 2011)
Justice Ellen M. Spodek
Decided: June 3, 2011
DECISION AND ORDER
Upon the 2003, 2004 and 2005 accountings filed by suspended guardian of the property, Ray Jones, Esq., on March 24, 2006; and
Upon the 2006 accounting filed by suspended guardian of the property, Ray Jones, Esq., on May 22, 2007; and
Upon the amended 2003, 2004, 2005, 2006 and 2007 accountings filed by suspended guardian of the property, Ray Jones, Esq., on May 30, 2008; and
Upon the 2008 accounting filed by suspended guardian of the property, Ray Jones, Esq., on May 27, 2009; and
Upon the 2009 accounting filed by suspended guardian of the property, Ray Jones, Esq., on June 22, 2010; and
Upon the reports of former court examiner, Abraham Spector, Esq., noticed for settlement on December 17, 2009, approving the annual accountings of Ray Jones, Esq., for the years 2003 through 2007; and
Upon the compliance order dated April 29, 2010 directing the guardians, court
*2examiner and counsel to appear on June 4, 2010 before Hon. Loren Baily-Schiffman; and
Upon the order dated June 14, 2010 directing the appearance of the guardians, court examiner, and the surety on June 23, 2010 before this Court; and
Upon the order dated June 24, 2010 suspending Ray Jones, Esq., as guardian of the property of JOSEPHINE R., appointing Linda Redlisky, Esq., as interim guardian of JOSEPHINE R.; and
Upon the order dated June 24, 2010 removing Abraham Spector, Esq., as court examiner and appointing successor court examiner, Seth Coen, Esq.; and
Upon the preliminary report of successor court examiner, Seth, Coen, Esq., dated July 30, 2010; and
Upon the response of Ray Jones, Esq., suspended guardian of the property, dated August 16, 2010; and
Upon the Affirmation in reply of the successor court examiner Seth Coen, Esq., and the Pre-trial Memorandum of Law submitted on behalf of Fidelity and Deposit Company of Maryland dated November 19, 2010; and
Following hearings held on November 22 and 23, and December 22, 2010 wherein Ray Jones, Esq., Seth Coen, Esq., Linda Redlisky, Esq., William Mait, Esq. for the surety, JOSEPHINE R., Lianne R., Clover Barrett, Esq., Keri Watkins, Miko N. Simmons, and Ezekiel Barnett appeared, this Court finds as follows:
In 1977, Josephine R. suffered injuries during the delivery of her daughter, Lianne R. Representatives of Josephine R. commenced a medical malpractice action under Kings County Index #013936/1977. By order dated November 9, 1984, the action was settled as
…defendants shall pay the sum of $6,986.00 monthly to Josephine R. totaling $83,832.00 per annum for the rest of her natural life with incremental increases based on 3 percent per annum compounded annually. In the event that Josephine R. lives less than 20 years then payment shall continue to Lianne R. until such time as Josephine R. would have lived for 20 years from the date of the first payment hereunder, and at the 21st anniversary of the settlement herein, the sum of ONE MILLION ($1,000,000.00) DOLLARS shall be paid to and for the benefit of Josephine R. or her daughter Lianne R. if she, Josephine R., is not then living; if she is then living, the yearly payments herein with increments shall continue notwithstanding the payment of the said $1,000,000.00.
Following the settlement, a proceeding was commenced on November 21, 1984, for the appointment of a conservator for Josephine R.
By order dated April 2, 1985, Philip B. Roache, Esq., was appointed conservator of Josephine R. The conservatorship was permitted to purchase a house for Josephine R. on October 31, 1985. Following a motion by Mr. Roache to resign, Ray Jones, Esq., was appointed successor guardian of the property of Josephine R. on February 13, 2003. Thereafter, Mr. Jones obtained a bond in the amount of $415,000.00 and obtained his Commission on February 24, 2003. After a lengthy proceeding settling the final account of the prior guardian, Phillip Roache, Esq., a decision and order dated April 26, 2007 left the guardianship with a remaining balance of forty three thousand three hundred eighty four dollars and seventy cents ($43,384.70). The court further ordered an increased bond totaling $1,600,000.00.
Mr. Jones, the successor guardian, filed annual reports for the years 2003 through 2005 on March 24, 2006. Amended accountings for the years 2003 through 2008 were filed on May 30, 2008. In the amended 2005 accountings, Mr. Jones recorded the one
*4million dollar ($1,000,000.00) lump sum payment received as income. In the 2006 annual report, Mr. Jones shows a five hundred twenty five thousand dollar ($525,000.00) decrease in principal in the form of a "First Mortgage Loan Investment" to Clover Barrett, d/b/a 1295 Sterling Place, LLC. In the 2007 annual report, Mr. Jones similarly shows a six hundred fifty thousand dollar ($650,000.00) decrease in principal in the form of a "First Mortgage Loan Investment" to Keri Watkins d/b/a 60 Clifton Place, LLC.
These reports were unexamined until the court appointed successor court examiner, Abraham Spector, Esq., on October 17, 2007. Thereafter, Mr. Spector proceeded to examine Mr. Jones' accountings and simultaneously settled five separate reports on notice for December 17, 2009. These reports were actually filed with the guardianship office on December 28, 2009. Mr. Spector found no significant issues regarding the 2003, 2004, and 2005 accountings and recommended approval. Even though the five hundred twenty five thousand dollar ($525,000.00) transaction was reflected in the 2006 accountings and his report, he also recommended approval. In his 2007 report, Mr. Spector mentioned the two mortgages related to 1295 Sterling Place and 64A Clifton Place in Kings County but recommended that the bond remain unchanged and did not recommend any further court inquiry.
Subsequently, Mr. Jones filed the 2008 accounting on May 27, 2009 and the 2009 accounting on June 22, 2010. Neither accounting has been reviewed by a court examiner but has been reviewed by this Court for the purposes of determining the validity of the two mortgages at issue. Although no objections were filed against any of the accountings or court examiner's reports, the Court found that these unusual transactions required further inquiry.
*5The Court attempted to resolve the outstanding accounting issues mentioned in Mr. Spector's 2007 report and held conferences on June 4, 2010 and June 23, 2010, wherein Mr. Jones appeared with counsel, Harvey Greenberg, Esq., on both occasions. Following the June 23rd conference, the Court suspended Mr. Jones as guardian of the property pursuant to MHL §81.37(a) by order dated June 24, 2010. Linda Redlisky, Esq. was appointed interim guardian of the property pending resolution of the accounting issues. In the same order, Mr. Spector was removed as court examiner and Seth Coen Esq. was appointed in his place as successor court examiner. Mr. Coen was directed to review the 2003 through 2008 accountings and submitted his preliminary report on or about July 30, 2010.
In September 2010, Mr. Jones' attorneys, Greenberg & Wilner made an application to withdraw as counsel for Mr. Jones. By order dated September 29, 2010, this application was granted and the matter was stayed to give Mr. Jones an opportunity to retain new counsel. Shortly thereafter, the Court was notified that Mr. Jones was not able to retain counsel and would appear pro se. The Court received Mr. Jones' written response to Mr. Coen's preliminary report which contained some direct answers to issues raised by Mr. Coen. A framed issue hearing was held on November 22, 23, and December 22, 2010 to determine the propriety of two mortgage transactions involving 1295 Sterling Place and 64A Clifton Place.
1295 Sterling Place
On or about November 30, 2006, Mr. Jones, as guardian of the property of Josephine R., executed a mortgage giving five hundred twenty five thousand dollars ($525,000.00) to the mortgagor, 1295 Sterling Place LLC. An assignment of leases and
*6rents was also executed in favor of Ray Jones, guardian of the property of Josephine R. Clover Barrett, presumably as principal of 1295 Sterling Place, LLC., personally guaranteed all terms of the mortgage, mortgage rider and assignment of leases and rents. An attached mortgage rider specified that interest was calculated at 9 percent for the period of one year and the first year's interest was prepaid from the subject loan in the amount of forty seven thousand two hundred fifty dollars ($47,250.00). An appraisal dated October 12, 2006, was submitted to the Court by Mr. Jones in response to the court examiner's preliminary report, showing an assessed value for 1295 Sterling Place at seven hundred sixteen thousand dollars ($716,000.00). The appraiser, Jeffrey Scott Jacobs, was not appointed by the court, nor is he listed as a possible candidate for appointment on the Part 36 list.
On February 27, 2009, 1295 Sterling Place, LLC borrowed an additional sixty thousand ($60,000.00) from another private lender in the form of a subordinate mortgage. On the same date, a consolidation, extension, and modification agreement was executed between 1295 Sterling Place, LLC and Ray Jones, guardian of the property of Josephine R. The agreement lowered the interest rate from 9 percent to 7 percent on the principal amount of five hundred twenty five thousand dollars $525,000.00. Monthly payments in the amount of three thousand sixty two dollars and fifty cents ($3,062.50) were to begin on April 1, 2009 for a period not to exceed three years. At the end of the three-year period, the entire principal of five hundred twenty five thousand dollars ($525,000.00) is due and payable in one payment.
60/64A Clifton Place
In another related case, the guardianship of Lucille S., Index #105063/1997, Mr.
*7Jones was appointed real estate broker by order dated July 14, 2004. This order directed the possible sale of 60 Clifton Place, Brooklyn, NY. The contract of sale references 60 Clifton Place, but actually lists the block and lot number as 1952/9. This block/lot number is associated with 64A Clifton Place, Brooklyn, not 60 Clifton Place.
A subsequent order, dated October 1, 2004, appointed an appraiser and directed an appraisal of 60 Clifton Place1. In a report dated November 8, 2004, Christopher P. Clark valued 60 Clifton Place at three hundred fifty thousand dollars ($350,000.00). This report notes that a 30 percent adjustment was made to the value in order to reflect the poor condition of the property 2
By order dated May 16, 2005, the court directed the sale of 60 Clifton Place, but did not specify a particular block and lot number. The court awarded Mr. Jones twenty one thousand two hundred fifty five dollars ($21,255.00) as his 5 percent commission for services rendered as real estate broker and further awarded him three thousand seven hundred fifty dollars ($3,750.00) for his legal services and nine hundred fifty dollars ($950.00) for paralegal services.
*8On May 19, 2005, Keri Watkins purchased 64A Clifton Place, Brooklyn (Block 1952, Lot 9), from Sherrie Tanner-Campbell, guardian of the person and property of Lucille S. for four hundred twenty five thousand one hundred dollars ($425,100.00). On May 26, 2005, a mortgage was executed between Ezekiel Barnett, as mortgagor, and Keri Watkins for six hundred thousand dollars ($600,000.00).
Almost two years later on April 10, 2007, three separate documents were simultaneously executed. The first was a correction mortgage which amended the May 26, 2005 mortgage to reflect that Ezekiel Barnett was actually the mortgagee, not the mortgagor. The second document was a mortgage wherein Josephine R., individually, agreed to a mortgage giving six hundred fifty thousand dollars ($650,000.00) to Keri Watkins at an interest rate of 9 percent. This document was only signed by Keri Watkins. The third document was a subordination agreement executed between Ezekiel Barnett and Josephine R., individually, for the subordination of Barnett's May 26, 2005 mortgage (and the April 10, 2007 correction mortgage) to the six hundred fifty thousand dollars ($650,000.00) mortgage in favor of Josephine R. As with the mortgage, Mr. Barnett was the only party to sign this document.
Finally, on April 10, 2010, a consolidation, extension, and modification agreement was executed between Keri Watkins and Ray Jones as guardian of Josephine R. The agreement lowered the interest rate from 9 percent to 5 percent on the principal amount of six hundred fifty thousand dollars ($650,000.00). Monthly payments in the amount of two thousand seven hundred and eight dollars and thirty three cents ($2,708.33) were to begin May 1, 2010 for a period not to exceed 35 consecutive months. At the end of 35 months, the entire principal of six hundred fifty thousand dollars ($650,000.00) would be due and
*9payable in one payment.
A guardian appointed pursuant to Article 81 of the Mental Hygiene Law is defined as a fiduciary. SPCA §103(21), In re: Mel S. 15 Misc.3d 1037 [Supreme Court Ostego County, 2007]. "[A] fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect" Birnbaum v. Birnbaum 73 NY2d 461, 466, citing Meinhard v. Salmon 249 NY 458, 463-464 . A guardian must "…exercise the utmost care and diligence when acting on behalf of the incapacitated person" and further "exhibit the utmost degree of trust, loyalty and fidelity in relation to the incapacitated person". MHL §81.20(a). A guardian of property management must "preserve, protect, and account for such property and financial resources faithfully". MHL §81.20(a)(6)(ii). "This is a sensitive and 'inflexible' rule of fidelity, barring not only blatant self-dealing, but also requiring avoidance of situations in which a fiduciary's personal interest possibly conflicts with the interest of those owed a fiduciary duty." Birnbaum at 466. A guardian may be removed when "the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just". MHL §81.35. "The trial court is accorded considerable discretion in determining whether a guardian should be replaced and an overarching concern remains the best interest of the incapacitated person. See, In re Joshua H., 62 AD3d 795 [2d Dept. 2009], In re Francis M., 58 AD3d 937 [3 Dept. 2009.]
MHL §81.21(a) permits a guardian to invest funds of the incapacitated person as permitted by the Prudent Investment Act embodied in EPTL §11-2.3(e). The guardian must "exercise reasonable care, skill and caution to make and implement investment and
*10management decisions as a prudent investor would for the entire portfolio, taking into account the purpose and terms and provisions of the governing instrument". EPTL §11-2.3.(b)(2), Matter of Janes, 90 NY2d 41, 50 .
"The prudent investor rule requires a standard of conduct, not outcome or performance." EPTL §11-2.3.(b)(1). "While a court should not view each act or omission aided or enlightened by hindsight, [citation omitted] a court may, nevertheless, examine the fiduciary's conduct over the entire course of the investment in determining whether it has acted prudently." Matter of Janes at 50; see also In Re Estate of Atkinson 148 AD2d 329 [3 Dept., 1989]. The guardian's conduct is judged upon the facts that were known or should have been known to the guardian. In re JP Morgan Chase Bank, 27 Misc3d 1201(A) [Surr Ct Westchester, 2010].
In determining overall investment strategy, EPTL §11-2.3(b)(3) requires that the fiduciary consider several factors when investing assets. Specifically, EPTL §11-2.3(b)(3)(B) requires a fiduciary to consider:
the size of the portfolio
the nature and estimated duration of the fiduciary relationship, the liquidity and distribution requirements of the governing instrument
general economic conditions
the possible effect of inflation or deflation
the expected tax consequences of investment decisions or strategies and of distributions of income and principal
the role that each investment or course of action plays within the overall portfolio
the expected total return of the portfolio (including both income and appreciation of capital)
and the needs of the beneficiaries (to the extent reasonably known to the trustee) for present and future distributions authorized or required by the governing instrument.
Pursuant to the Prudent Investment Act, the fiduciary is required to diversify assets unless the fiduciary reasonably determines that it is in the interest of the beneficiaries not
*11to diversify. EPTL §11-2.3.(b)(3)( c). Courts have considered the failure to diversify as a factor when determining whether assets were invested with prudence. See Matter of Janes 223 AD2d 20 [4 Dept., 1996], Matter of Saxton, 274 AD2d 110 [3 Dept., 2000], Matter of Newhoff, 107 AD2d 417[2 Dept., 1985]. For example, a portfolio concentrating almost exclusively with high tech stocks demonstrated poor financial judgment and warranted removal of guardians. In re Huang 2003 WL 21048965 [Sup Ct., NY County 2003].
If the investments are imprudent or not diversified, the court may surcharge the fiduciary for damages. Matter of Rothko, 43 NY2d 305, 401 . Whether a fiduciary's conduct was prudent is a factual determination to be assessed together with all the facts and circumstances of a particular case. Matter of Janes 223 AD2d 20, 50 [4 Dept., 1996] Matter of Saxton, 274 AD2d 110, 118 [3 Dept., 2000].
Following his suspension and the preliminary report of the court examiner, this Court held a framed issue hearing on November 22, 23, and December 22, 2010 to determine the propriety of Mr. Jones' investment decisions for the two mortgages. The court examiner subpoenaed Clover Barrett, Kerry Watkins, Ezekiel Barnett and Miko Simmons Jones, a notary associated with both mortgage transactions, who is also the wife of Mr. Jones. During the course of these hearings, the court examiner sought testimony regarding the circumstances surrounding Mr. Jones' decision to enter into the two mortgage agreements related to 1295 Sterling Place and 64A Clifton Place. Mr. Jones invoked his right against self incrimination to almost every question, except to acknowledge
*12that he is an attorney who was admitted to practice in the State of New York in 1984.
The privilege against self-incrimination may be asserted to protect a witness from being compelled to provide "an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture…" CPLR §4501. However, the witness must invoke the privilege in response to individual questions and cannot invoke a blanket refusal to answer all questions. State v. Carey Resources, Inc. 97 AD2d 508 at 509 [2d Dept 1983]. The fact finder may draw an adverse inference from the refusal to answer relevant questions. Marine Midland Bank v. John Russo Produce Co. 50 NY2d 31 . It has even been held that a fiduciary who filed an official oath to faithfully and honestly discharge the duties of the office waived the privilege against self incrimination as to matters involving judicial accountings. Matter of the Estate of Hamilton, 181 Misc.2d 697 [Surr. Ct. Queens, 1999].
As a court appointed fiduciary sworn to faithfully and honestly discharge his duties, the Court finds Mr. Jones' complete lack of candor extremely disturbing. Based upon the court file, Mr. Jones' written responses and his refusal to testify, it is difficult to reconcile the circumstances described below with the standards of loyalty and fidelity expected of a guardian. His written responses are merely attempts to mislead the Court and conceal his misconduct. His unwillingness to answer any questions under oath suggests that Mr. Jones understood the ramifications and consequences of his actions. The Court will therefore rely on the evidence presented by the court examiner and interim guardian and draw an adverse inference from Mr. Jones' refusal to answer any questions regarding the two mortgages.
Initially, it is noted that there was no Court authorization for either of the two
*13mortgages at issue. While the order appointing Mr. Jones is silent with respect to obtaining prior court approval for this type of investment, it is a common and prudent practice in guardianship cases to seek prior court approval before disbursing large portions of the incapacitated person's assets. Guardians have always sought prior court approval for the purchase or sale of real property and automobiles. Mr. Jones has never offered any explanation for his egregious departure from standard practice in regard to the two mortgages. Instead, he relies on a paragraph of the order and judgment citing to the Prudent Investor Act. As discussed in more detail below, the Court finds that this reliance cannot be justified by his conduct. The Court fails to see how these transactions differ from any other large purchase utilizing guardianship assets, especially when the transaction gives the guardianship an interest in real property.
Mr. Jones also departed from standard practice by using the services of an appraiser without prior court approval in violation of Part 36 of the Rules of the Chief Judge. As a court appointed guardian [§22 NYCRR 36.1[a]], Mr. Jones' unauthorized use of an appraiser violates §22 NYCRR 36.1[a]. "When a guardian…subject to the provisions of Part 36 seeks to retain counsel, or an accountant, appraiser, auctioneer, property manager or real estate broker, the retained professional becomes a Part 36 appointee." Id. The guardian…must request that the judge appoint such a professional…and the professional must comply with all the provisions of Part 36…". [Part 36 of the Rules of the Chief Judge: An Explanatory Note.] In this case, the parties who performed the appraisal and signed the report constitute a secondary appointment. However, they were neither appointed by the Court nor even candidates for such appointment on the Part 36 list. Since Mr. Jones failed to make a prior application, the Court was deprived of any
*14meaningful opportunity to appoint an appraiser of its choosing and obtain a neutral assessment of the value of the two parcels of property in question. The Court will evaluate each mortgage transaction separately, taking into consideration the failure to obtain Court authorization for each transaction individually and the failure to obtain approval for a Court appointed appraiser.
1295 Sterling Place—Accounting Discrepancies
The Court has reviewed Mr. Jones' filed accountings and his response to Mr. Coen's preliminary report filed with the Court during these hearings and found several discrepancies regarding the mortgage payments received. The earlier individual accountings were all filed after the close of the calendar year and should be complete through the end of the reporting year. The later response shows additional payments and a re—characterization of payments received that are inconsistent with the chronology of events. In light of his unwillingness to testify and explain these inconsistencies, the Court finds that Mr. Jones' written responses to the court examiner are questionable, self-serving and most likely an attempt to mislead the Court.
It is clear that the first year of interest payments for 1295 Sterling Place were prepaid through November 29, 2007. This was not an actual payment received from Ms. Barrett but rather an amount reduced from the total payout. [Transcript dated December 22, 2010 P 40, L 3-6.] It appears that no payments of any sort were received for December 2007 or the entire 2008 calendar year. In fact, it does not appear that any other payments were received until sometime in early 2009. According to the 2009 accounting, an amount was purportedly received for interest payments past due at 9 percent for the period of January 1, 2008 through January 31, 2009 (13 months) totaling fifty one thousand one
*15hundred eighty seven dollars and fifty cents ($51,187.50). A later interest payment of three thousand nine hundred seventy three dollars and fifty cents ($3,973.50) was received for the month of February 2009. Based on the individual 2008 and 2009 accountings, it would appear the mortgagor skipped a payment for the month of December 2007.
Later in his written response to the court examiner, Mr. Jones adds an extra payment of three thousand nine hundred seventy three dollars and fifty cents ($3,937.50) at the original 9 percent interest rate without any indication of when the payment was received or what month it should be credited. The Court finds this re-statement rather puzzling. Since all of the individual accountings were filed after the close of each accounting period, there is no reasonable explanation for its omission in any of the earlier accountings.
Another example of inconsistent reporting occurs after the parties agreed to lower the interest rate. Notwithstanding the terms of the agreement that regular monthly payments were to start on April 1, 2009, Mr. Jones' earlier accounting makes no indication that any other payments were received after March 2009. In contradiction, Mr. Jones' response to the court examiner now attempts to fill in missing information and shows that multiple payments at 7 percent interest were received starting March 1, 2009 through May 2010, totaling forty five thousand nine hundred thirty seven dollars and fifty cents ($45,937.50.) If there were actual payments, they were made contrary to the terms of the modification agreement which states that the lower payments were to commence on April 1, 2009. Based on the terms of the contract, an incorrect payment was received and an additional amount of eight hundred seventy five dollars ($875.00) is due to the guardianship as the remaining balance of the March 2009 interest payment.
1295 Sterling Place—Investment
*16In turning to Mr. Jones' investment in the mortgage itself, the Court finds Mr. Jones' conduct and statements inconsistent with the prudent investor standard. According to Mr. Jones' accounting, Josephine R. had approximately $1.3 million dollars in December 2005. Rather than invest the surplus in securities, Mr. Jones chose to loan over 40 percent of the principal to 1295 Sterling Place, LLC. In light of the extremely favorable financial position of the guardianship after the lump sum payment from the settlement, the current court examiner questioned the suitability of this loan as an investment.
In his response to the court examiner's preliminary report, Mr. Jones contends that his investment decisions are protected under the prudent investor standard pursuant to EPTL §11-2.3. Specifically, he contends that the loan made to 1295 Sterling Place, LLC. was prudent based on speculation that the 9 percent interest he obtained would outperform the market. To support his position, Mr. Jones uses general references to approximate interest rates paid on money market accounts and levels of the Dow Jones Industrial Average in 2006 and June 2010. His response lacks any research or real comparison to specific types of investments or financial products that could have been considered before making the current investment in question.
Mr. Jones also cites Matter of Atkinson, with emphasis that prudence is tested based upon conduct leading to the investment, not performance of the investment itself. In Atkinson, the court disagreed with residuary beneficiaries who contended that the co-executors' premature sale of securities was imprudent. 148 AD2d 839 [3d Dept., 1989]. Although the beneficiaries disagreed with the investment decision, "the record shows that it was taken after consultation with the bank's trust committee and was considered a vehicle for a reasonable return on the funds without being unduly speculative". Id.
*17Far from Mr. Jones' contentions, this Court's analysis is not based upon the performance of this investment, it is based upon the factors that Mr. Jones should have considered before making the investment, but ignored. The prudent investor standard sets forth very specific factors the fiduciary must consider in EPTL §11-2.3(b). In addition, EPTL §11-2.3(c) specifically directs diversification of assets unless the fiduciary reasonably determines that it is in the best interests of the beneficiaries not to diversify. Mr. Jones' reliance on Atkinson is unsupported by his own actions and does not parallel the circumstances described in that case.
According to the most recent accountings, the overall portfolios consist of just two mortgages. Mr. Jones failed to articulate any of the factors which led him to the mortgage investment and makes no attempt to explain why he concentrated such a large portion of guardianship assets in a single investment vehicle. Mr. Jones is completely silent regarding any other types of investments he might have considered or whether he consulted any financial professionals.
While Article 81 requires Mr. Jones to exercise the utmost care and diligence, at no point can Mr. Jones show that he performed any investigation of the borrower's credit worthiness as part of his understanding of this investment. Even though there was no prior mortgage on 1295 Sterling Place, Ms. Barrett was still not able to obtain conventional financing secured by this particular piece of property. During the hearing, Ms. Barrett testified that the combination of her less than perfect credit rating and substantial debt made it difficult to obtain a loan through conventional lenders and she finally resorted to private lenders. [Transcript dated December 22, 2010 P 21, L 17 through P 22 L 21.]
These facts were known to Mr. Jones and were not withheld from him at the time of
*18the loan, yet he did not seek any further investigation. Ms. Barrett was not required to submit a financial statement. There was no formal application process or credit check. Although she personally guaranteed the mortgage, Ms. Barrett's assets were so heavily mortgaged that it is unclear whether she had the ability to repay this loan. Based on the transactions of February 27, 2009, it is clear that Ms. Barrett had to draw an additional sixty thousand dollars ($60,000.00) of equity from 1295 Sterling Place in order to pay the past due interest payments of the previous year. None of these issues are even addressed in Mr. Jones' responses. Mr. Jones failed to show any due diligence in regards to his consideration of this investment.
Mr. Jones' reliance on the fact that Josephine R.'s expenses do not exceed her income as a reason for this investment is disingenuous. In his written response to the court examiner's preliminary report, Mr. Jones states that the incapacitated person would not need her surplus assets. The simple calculation that her monthly income exceeds her monthly disbursements is not a standard used to evaluate suitability of an investment. A guardianship is not required to spend all of its yearly income and assets. The Court finds Mr. Jones' reasoning contradicts the duty of an Article 81 guardian to protect the assets of the incapacitated person. This reasoning would permit any guardian to invest without regard to risk and would have a corrosive effect on any guardianship holding substantial assets. The Court cannot condone such action.
Assuming arguendo that the mortgage was a prudent investment, Mr. Jones failed to protect his ward's income. As guardian of the property, Mr. Jones is charged with marshaling the assets and income of the guardianship. However, Mr. Jones violated his fiduciary duty in his failure to collect a known income stream owed to the guardianship.
*19Based on the lack of payments in 2008 alone, Mr. Jones failed to collect over fifty thousand dollars ($50,000.00) of income due. There is no evidence of demand for payment, and no payments were made until more than one year after the prepayment period expired. Even if the expected 9 percent return outperformed the market, its benefits were defeated with every missing payment.
This Court also finds that the modification agreement of decreased interest runs contrary to the best interests of the guardianship. Despite the borrower's history of late payments the applicable interest rate was decreased from 9 percent to 7 percent. According to Ms. Barrett's testimony, there was no consideration in exchange for the decreased interest rate. Ms. Barrett simply requested it based on the average rate prevalent at the time. [Transcript dated December 22, 2010 P 55, L 16-23.] It is difficult to believe that the Josephine R. guardianship benefits from the decreased interest income since the modification deprives his ward of eight hundred seventy five dollars ($875.00) of interest payments per month. Given this fact, Mr. Jones fails to provide any basis or rationale for this agreement. Although he states in his written response that the lower interest rate was contemplated at the time of the initial agreement, it is not embodied in the mortgage, the rider, or any other contemporaneously executed document.
Based upon these factors, the Court finds that Mr. Jones abused his discretion in entering into this mortgage agreement and failed to exercise due diligence in committing guardianship assets to this investment. The guardianship assets were not diversified, nor was there any attempt to investigate any other type of investment. At this juncture, the entire portfolio consisted of just cash and this mortgage. There was no overall investment strategy. Mr. Jones was not limited to his own knowledge of investment strategies. EPTL
*20§11-2.4(c) permits a fiduciary to delegate investment and management functions to a third party. As such, there is no reasonable basis for nearly half of the guardianship assets to be invested in this property alone. Coupled with his later failure to collect interest income for over a year, Mr. Jones' conduct ultimately leading to this investment lacks any of the qualities that would be protected under the Prudent Investment Act.
In evaluating whether to vacate this mortgage, the Court is aware of the previous delinquencies in payments and the questionable modification of interest rates. However, during the course of the hearings, the Court also learned that the loan is now current. Since the hearings, the mortgagor has prepaid all interest through February 2012, pursuant to the modification agreement. The interim guardian has also informed the Court that Ms. Barrett has made efforts to make payments towards the principal. Ms. Barrett has made good faith efforts upon an agreement she thought was valid. Based upon these factors, the Court will not disturb this mortgage. Vacating the mortgage at this stage would cause the guardianship to incur further expense and possible litigation. Although the investment itself is not prudent, a successor guardian shall have the opportunity to evaluate the loan pursuant to the modification agreement when the lump sum payment is due in February 2012. See Matter of Hahn, 93 AD2d 583 [4 Dept, 1983].
60/64A Clifton Place
Mr. Jones' 2007 accounting reflects the 64A Clifton Place transaction as a single lump sum of six hundred fifty thousand dollars ($650,000.00), withdrawn from the guardianship account held at Signature Bank. Since Mr. Jones did not produce a closing statement or any supporting documents related to this transaction, the court examiner subpoenaed bank records surrounding this withdrawal. The bank records show that
*21instead of drawing several certified checks directly from the guardianship account, Mr. Jones withdrew the entire sum as a single transaction. In doing so, Mr. Jones attempted to conceal the identity of the payees and the amounts they received. The six hundred fifty thousand dollars ($650,000.00) was divided into seven bank checks drawn from Signature Bank on April 10, 2007. [Court Examiner's Exhibit 23, A through G.] The first group consists of four consecutive checks starting with check #34802243 through #34802246. The second group consists of three consecutive checks starting with check #348302250 through #348302252.
Although Mr. Jones would have this Court believe that Ms. Watkins prepaid interest for one year, the evidence shows that Ms. Watkins did not actually make a payment; the interest payment was simply deducted from the total principal. In the series of checks mentioned above, the first check, #34802243, was made payable to Josephine R. in the amount of fifty eight thousand five hundred dollars ($58,500.00), representing the prepayment of interest for the first year. The check was endorsed by Ray Jones and deposited back into the guardianship account the next day. This transaction is reflected in his accounting as income even though the same guardianship account was the original source of the check.
The last check, #348302252, was made payable to Keri Watkins in the amount of four hundred twenty one thousand four hundred seventy seven dollars and forty six cents ($421,477.46), representing the balance minus the first year's interest of fifty eight thousand five hundred dollars ($58,500.00), two checks totaling one hundred forty eight thousand eight hundred seven dollars and fifty six cents ($148,807.56) to Mr. Barnett, and twenty one thousand two hundred fourteen dollars and ninety eight cents ($21,214.98) in
*22fees. Mr. Jones failed to provide any written explanation for these disbursements and when presented with copies of these checks refused to respond in any substantive manner.
On or about September 27, 2010, Ms. Watkins attempted to make a payment from her 60 Clifton Place business account in the amount of seventy eight thousand five hundred forty two dollars ($78,542.00) to Ms. Redlisky, the interim guardian. This check was later returned for insufficient funds. [Court Examiner's Exhibit 28]. Other than the fifty eight thousand five hundred dollars ($58,500.00), no other payments are reflected in any subsequent accountings or responses to the Court, nor does Mr. Jones allege that any have been collected. Mr. Jones' failure to enforce the terms of the mortgage agreement is a violation of his duty to marshal the income due to his ward. Any argument supporting the intended benefits of a 9 percent rate of return was negated with every subsequent failure to collect payments.
Also consistent with the prior transaction is the modification agreement reducing the interest from 9 percent. In this case, Mr. Jones agreed to reduce the interest to an even lower rate of 5 percent. This document was allegedly executed just two months prior to a court ordered appearance. Prior to the reassignment of this case to this Court, Hon. Loren Baily-Schiffman issued two orders in April 2010. The first was an order dated April 20, 2010, restricting the guardians from transferring or withdrawing funds in excess of five thousand dollars ($5,000.00) without prior court approval. The second dated April 29, 2010, was a compliance order directing the guardians to appear on June 4, 2010, with supporting documentation pertaining to accountings for the years 2003 through 2007.
Although the modification agreement is dated April 10, 2010, Ms. Watkins' signature
*23is not notarized until May 15, 2010 and Mr. Jones' signature is not notarized until June 22, 2010. The alleged date of the agreement coincides with the anniversary date of the mortgage but both signatures were notarized well after the April 10, 2010 order restricting expenditures and the April 29, 2010 compliance order. At the June 4 and June 23, 2010 appearances Mr. Jones withheld information of this document from the Court since it was not yet recorded and did not appear on the Automated City Register Information System [ACRIS]. At the hearings held in November 2010, neither Mr. Jones nor Ms. Watkins would testify to the circumstances which led to the execution of this agreement. The Court therefore has no choice but to assume that the modification was executed in direct reaction to the two orders issued in April. It was a deliberate attempt to deceive and mislead the Court, the court examiner and the interim guardian and reduce Ms. Watkin's liability before anyone had an opportunity to inquire with a complete understanding of the case.
Assuming arguendo that the modification agreement was a valid contract, Mr. Jones breached his duty of loyalty by intentionally depriving his ward of guaranteed income at the higher contractually obligated rate. At the execution of the modification agreement, interest payments were already unpaid for one year and there was no attempt to bring the loan current. To date, the guardianship has not received a single payment from Ms. Watkins and she is now rewarded with an even lower interest rate. She was not subject to penalty fees and there was no attempt to accelerate the loan or foreclose on the property. It is clear that Ms. Watkins was the only one to receive any obvious benefit.
Mr. Jones' written response indicates that the parties agreed to a reduction of interest for "9 percent for the first year; 7 percent and 5 percent, respectively, thereafter for one to three years." [Ray Jones' Response to Preliminary Report of Successor Court Examiner P.
*24RJ0050.] Again, there are no contemporaneously executed documents to even suggest that this was the agreement contemplated by the parties. If this statement were actually the case, the guardianship is owed at least one year of interest at 7 percent. Mr. Jones did not even reduce the rate to 7 percent as he alleged was the understanding between the parties. Instead he arbitrarily chose the lowest possible rate resulting in a two thousand one hundred sixteen dollars and sixty seven cent ($2,116.67) reduction per month.
To support his position that the investment in 64A Clifton Place was a prudent investment, Mr. Jones submitted an appraisal dated April 4, 2007 valuing the property at nine hundred twenty five thousand dollar ($925,000.00). When comparing this appraisal and the two earlier appraisals from the Lucille S. guardianship, the Court notes that all three reports indicate that the property being assessed is 60 Clifton Place, not 64A Clifton Place. As noted in an earlier footnote, this mistake seems to run consistently through all documents relating to the subject property. However, the Court will accept the 2002 and 2004 appraisals as they were reports accepted by the previous court and the property actually transferred between the Lucille S. guardianship and Keri Watkins was in fact 64A Clifton Place. The Court also accepts the 2007 appraisal for the limited purpose that the report correctly identified 64A Clifton Place by its block and lot number.
In turning to the substance of these three reports, it is troubling to note that the two previous appraisal reports indicate that the property was already in poor condition as early as 2002. In the third and latest report submitted by Mr. Jones, the appraisal goes into greater detail and describes the property as "an exterior shell with a compromised roof, no windows and some interior sub-flooring". According to the same appraisal, the subject property had no interior and was therefore not habitable. Given the unchanged condition
*25of the property over this prolonged period of time, the Court rejects the 2007 appraisal and the notion that the value of the property almost tripled from three hundred fifty thousand dollars ($350,000.00) in 2004 to nine hundred twenty five thousand dollars ($925,000.00) in 2007 without any repair. Furthermore, given that all of the appraisals consistently report the poor condition of the property, Mr. Jones fails to provide any explanation to support why this property was worth investing in at all. This mortgage was essentially secured by a parcel of property that was worth a fraction of the amount of the loan.
Excluding the appraisal, Mr. Jones has not offered any evidence to establish that he performed any other type of research or investigation related to this questionable investment. It is clear to this Court that Mr. Jones failed to perform any due diligence in making this investment. As with the Sterling Place transaction, Mr. Jones failed to investigate the creditworthiness of Ms. Watkins. In making this investment decision, it also appears that Mr. Jones did not consider that there was an already existing mortgage on the property for six hundred thousand dollars ($600,000.00). He did not even inquire whether that loan was current. Although a subordination agreement was purportedly executed in favor of the guardianship of Josephine R., Mr. Jones seems to ignore the fact that the total equity drawn from 64A Clifton Place would amount to one million two hundred fifty thousand dollars ($1,250,000.00), excluding interest. In light of these existing facts, he failed to explain why he loaned Ms. Watkins a mortgage of six hundred fifty thousand dollars ($650,000.00), an amount in excess of 150 percent of the known purchase price.
Moreover, with this second loan, over 75 percent of the guardianship assets were exclusively invested in just two real estate mortgages. This investment directly contravenes the requirement to diversify assets in accordance with EPTL §11-2.3(b)(3)( c). Mr. Jones
*26fails to offer any reasonable explanation for this highly unusual concentration of investments. Based upon the total portfolio of two investments, it is clear that Mr. Jones' poor judgment resulted in unnecessary risk to the guardianship assets.
In evaluating whether to set aside this transaction and surcharge Mr. Jones, the Court finds the circumstances surrounding this investment even more suspect than the previous investment in 1295 Sterling Place. A review of the April 10, 2007 mortgage reveals that it was executed and recorded as an agreement between Keri Watkins and Josephine R. as mortgagee, not the Josephine R. guardianship. Likewise, the subordination agreement is between Ezekiel Barnett and Josephine R. individually. Accordingly, Josephine R. would be personally liable for the terms of both agreements. During his testimony, Mr. Barnett was presented with the subordination agreement and did not recognize the signature to be his own. [Transcript dated November 23, 2010 P 219, L 9 through L 19.] He did not recall ever executing such a document. He also denied whether he knew Keri Watkins or Miko N. Simmons, the notary of his signature and Mr. Jones' wife. In light of Mr. Barnett's sworn testimony, it is questionable whether the subordination agreement is valid and whether the subsequently recorded mortgage would be subordinate to Mr. Barnett's first mortgage.
The facts surrounding this particular transaction also reveal a network of relationships which clearly indicate several undisclosed conflicts of interest. Not only did Mr. Jones have prior knowledge of the condition and depreciated value of 64A Clifton Place, he was involved in the transaction to sell it to Ms. Watkins. As the court appointed broker in the guardianship of Lucille S., Mr. Jones had knowledge of the details contained in previously court ordered appraisals. He knew the property was previously appraised at
*27three hundred fifty thousand dollars ($350,000.00) and was sold to Ms. Watkins for four hundred twenty five thousand dollars ($425,000.00), as this was completed with his supervision. With the simultaneous execution of the correction mortgage, subordination agreement and the mortgage with Josephine R., there can be no question that Mr. Jones also knew of the preexisting six hundred thousand dollar ($600,000.00) mortgage with Ezekiel Barnett.
Mr. Jones relied on the fact that each guardianship is managed as a discrete individual case and each handled by a different judge. Since he did not seek any court approval for this transaction, he purposefully avoided any opportunity for this Court to evaluate any of his previous involvement. There can also be no question that Mr. Jones entered into the mortgage knowing that the appraisals over-inflated the value of the property to such an extent that it did not reflect the true condition of the property itself. Having been involved in so many aspects related to the transfer and financing of this property, Mr. Jones sought to further his own interest by earning multiple commissions on the same property.
Facts contained in a recent decision by Hon. Betsy Barros, reveal that Mr. Jones also had an undisclosed prior relationship with Ezekiel Barnett. In re Jones, 31 Misc3d, 1205 (A) [Kings County Supreme Court, 2001]. Mr. Barnett was the original intended purchaser of the property held by the guardianship of Mary Dicks wherein Mr. Jones served as the guardian ad litem, attorney for the conservator in this transaction and ultimately the successful purchaser as co-guardian/trustee of the Roy L. guardianship. Mr. Jones later hired Mr. Barnett as a contractor for renovations to the same property in May 2000. The court found that Mr. Jones improperly paid Mr. Barnett one hundred thousand dollars
*28($100,000.00) for renovations that were never successfully completed. Judge Barros also found that it was improper for Mr. Jones to rent an apartment from Mr. Barnett on behalf of the incapacitated person and his mother during the course of renovations.
In the case at bar, Mr. Barnett was not only the first mortgagee of 64A Clifton Place, he also testified that he was previously represented by Mr. Jones in the purchase of an unrelated piece of property in 2000, presumably the property mentioned in the above paragraph. [Transcript dated November 23, 2010 P 229, L 9 through L 18]. Mr. Barnett did not mention that Mr. Jones hired him as a contractor and later paid him rent on behalf of another incapacitated person. But for the publication of Judge Barros' findings and decision, this Court would not have known, nor would Mr. Jones have disclosed, the extensive nature of their business relationship.
In addition to his marriage to Miko N. Simmons, a business relationship also existed between Keri Watkins and Ms. Simmons. Both Ms. Watkins and Ms. Simmons were subpoenaed to testify before this Court on November 22, 2010. Both witnesses identified themselves and provided their current addresses. Ms. Simmons testified that she is currently married to Mr. Jones. Both witnesses asserted their Fifth Amendment right to remain silent to most questions. The Court will therefore draw a negative inference from their failure to answer questions under oath.
Two days after the six hundred fifty thousand dollar ($650,000.00) mortgage to Keri Watkins, another series of transactions occurred between Ms. Watkins and Ms. Simmons. During the hearing, the successor court examiner and the interim guardian produced evidence that Keri Watkins gave a two hundred thousand dollar ($200,000.00) mortgage to Miko N. Simmons on April 12, 2007. [Court Examiner's Exhibit 25.] This mortgage was
*29recorded for the property known as 1142 Dean Street, the location once owned by Mr. Jones, later transferred to his wife [Court Examiner's Exhibit 26.], and his current business address. Subpoenaed bank statements and checks reveal that on the same date, Ms. Watkins purchased a bank check in the amount of two hundred thousand dollars ($200,000.00) made payable to Chase Bank. [Interim Guardian's Exhibit H.] This check was used to pay off a home equity line of credit established in the name of Miko N. Simmons Jones, on April 13, 2007. [Court Examiner's Exhibit 30.] Even to a casual observer this would appear to be an indirect kick-back to Mr. Jones through his spouse.
A second series of transactions occurred just after the interim guardian issued a demand for interest payments due to the guardianship. Approximately two months after this Court suspended Mr. Jones, Ms. Simmons wrote a ninety thousand dollar ($90,000.00) check to Keri Watkins' business account, 60 Clifton Place, LLC., dated September 25, 2010. [Court Examiner's Exhibit 27A.] Ms. Simmons' check was deposited and later returned for insufficient funds on September 30, 2010. [Interim Guardian's Exhibit D.] This directly resulted in the return of Ms. Watkins' check of seventy eight thousand five hundred forty two dollar ($78,542.00) on October 5, 2010. [Court Examiner's Exhibit 28.] Though Ms. Watkins indicated that a "replacement check" would be issued, the interim guardian received no further payments. One can only conclude that the attempted transfer of funds between Ms. Simmons and Ms. Watkins was another deliberate attempt to mask the kick-back originally received in April 2007.
Monitoring this case within the narrow confines of this guardianship alone, the Court might have only concluded that this was an imprudent investment. However, further scrutiny reveals that the parties only made an investment in this property on paper. Unlike
*30the 1295 Sterling Place mortgage, this investment appears to be a scheme to extract the maximum amount of equity from an uninhabitable piece of property and further profit by churning fees and commissions and hyper-inflating the value of 64A Clifton Place. In addition to commissions already awarded as broker in the Lucille S. guardianship, Mr. Jones would have received commissions based upon the income and disbursements in this guardianship pursuant to SCPA §2307. The commissions would have also been calculated on a larger than necessary disbursement based on an over-inflated valuation of the property.
Mr. Jones' actions show that he was fully aware of his flagrant transgressions as evidenced by the attempt to make this appear like a legitimate transaction. The evidence portrays a pattern of unconscionable conduct and self-dealing to advance his own financial interests and personal profit. In fact, Mr. Jones indirectly benefitted from the payoff of his wife's debt. There has never been a showing of a bona fide attempt to collect any amounts owed to the guardianship. There is substantial evidence to support the fact that the total cash investment in this property is far greater than its actual value, even at the time the investment was made. There is further evidence to suggest that 64A Clifton Place has gone without maintenance and repair since Ms. Watkins' purchase and the investment is therefore a waste of guardianship assets. The Court cannot justifiably permit the guardianship or Josephine R., personally, to absorb the loss on the remote possibility that any payments are forthcoming or that the mortgage agreement supercedes any previous interest on 64A Clifton Place. As such, the April 10, 2007 mortgage agreement and the April 10, 2010 modification agreement are therefore vacated.
*31Based on the above findings, the Court finds that Mr. Jones shall be surcharged the amount of six hundred fifty thousand dollars ($650,000.00) at 9 percent interest pursuant to CPLR §5004. Interest shall be computed from April 10, 2007, the date the mortgage for 64A Clifton Place was executed and the funds transferred. CPLR §5001.
ORDERED and ADJUDGED, that the mortgage dated April 10, 2007, between Keri Waktins and Josephine R. for the amount of six hundred fifty thousand dollars ($650,000.00) is hereby vacated, and it is
ORDERED and ADJUDGED, that the consolidation, extension, and modification agreement dated April 10, 2010, between Keri Watkins and Josephine R. Guardianship, Ray Jones as guardian, decreasing the interest rate from 9 percent to 5 percent is hereby vacated; and it is
ORDERED and ADJUDGED, that Ray Jones shall pay the amount of six hundred fifty thousand dollars ($650.000.00) as and for his surcharge plus interest calculated at 9 percent from April 10, 2007; and it is
ORDERED and ADJUDGED, that the successor court examiner Seth Coen is hereby directed to review the 2003 through 2007 accountings submitted by Ray Jones; and it is
ORDERED and ADJUDGED, that Ray Jones, Esq., Linda Redlisky, Esq., Seth Coen, Esq., and William Mait, Esq. shall appear on August 5, 2011 at 10:00 A.M. for a further hearing on the 2003 through 2007 accountings.
This constitutes the decision and order of the Court.
1. Despite all indications from the court record that Lucille S. owned 60 Clifton Place, a review of the website of the Office of the City Register reveals that Lucille S. never had title to 60 Clifton Place (BBL 1952/5). Title remains with a third party not related to this proceeding. There are no documents recorded under Block 1952, Lot 5 (60 Clifton Place) which reference any of the parties mentioned in this decision.
2. In a report by the same appraiser dated October 2, 2002, the property was valued at one hundred forty thousand dollars ($140,000.00) with a 40 percent adjustment reflecting the poor condition of the property.