On a number of questions during the second part of my deposition, I was instructed by our attorney to assert my Fifth Amendment privilege of not providing personal testimony that could be used in the prosecution of a criminal charge against me. This is commonly known as “pleading the Fifth”, and that matter requires explanation here.
One of the baseless and ultimately unproven allegations by the Indiana Office of the Attorney General (OAG) was that Mary Lou Trautwien-Lamkin and I had violated the “Home Loan Practices Act”, or more specifically, the statutes listed under IC 24-9-3 for “Prohibited Lending Practices Generally”. See again the Plaintiffs’ allegation on p. 36 of the Complaint under “Count II” (¶ 259). Note that this statutory language is written in the context of the mortgage creation market in Indiana–originators, underwriters, and processors working in that line of business. Fannie Mae is a federal entity, and Indiana law is not written to police the conduct of cash buyers of their repossessed properties.
The alleged violation stemmed from our signing an owner occupancy affidavit in conjunction with the purchase of condominium 1104 from Fannie Mae in a sealed bid auction. Originally, I signed the affidavit as the purchaser. Eventually Ms. Trautwein-Lamkin did when she decided to buy and reside in the condominium—which she still does today. Several offers were submitted by us while Fannie Mae kept evaluating and repricing that condo and the competitive bids. There was actually one contract that included both of our names and for which we signed the same affidavit. This was during a brief time in which Ms. Trautwein-Lamkin was deciding whether or not to buy the condo as her residence. Both of our signatures on the paperwork covered either outcome of her decision.
The OAG inaccurately assumed that both of us signing the same affidavit was our promise to cohabitate the property. While that particular contract was not accepted by Fannie Mae, an attempt to conceal anything relevant on the owner occupancy affidavit is a violation of law and subject to criminal prosecution. (Our attorney said that charge carries with it a misdemeanor penalty–the basis of exercising a Fifth Amendment privilege–and a maximum $10,000 fine.) What the OAG wasn’t aware of when the lawsuit was filed is that individuals may cosign the same affidavit without all of them intending to cohabitate, as long as one of the parties fulfills the terms of the affidavit which Ms. Trautwein-Lamkin always has. The OAG tried to sue the Defendants over a transaction that was lawful.*
This type of flawed analysis on the OAG’s part undoubtedly fed their decision to later settle the lawsuit for what amounted to nuisance charges. Also, there was no mortgage on condominium 1104 at the time of purchase or to finance the purchase, which calls into serious question the OAG’s use of statutes related to “prohibited lending practices” to file suit. There were no “lenders” involved in the Defendants’ purchase of condo 1104 because it was an all-cash purchase.
* The program administered by Fannie Mae to sell off repossessed properties is known as “Homepath”. Here is a document that was furnished by a real estate professional detailing the owner occupancy considerations which are part of the program. Note esp. the highlighted text:
“In a co-purchaser situation, as long as one buyer is occupying, then the sale is eligible as an owner occupant sale. The occupying buyer must be a ‘natural’ person and excludes corporations, trusts, LLC’s, etc. The occupying buyer must sign the Owner Occupation Certification form and all buyers must be on the contract, mortgage (if applicable) and deed. The non-occupying buyer may be an individual or a company.
Note: Owning another property does not automatically make a buyer an investor…”
You can find other Fannie Mae references online that show the same criteria for determining owner occupancy. This link contains one such example clarifying the situation when multiple parties sign an affidavit to occupy a Fannie Mae property.
Harbours Lawsuit 
Though at times hesitant, my opinion throughout this attempt at justice was to acknowledge diligent efforts of the OAG, but also to question basic principles used by them to gather facts, i.e. strictly following allegations from Complainants who have proven to be, “unprincipled to the core”. The wheels came off from the start, never touching the ground and leaving no tangible path.
It now appears that a seemingly mighty effort for justice gave-way to a higher calling to deliver a , “landmark case.” Instead, a glorified decision vanished and the OAG was entrapped by its’ own devices.
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