(Photo: John Disney/ALM)

Nathan Hardwick IV’s ex-law partner, Mark Wittstadt, returned to the stand on Wednesday to tell the jury there was no legitimate way Hardwick could have taken $26 million out of their now-defunct residential real estate closing firm over three-and-a-half years without it going bankrupt.

Hardwick had unexpectedly taken the stand himself on Tuesday as the defense’s final witness, for a full day of direct testimony conducted by his attorney, Ed Garland. Closing arguments are scheduled for Thursday morning after 12 days of testimony.

Nathan Hardwick, Atlanta Nathan Hardwick.

Wittstadt appeared Wednesday afternoon after Hardwick’s cross-examination as the government’s sole rebuttal witness. He kept things simple for the jury, which has appeared confused at many points during testimony in the complicated, document-intensive case—particularly when it was about the residential real estate firm’s financials, accounting and tax reporting.

There was no way Morris Hardwick Schneider could have afforded to pay out $26 million to Hardwick over the three-and-a-half years in question, Wittstadt told Assistant U.S. Attorney Lynsey Barron, even if it came out of cash available in the operating accounts instead of Hardwick’s profit distributions alone from net income.

“We could never have been able to distribute that. We would have gone bankrupt,” Wittstadt said.

The $26 Million

The government has accused Hardwick of embezzling $26 million from his now-defunct residential real estate firm, Morris Hardwick Schneider, from 2011 to August 2014, when escrow account shortfalls came to light. The firm went bankrupt 11 months later.

That included $19.5 million from the IOLTA accounts, Assistant U.S. Attorney J. Russell Phillips told the jury when he cross-examined Hardwick on Wednesday.

To drive home the point that the $26 million Hardwick took from the firm was all for his personal use, Phillips hefted three giant binders of spending documentation for private jets, casinos and female social companions, respectively, and set them before Hardwick on the witness stand.

Hardwick, who owned 55 percent of MHS, ran the Atlanta-based closing operation, while Mark Wittstadt and his brother Gerard, who owned 22.2 percent apiece, ran the separate default operation from Baltimore.

Hardwick is charged with 23 counts of wire fraud, wire fraud conspiracy and making false statements to lenders.

Prosecutors indicted the closing operation’s former controller, Asha Maurya, as a co-conspirator, alleging that Hardwick directed her to wire millions of dollars from MHS’s escrow and operating accounts to pay his personal bills.

Maurya, who has admitted to stealing almost $900,000 from MHS, pleaded guilty to a single count of wire fraud last year and is cooperating with the government, but prosecutors did not put her on the stand. Hardwick’s lawyers at Garland, Samuel & Loeb have maintained that she was the sole culprit for MHS’s almost $30 million in escrow shortfalls, not their client.

Distributions or Theft?

The government alleges that Hardwick knowingly took too much money from MHS and that he knew it came from the escrow accounts.

The defense has stirred up some confusion over what monies MHS’s equity partners could legitimately take from the firm by using the term “distributions” to mean any money (other than salary and expense reimbursements) that MHS paid out to its equity partners—not solely profit distributions from the firm’s net income.

Hardwick told the jury on Tuesday that MHS’s owners could receive distributions as long as the firm had enough cash available in its operating accounts to cover them and the other owners received their proportionate share. He added that his $26 million from MHS came from distributions that Maurya, the former controller, told him the firm could afford.

During Hardwick’s testimony, Garland showed the jury daily summaries of MHS’s operating account balances to demonstrate the firm had several million dollars in available cash for the dates of Hardwick’s 20 withdrawals of $100,000 to $500,000 that triggered the federal wire fraud charges.

But Wittstadt told the jury that there’s a big difference between a firm’s available operating cash and income that can be paid out to the shareholders. “When you run a business it’s not what you have in your checking account that’s important,” he said.

What’s more, MHS did not make enough in net income to cover $26 million in profit distributions to Hardwick, Wittstadt said, much less to distribute proportionate sums, per the shareholder agreement, to the other equity partners, who collectively owned about 50 percent of the firm—for a total of roughly $50 million.

The firm’s net income from 2011 to 2013 was about $10 million, according to its audited financial statements.

Any distributions to partners “above and beyond our salary were covered in the shareholder agreement,” Wittstadt added. “We had no ability to take money other than what the firm made.”

Escrow Hole

Forensic accountant J.P. Gingras, an expert witness for the defense, told jurors last week that the $26 million to Hardwick received was his own money that he was entitled to as a 55 percent owner of the firm.

Gingras also told the jury there actually weren’t any escrow shortfalls, because the firm’s 2014 tax return showed only $4.7 million in losses—not a big enough hole to be from depleted escrow accounts at a real estate closing firm where hundreds of millions in mortgage money flowed through the IOLTA accounts.

MHS’s main title insurer, Fidelity National Title, spent almost $30 million to fill the IOLTA hole in exchange for ownership of its sister title company, LandCastle Title.

The firm’s 2014 tax return “does not mention the hole that Fidelity plugged,” Barron said to Wittstadt on Wednesday. “Does that mean the hole didn’t exist?”

“The hole 100-percent existed,” Wittstadt heatedly attested, adding that he worked with accounting firm Bennett Thrasher to prepare the tax return.

Garland suggested on his redirect that the “hole” in MHS’s funds was created by the firm “living out of that escrow account,” a reference to the tens of millions in payroll that Maurya paid through an IOLTA wire account over the charged period—not from the $26 million that went to Hardwick.

“No, the hole was created by Mr. Hardwick living out of that escrow account,” Wittstadt replied. “You and I agree on one thing, Mr. Garland. That escrow account was a mess.”

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