Are you saying that Mr. Berg has agreed to use this Gardner Fox to fix all the problems at the properties built by either New Century Homes or Affordable Homes or --
Right. To be exact, the communication was with Mr. George David, who was acting as president of the company, and he agreed to --
And he agreed to use Gardner Fox as the construction manager to allay our concerns over any possible workmanship issues associated with the new project at 20th and Geary.
You lost me a little bit. You talked to Mr. David about some concerns you had because of your learning of Mr. Berg's possible involvement and then unclear statements about what his level of involvement was. And as a result of that, you're saying that Mr. David then agreed to use this other company, 238 12/14/99 COM. & EC. DEV. - RES. 990859 Gardner Fox?
Right. At the meeting that we held, Mr. Berg and Mr. David both attended. So it was part of the negotiations at that meeting that, number one, we would get a statement on the record that he did not have financial involvement or an officer role with the company; and number two, Gardner Fox would be a suitable construction management firm and would do the actual construction oversight at 20th and Geary.
Okay. But your testimony here today is that it's still unclear to you, in your capacity, I believe, as Deputy Commissioner of L&I?
As to what the nature of the relationship is presently between Mr. Berg and this First Anthony company?
That's correct, Councilman. And in light of documents which he signed, I don't know what to believe.
Gotcha. Miss Kaplan? (Barbara Kaplan comes forward.) 239 12/14/99 COM. & EC. DEV. - RES. 990859
We have a couple of questions for the Records Department before we end this hearing.
Miss Kaplan, good afternoon. Would you identify yourself for the for the record please.
Barbara Kaplan, Executive Director of the City Planning Commission.
Miss Kaplan, I think it's my observation that you've been here most of the time for this hearing, so you've heard some of the testimony back and forth.
Mr. Perry indicated that L&I -- I believe this is a correct characterization -- has put the 20th and Geary project on hold, although they've issued six building permits until they receive a plat. A plan comes from the Planning Commission?
Or what is the Planning Commission's role in this whole process?
Yeah, instead of reading the testimony, I'll just try to summarize it. 240 12/14/99 COM. & EC. DEV. - RES. 990859
You can go through the detail later at your leisure. But basically, there is a subdivision code, as a part of the Philadelphia Code, that regulates the subdivision of land. And its purpose is really to make sure that development that occurs is done in an orderly fashion in accordance with a properly engineered plan. And it's the -- this is prior to the actual construction. It really goes to the engineering of the site, and the relationship of the buildings to the site has to deal with matters such as new streets, the proper placing of those streets, you know, making sure they have the proper lines and grades so that they drain properly, the drainage of the entire site so that water does not run off from one portion of the site into, say, to flood the basements of other houses, or that the water that occurs as a result of runoff from these new properties do not adversely affect other properties that already exist in the neighborhood. We also require, depending on the 241 12/14/99 COM. & EC. DEV. - RES. 990859 circumstances, the developer to present information showing that the site is environmentally clean, that sometimes we require geotechnical studies if we have reason to believe there may be instable soil conditions that require construction techniques. Basically, the process involves the developer presenting a plat or a plan which shows the arrangement of the houses and the streets and the drainage rights-of-way. We review that plan at a staff level, we make a technical evaluation. And if we feel that the basic concept of the plat, you know, makes sense, then we would present that plan at a public meeting, a Planning Commission meeting and request the Planning Commission's approval of that plat. This is a process that really doesn't give the Commission discretion when the staff makes a technical recommendation. The Commission can't say that they will not approve the preliminary plat because the community's opposed to it or because members of the Commission don't like the design of the houses or the type of construction. They really don't have any 242 12/14/99 COM. & EC. DEV. - RES. 990859 discretion. If it's a properly organized and engineered plan, they must approve the plat. Now, very often, at the preliminary plat stage, we attach conditions which must be fulfilled before the final plat is submitted by the staff and approved by the Commission. You can get building permits unless there's a final plat. And the conditions usually relate to more detailed engineering of the basic concepts that are approved in the preliminary plat. For example, we may uncover the fact that as part of the preliminary plat process, that the site might require a detention basin. In order to get the final plat approval, they will have had to meet with the Water Department, and they will actually have to show how they're going to design that detention basin in accordance with standards established by the Water Department. The same thing, if there are placing of new streets on the City Plan, they would have to get an ordinance of City Council to place those streets, and they would have to have the streets confirmed by the Board of Surveyors or the Streets Department before we would take the final plat 243 12/14/99 COM. & EC. DEV. - RES. 990859 back to the Planning Commission. So that the distinction between the preliminary plat and the final plat is basically, the preliminary plat is approving the basic concept for the development, the layout, the streets, etc. The final plat makes sure that it is, in fact, properly engineered according to the standards that have been established. You only get into this plat process when you need to develop new streets. When you're -- if you're building houses on an existing street frontage, then you generally -- you don't get into this whole process.
Well, Miss Kaplan, let me ask you a couple quick questions based on your testimony and then the attachments. For instance, on the first page of the attachments, you have 332 East Walnut Lane.
Not built, site filled in violation of Wissahickon watershed controls zoning violation. Preliminary plat approved. Final engineer plan not submitted for final plat, sold to a another party who has not 244 12/14/99 COM. & EC. DEV. - RES. 990859 proceeded. Board of Surveyors have not confirmed the new streets. What happens with that?
Again, we approve the preliminary plat, which established the basic concept for the development, but the conditions were not fulfilled, so we never brought the final plat to the Commission. No building permits were issued on the basis of -- you can't issue the building permits on the basis of the preliminary plat. In this case, I believe the property was sold to another party, and they had never proceeded either to fulfill the conditions of the preliminary plat or to come back with another development scheme and proceed with a different plat process.
Well, let me ask about another one. I'm assuming that the numbers in the middle of the page mean the number of units that could have been built.
Parker Avenue, I'm sorry. I'm assuming that it was approved for units?
Your chart indicates, homes built, poor site preparation, 8 bulldoze steep slopes to create unstable site conditions, storm water not managed, no homeowner association to maintain the hillside as open space, have been approved with deed restrictions recorded to prevent any construction or earth-moving activity on the hillside. So this is a project that started.
Well, what happens with regard to the eight houses that were and the poor site preparation, the bulldozed steep slopes that have created an unstable site condition? No 21 storm water management. I mean what --
Well, this is an enforcement issue for L&I. This -- the final plat was approved, but the developer did not build according to the plan that was filed. 246 12/14/99 COM. & EC. DEV. - RES. 990859
Councilman, it's my understanding that either all or most of those properties on Parker Avenue were occupied without certificates of occupancy.
We cannot control the settlement process when a developer sells the property to the prospective homeowner. I mean, I don't know how that happens.
I mean, how are people able to move into a house without a certificate of occupancy?
It's not an L&I issue. People can move into houses. If it's done, it's done illegally, and it's a real-estate transaction 247 12/14/99 COM. & EC. DEV. - RES. 990859 that occurs.
It's always the builder's responsibility to make sure that that is secured prior to the transfer of the property to the prospective homeowner.
Mr. Berg, what happened with the COs on the eight Parker Avenue properties?
I have no idea. I'd have to go into the records, but I can tell you that that will be one of the questions that we will answer. My understanding is that we have a --
Councilman, I don't know about every piece of paper that flowed through the office. I didn't get COs for --
No, that's the problem, Mr. Berg. These are not pieces of paper; these are houses. People live in them. They're not pieces of paper. (Applause.) 248 12/14/99 COM. & EC. DEV. - RES. 990859
These are individuals with their lives, who probably paid good American green money for these. They are not pieces of paper. This is not a monopoly board with little pieces that just get moved around from house to house and you get Parker Avenue and then you get this street and you get that street and the other street. What do you mean, you don't remember?
You built 8 house out of a 36-unit development, with poor site preparation, and none of them have a certificate of occupancy. What is a certificate of occupancy procedure?
Councilman, I don't know the answer to that because I didn't do it.
Well, because I was not the man in charge of construction, I was not the one that gathered the documentation for settlement. I just don't know, but I -- 249 12/14/99 COM. & EC. DEV. - RES. 990859
I promised you that I would find out, but to the best of my knowledge, we have been paid for all of them.
Just tell me what the certificate of occupancy procedure is.
I do not know it. I have never gotten one in my life. I don't know how one would get one.
Councilman Nutter, if I could help Mr. Berg's memory. It's my understanding that several of the homes were sold and they weren't even built yet. So they had gone to settlement without even a structure on site.
Councilman DiCicco? 250 12/14/99 COM. & EC. DEV. - RES. 990859
Just a couple of questions. Mr. Berg, George David, how did you come to know Mr. David? How did you get to be retained by Mr. David? Is it a business relationship over the years, or are you related to Mr. David in any way?
Do you have any interest in First Anthony Residential Capital Corporation?
Does any member of your family have any interest in that corporation?
Thank you, no 22 further questions right now. Thank you.
Mr. Berg, you seem 251 12/14/99 COM. & EC. DEV. - RES. 990859 to have such a poor memory, and to be a business person with all these developments, I don't even know how you function as a businessman. (Applause.)
It's a comment. Can you remember how many houses you built on Woolston and Mt. Airy Avenue? That was back in -- I'll give you the date 'cause -- 11
I think it was -- I don't 12 know if it was 18 or 20. I think it was 18, I'm 13 not sure. 14
Well, Miss Kaplan, 15 in your attachment for that site, you have 16 single-family houses, 5. How was he able to 17 build? Do you know that there are more than 5 on 18 that site, and if he was given permission to build 19 5 and he built 18 -- or I don't know if it's 18 but it's a lot more than 5.
8306 Woolston and Mt. Airy Avenue, where we had a very heated discussion about that project. There are more 252 12/14/99 COM. & EC. DEV. - RES. 990859 than five houses on that site.
Okay, it could be that some of these were developed not by the plat process if they already had street frontage. I just don't know. I mean, I don't know how many houses are there. This is what we had in our record, we can check. Maybe there was a second plat that was filed with a slightly different address and we didn't find it in the files. We'll check, but this is what was in our records.
I missed the plat discussion. I won't ask you to repeat that. I don't want to go over it. I heard it but I didn't hear it but. I will tell you that there are more than five houses on Woolston and Mt. Airy Avenue. Some are row, and I think originally, he had applied for all singles. They are rowhouses and there are maybe two or three that are single, but there are certainly more than five houses. I'd like to know how that happened.
Well, I will check. It's possible that we have the documentation and we 253 12/14/99 COM. & EC. DEV. - RES. 990859 just didn't find it in our file.
Mr. Berg, where did your assets go from all of these entities that you started and then you shut down?
New Century Homes lost over $700,000 in its operations from 1993 through 1997. It was not merely a question of where did I take the assets. I lent that company $300,000, and I have not gotten all of it back, nor will I.
This is for the Record's Department. Miss Decker, is she still here? (Joan Decker comes forward.)
Mr. Berg, 332 East Walnut Lane, Miss Kaplan testified that that property has been sold. To whom did you sell that to?
I never owned it. At one point, Affordable, I believe, had a lease with an option to buy. We had an approval for 11 townhomes on it, but we decided not to go forward.
There's somebody there now 254 12/14/99 COM. & EC. DEV. - RES. 990859 who is maintaining some kind of an operation. I don't know anything about it now.
So the site was not filled in during time that you were an interested party, even though you may not have owned it. You didn't do any prep work on the ground or anything like that?
No, that isn't true. We cleared it. My recollection is that we cleared it and graded it.
We had a permit, we got a soil storage permit or something like that. We did have a permit to do the work we did.
Why would you grade it if you didn't own it. I don't understand.
Because we intended to buy it, we had every intentions of buying it.
And then there was 255 12/14/99 COM. & EC. DEV. - RES. 990859 a violation issued for the way the backfill occurred, and then you subsequently --
No, that's not my recollection. My recollection is that we got a permit to use it for fill storage or something like that. And after that, I just don't know what happened.
Okay. Just a couple of questions, because some of the complaints we've received have to do with individuals believing that they were paying one price, and so I want to know from you how, is it possible for deeds and mortgages to be filed for the same transaction and no one caught the discrepancy between the purchase price on the deed and the significantly higher price on the mortgage?
It's possible in some of the cases that we investigated that the mortgages were not filed until a year after the deed was filed, so that meant that the two documents did not come in simultaneously. If they had come in simultaneously, and a document examiner reviewed each of the documents, they would have noticed 256 12/14/99 COM. & EC. DEV. - RES. 990859 that the value on the deeds, the stated sales price of the deed, was for 10,000, and a mortgage amount was for 80,000. But in the absence of the two documents being file concurrently, it would be something that we would no flag.
Why are they allowed to file these mortgages years later.
That is something over which the Department of Records has no control. When a document comes into the Department, we are bound by Pennsylvania law to review the document for approximately recording requirement items. 14 If those items are present, then we are really 15 legally bound to record the document. 16 So, again, the on the face of the document, as long as the requirement, the State requirements, appear, then that is a recordable document, and we are bound by State law to record it. We would not be in a position to reject it. Again, if the documents came in simultaneously, as many titled documents do come in, the difference in the sales price on the deed and the mortgage amount would be a flag.
And the mortgage 257 12/14/99 COM. & EC. DEV. - RES. 990859 is not required to be a part of the filing?
The State does not require the mortgage to be a part of the filing?
When a document is presented -- I guess, really, the requirements are what the Records Department is required to do. We accept individual documents, some documents come in grouped together on a transfer of property, but there is no requirement that a deed must be accompanied by a mortgage or, later, an assignment of the mortgage.
Well, does the State have to make this a requirement, or can the City make this a requirement?
But once you receive a deed, and I don't know how your records are filed or how you follow a transaction 'cause it seems to me there ought to be a transaction relative to a property. If the deed does come in 258 12/14/99 COM. & EC. DEV. - RES. 990859 and, say, two or three years later, the mortgage comes in, there's no cross-check or could you cross-check?
No, because we really there -- it's -- there really would be no reason for us to do that. Many homeowners take out second and third mortgages, so the mortgage does not necessarily come -- a second or third mortgage doesn't come at the time that a deed is filed. And it --
All mortgages that are brought into the Department are recorded. We keep an index, an electronic index, of the transaction for that document, and we also retain a permanent copy of the document on microfilm.
So if I purchase a house, my deed is recorded, I may not necessarily ever have to have a mortgage recorded?
Possible, yes. If you did not need to borrow for that home, yes, it is possible, that is correct.
All right, but if 259 12/14/99 COM. & EC. DEV. - RES. 990859 you do borrow money for the home and have a mortgage, should that be recorded?
It is a requirement that these various land-related documents be presented to the Recorder, and that the County Recorder's Office records them.
How can we help -- how can we prevent this kind of thing happening again? Because clearly, the people had one price on one deed and then clearly had a mortgage for another price. What could you suggest to be done for this not to happen in the future?
If the documents are presented concurrently, I think that that would be a flag. The difference in the sales price on the deed and the mortgage amount, that would be a flag. But in the absence of that situation, I cannot think of a way that this can be prevented. Once the Records Department records the document, we send a copy of -- the assessor's 260 12/14/99 COM. & EC. DEV. - RES. 990859 files are updated on a daily basis, and the assessor also has the microfilm for deeds available to them for their use. And we also serve as an agent for the State and the City and the collection of the realty transfer taxes, and we send a copy of the realty transfer tax form to the Revenue Department, and the Revenue Department, I understand, periodically takes an audit of the forms that we have sent over to confirm the -- whether the tax seemed adequate and whether the -- if there were a claim for an exemption, whether that seemed adequate. So they're the process pieces that are in place that we do follow in what we feed to the other City agencies. And, really, it's up to the other City agencies to perform an audit of the record. Again, the Records Department, in the absence of a scenario where the deed and the mortgage are filed concurrently, there's really not much more that we can do, other than to make sure that we are making the information that we received available to the assessors and to the Revenue Department. 261 12/14/99 COM. & EC. DEV. - RES. 990859 We are bound by law to accept -- I think, in my testimony, I tried to make clear that we have no investigative authority, really, to look into these kinds of situations. Of course, we're very willing the help in whatever way that we can, but we really do not have investigative authority. And, again, our authority is really limited to checking for the recording requirements according to State law. If they are satisfied, then we are legally bound to record the document.
So someone who's really smart can that understands your role could really take action such as with some of these mortgages and these deeds.
That's correct, that's correct. It is up to the filer to bring the documents into the Department to be recorded. And the presence and the satisfaction of the legal criteria do not mean that there cannot be a fraudulent misrepresentation of information on the face of the document. So that is correct. What you're saying is correct.
Thank you very much. 262 12/14/99 COM. & EC. DEV. - RES. 990859 Any other questions?
Why don't you approach the table if you wish to provide any testimony to this record. (Edward Hayes comes forward.)
Mr. Berg, just a really quick question. Earlier today, you testified that you first began building homes back in 1993; is that correct?
805 Wolcott Drive, are you familiar with that? Did you build that home?
Miss Kaplan, in your testimony, you listed that property at 805 Wolcott Drive as a property that had either been owned or developed by Mr. Berg. Could you please tell me where you got that information from?
This information came from 263 12/14/99 COM. & EC. DEV. - RES. 990859 the files of the Planning Commission of properties that we have been involved with, you know, the Planning Commission has had some review of. And my staff put everything together that his name had been associated with. As it indicates on this chart, we did not say that he necessarily owned these properties at the time of the development, but he may have formerly owned this property, as was the case with the one we were just talking about a little while ago, which were sold. So we don't know that he actually built this house, but his name appeared in our files as having brought some type of processing into the Planning Commission, and that's why it was listed her.
Application for development of it, something of that nature?
I'd appreciate that, 'cause it's important, and even though it's only one property, the file indicates that the application or the file was created back in May 24th of 1988. 264 12/14/99 COM. & EC. DEV. - RES. 990859
W-O-L-C-O-T-T Drive. And the file number -- is this your file 6 number, Miss Kaplan?
It's my file number. The date we have, which is probably the date the file 9 was set up or -- it's either the date the file was set up or the date some approval was given, was May 24, 1998.
Okay. And Hayes Street at Wistar, although there no construction according to your comments, some sort of activity --
Excuse me, I didn't recognize the address 805 Wolcott, but I do recognize Hayes at Wistar. 265 12/14/99 COM. & EC. DEV. - RES. 990859
The first location was for an application of a file that was created, generated back on May 24th of 1998. And the home had ultimately been built -- don't know if it was built by you. And then the next question as it relates to Hayes at Wistar Street. And I appreciate your recollection, but there is an application of some sort that was taken out back on July 3rd of 1990, and that's three years prior to the date that you testified that you had been involved in construction.
Well, you had asked me if we had built any houses, you know, when did we start? My recollection is that we made a preliminary application for a subdivision at Hayes at Wistar. I'm not sure that one was ever finally approved. I know that we didn't build there.
I think the area that I was questioning had more to do with the application process and your knowledge of the 266 12/14/99 COM. & EC. DEV. - RES. 990859 process. And I believe the way you testified -- at least the way I understood it -- was that prior to 1993, it was kind of far into you that process. So whether or not you've completed any construction on homes prior to that, you obviously engaged in some activity with the intention of building, and I would assume that as a potential builder-developer, I would go through that process to find out what is available to developers and builders and home purchasers. That's the only reason I raised the question.
Well, will -- now I appreciate, you know, the context of your question. Elliot Rothschild, who was an architect in this city -- I don't know where he is now -- was working for a firm, and they handled that whole thing for me, so I didn't learn anything from that except that I didn't want to do that project. That's the only thing that I learned.
I think we had Mr. Hayes coming up, and then I have one last series 267 12/14/99 COM. & EC. DEV. - RES. 990859 of questions for some government people -- L&I and the Law Department. Mr. Berg, let me say that I greatly appreciate your recall on the matter involving Hayes Street at Wistar back from mid-1990. We've had a number of questions asked about time periods that were more current, to which you had no 9 recollection, but I'm glad that you were able to recall something back from 1990. I greatly appreciate that.
Well, it's just easier to remember a whole development than it is to remember a piece of paper, Councilman.
I understand. Thank you very much. Mr. Hayes, please identify yourself for the record.
Good evening, Committee members. My name is Edward Hayes. I'm an attorney here in Philadelphia with the law firm of Fox, Rothschild, O'Brien & Frankel. My office was notified yesterday by the Councilwoman's office about attending this hearing today. As a result of being advised at such a 268 12/14/99 COM. & EC. DEV. - RES. 990859 late date, there's no prepared statement, but I would like to point out one issue with respect to Parker Avenue on which I think there's some confusion as to what's been presented to this committee.
Mr. Hayes, before you go into that, is it my understanding that in your capacity as an attorney at the Fox Rothschild firm, are you here representing Fidelity National Title Insurance Company.
That is correct, sir. I was retained by them initially in late 1997 as a result of the problems that were arising from Mr. Berg's development. Since that time, I have represented them soley in connection with this problem.
The comment was made, Councilman, that there are eight homes on Parker Avenue that are completed. I believe the actual number of homes that are completed and occupied on Parker Avenue is twelve, not eight -- eight that may be occupied by the homeowners who are involved in the litigation with Mr. Gross's office, but 269 12/14/99 COM. & EC. DEV. - RES. 990859 there are four other homes that --
Mr. Gross, who represents the majority of the homeowners who are here today.
There are also four other homes that are now owned by, I believe, a gentleman by the name of Peter Borsuk, who took those properties back in lieu of foreclosure from Mr. Berg's entity on that property. So there are a total of twelve homes completely.
At one point in time, he loaned monies, through an entity called PKM Resources, to Mr. Berg's entity. And my understanding is that the entity then deeded the property back originally to PKM in lieu of foreclosure, and the property was then conveyed by 270 12/14/99 COM. & EC. DEV. - RES. 990859 PKM to Peter Borsuk, according to the public records.
The issue where I think there was some confusion involved certificates of occupancy on Parker Avenue, and a statement that was made by someone -- I don't recall who -- that a certificate of occupancy is a title issue in connection with the property. A certificate of occupancy has absolutely nothing to do with title to the property. The party requiring the certificate of occupancy on the property is the lender. The lender will not fund a mortgage on a property unless it has evidence that there is a certificate of occupancy in existence for that property, the reason being that it does not want to take a 271 12/14/99 COM. & EC. DEV. - RES. 990859 mortgage back on a property that is being occupied illegally. All of the eight homeowners who are involved on the Parker Avenue development did obtain mortgage financing on the property, so that at the time of settlement, a document purporting to be a certificate of occupancy had to be supplied in order to submit to the lender, in order for the lender to approve the financing.
Well, what do you mean by a document purported to be a certificate of occupancy? It either is a certificate of occupancy or it is not a certificate of occupancy.
I mean, does somebody just write "Certificate of Occupancy" across the top and say this is it?
My concern, Councilman, is when we first began investigating this matter and we met with the Department of Licenses and Inspections regarding the Parker Avenue property 'cause we were extremely concerned about not only the title issues but the condition of that 272 12/14/99 COM. & EC. DEV. - RES. 990859 property, we learned for the first time that certificates of occupancy had only been issued for the first two properties on Parker Avenue, properties that were developed by the former owners of the property, a gentleman by the name of Mr. Fearman (ph.). None of the Berg properties, according to the City, in fact, had certificates of occupancy issued. We could not understand how that could be the case in light of the fact that a lender would not approve the issuance of mortgage funding on these without the certificate.
All right. So why don't you fast-forward the story and tell us what you thought happened.
I have to believe, from what I've heard today, that someone submitted falsified documents purporting to be certificates of occupancy in order for the lenders to approve the closings. And I would suggest to you that you communicate with the lenders and ask the lenders to supply you with what documents they received upon which they issued or approved the issuance of the financing on these properties. 273 12/14/99 COM. & EC. DEV. - RES. 990859
Now, what was Fidelity National's role in all of this?
Fidelity National Title Insurance Company issued title insurance policies to almost all of the homeowners who are involved on these developments. It is a decision that has cost the company in excess of $1 million already, as a result of misrepresentations that were made to it by Mr. Berg in connection with liens on the property. It has had to pay $800,000 to satisfy a mortgage held by Mountain Funding on one of the developments that Mr. Berg indicated was to have been paid off. It had to cover $150,000 worth of checks that Mr. Berg delivered, through his nonprofit organization, at settlements as gifts to these particular individuals because those checks bounced.
Many of these homeowners, you will see in their testimony, were only able to have the necessary fund to complete settlement on these properties through a gift that was supposed to be given to them by a nonprofit organization. 274 12/14/99 COM. & EC. DEV. - RES. 990859 I believe it was the Messiah evangelical Baptist Church, was the name of the organization. That entity supplied checks at closing for the gift portion of the monies that the buyers needed to complete settlement. Unfortunately, despite Mr. Berg's representation that this was a separate entity from him and that the checks were good, $150,000 of those checks approximately bounced and were never made good by that organization, which then had to be covered by the title insurance company.
And is that -- I mean, if I went out tonight, could I go to a service at the Messiah Evangelical Baptist Church?
I don't believe, sir, that you could, and I believe there are also investigations into whether or not that was a legitimate entity from what I understand.
Do you recall what the address was? 275 12/14/99 COM. & EC. DEV. - RES. 990859
I do not recall that, although we do have copies of those checks that I could supply to Council.
In addition, we are still faced with substantial claims as a result of liens and encumbrances that exist on this property. We have met with the City of Philadelphia in an effort to help the homeowners in connection with the transfer tax issues that have arisen on these properties since all of transfer taxes were underpaid, in our opinion. And so when I hear the word "trust" that was used by so many of the homeowners, I find that we fell prey to the same situation at Fidelity National, which has cost a substantial amount of money already and will cost much more down the road.
Thank you very much. Councilwoman Tasco. 276 12/14/99 COM. & EC. DEV. - RES. 990859
I want to ask you a question. Is First Fidelity National Insurance Company paying the full-time amount of realty transfer tax to the City of Philadelphia and the Commonwealth of Pennsylvania?
No. We are presently negotiating with the City of Philadelphia in an effort to cover what would be the buyer's portion of the transfer tax on the properties. It has become a very complicated issue, madam, in light of the allegations that have been made regarding the actual value of these properties. As the City Solicitor's Office will tell you, we commissioned an appraisal to try to determine what the actual value of these properties are, because that is what is used to calculate transfer tax on these properties. And working with the City Solicitor's Office, we are preparing a pretty detailed schedule, setting forth what we believe the values are, setting forth what transfer tax was actually paid on these properties, and what transfer tax would be due from the homeowners on these properties. It is typical in the City of 277 12/14/99 COM. & EC. DEV. - RES. 990859 Philadelphia -- in fact, in Pennsylvania -- for transfer tax to be split equally between the buyers and the sellers. And our proposal to the City is going to be that we satisfy the obligation that would be the buyer's obligations in these transactions if Mr. Berg is unsuccessful in his present proceeding before the Tax Review Board to have his position declared correct, and that is that the transfer tax is only due on $15,000, which was the land value. We do not believe he will be successful in that, and we've told the City that if he is not, we would like to make arrangements to satisfy the obligation of these homeowners.
And weren't these transfer taxes due at the time of settlement?
And the transfer taxes were paid at that time based on the land value of the property. Mr. Berg's position, ma'am, was that because these are modular homes, that the homes themselves are not subject to transfer tax, that only the land is subject to transfer tax. We disagree with that position, and that's why we've stepped up to the plate and gone 278 12/14/99 COM. & EC. DEV. - RES. 990859 into the City in an effort to deal with that problem.
Well, what happened at the time of the settlement? Did that discussion take place during the settlement, at the time of the settlement?
Transfer taxes were calculated based on the land sale at the time of settlement. And, in fact, those monies were remitted to the City with the deeds because you must remit transfer tax --
Who determined at that time at the title company that that was the appropriate amount to pay?
That is not the title company's determination; that is the determination of the parties to the transaction as to what the value of the property is on which the transfer tax is being determined. The tile company has nothing to do with the value of the property; the title economy merely calculates the appropriate percentage based on the value supplied by the parties to the transaction.
Well, what 279 12/14/99 COM. & EC. DEV. - RES. 990859 protects you from this kind of situation if the State requires -- I mean, I don't know about how the value is calculated, but if it's a value calculated on the value of the property, then you as the insurer would be held accountable or responsible for the value of -- it doesn't seem to me that the real-estate transfer tax should be on the property and not the land. I mean, what is the practice in the state?
Well, ma'am, I agree with you, and that's why I do not believe that Mr. Berg will be successful in his efforts to have a determination made by the City that the transfer is only on the land and not the modular homes. At the time a deed is filed, there is a transfer tax affidavit signed by the parties to the transaction, in which they set forth the value of the property. The problem that you had in this case, and the problem that the Department of Records had in determining what was going on here, was these properties had not yet been assessed by the City of Philadelphia and did not have a value apportioned to them at that time. So if you look at the transfer tax 280 12/14/99 COM. & EC. DEV. - RES. 990859 affidavits, which accompanied the deeds, and you do not have to put the actual consideration in a deed; you can put $1. And the reason you're allowed to put $1 is because you must accompany the deed with a transfer tax affidavit. And you pay a tax based on the higher of either what you paid for the property or the fair market value, which is assessed by the City. The Department of Records was at an extreme disadvantage in this case because these properties had not been assessed, so they had no 13 way of determining what the actual consideration was that was paid for the property.
Why are they allowed to file the deed then? Is Miss Decker here?
There is nothing wrong with the deed. The deed itself has -- if you check any of these deeds, and I will be more than happy to send you copies, the deeds had completed transfer tax affidavits attached to them, indicating that the consideration paid for the property was $15,000, because the position of Mr. Berg was that the transfer would be paid on the land, because 281 12/14/99 COM. & EC. DEV. - RES. 990859 the home is much like a trailer that you bring in, and you don't tax the trailer. So there was nothing for Ms. Decker or her office to see that was amok in the document that was supplied because I'm sure her office sees many documents that come in on new construction where there are not actual assessed values that are available to someone filling out the transfer tax affidavit. I'm assuming that's correct.
So if a homeowner bought a house for $132,000, and you negotiate somehow with the City for the fair market values only on what you negotiated and not on the 132,000. Would --
What we are discussing with the City, and I think what I'm, at this point, permitted to say is that we are trying to determine a number that's satisfactory to the City that represents the true value of these properties. There will then be, once that true value is determined, a multiplication factor applied to it, which is the transfer due to the City and to the State. At that point in time, the proposal 282 12/14/99 COM. & EC. DEV. - RES. 990859 that we have already made to the City -- and it's not yet been decided upon because there's too much information still to gather -- is that Fidelity National Title Insurance Company will pay to the City of Philadelphia the buyer's portion of the transfer tax, which is one half the transfer tax, in consideration for the City agreeing to release the homeowners of any additional obligation with respect to the taxes. Now, the City statute does permit the City to go completely against Mr. Berg for the full amount of the transfer tax and completely again the homeowner for the full amount of the transfer tax. That's not the way it's customarily done in this state; it's normally split equally. And we have said to the City that we think with the injustice that these homeowners have suffered, that they should not be asked to ante up the full amount of the price, that it would be appropriate for one half to be paid, and we, the title company, have indicated a willingness to pay that sum, once we're able to determine what that sum is. And it's been quite a chore, I must 283 12/14/99 COM. & EC. DEV. - RES. 990859 tell you, in finding all of the properties, number one; and secondly, then determining what their real value is.
Okay. I'm finished. Thank you very much. I think we're finished with both of you.
I just have one final question of Mr. Berg. I want to go back to Miss Delores Osborne-Gerrick. I want to ask one last clarifying question. In this mortgage that Miss Osborne- Gerrick gave us, she was supposed to begin her first payment of this mortgage on January 1, 2001, and you testified to the fact that you gave her that time, but your letter is dated April, 1996, and you're asking -- you're saying that she's behind in her mortgage payment. I mean --
Council Lady, to answer that question, I haven't seen the documents in five years or four years. If you'll let me see it, I'll answer it.
All right. (Mr. Berg looks at document.) 284 12/14/99 COM. & EC. DEV. - RES. 990859
My brief reading tells me that that's not what it says. What it says is that the whole amount is due on January 1st and she was to pay interest in the meantime.
She was to pay interest in the meantime, the balance, the $16,000, the principal. I mean, it was an interest-only loan.
Okay. Well, the $16,000 loan carried a 9 percent interest. She was supposed to pay interest monthly at 1/12th of $16,000 every month. She paid nothing. In all events, the whole balance was due in five years; it is what is known as "a balloon loan." She paid nothing. I sent her a Dunning letter, she negotiated with me, and I agreed not to ask for any money until 2001. And it's that simple.
Thank you, Councilwoman. Just very quickly. Mr. Berg, what current licenses do you have to conduct business in the City of Philadelphia?
I moved from the city in the middle of March, I believe, of 1999.
You don't have to live in the city to do business in the city. When did you stop doing business in the City of Philadelphia?
Well, I guess I would have 286 12/14/99 COM. & EC. DEV. - RES. 990859 to go back to my accounting records and see when was the last time I got a fee from a Philadelphia resident. I don't remember. It was sometime last year but I just don't recall.
Well, didn't Mr. David pay you for your idea for 20th and Geary?
Yeah, but that wasn't a consulting fee; that was a capital gain, and that's not -- I'm not required to be licensed to buy and sell things and make a profit on them. Only if you do it as a business.
No. There's a distinction between doing it as a business and doing it occasionally. This was a one-time thing, it's been one time in two years.
You lost me. Mr. David's firm is either located or doing business in the City of Philadelphia, correct?
My client does not know that for sure. Mr. David can answer that question.
My client does not know for sure. Mr. David can answer that question.
But your client was a vice president and then a consultant for Mr. David for First Anthony Residential Capital Corporation; isn't that correct?
I mean, it's just -- I mean, Mr. David does business in Philadelphia, right? Isn't First Anthony either located or engaged in business in Philadelphia?
Councilman, my problem is this is not his only business; he has an office in Philadelphia that I know of.
Oh, I'm sorry, in the Monroe 288 12/14/99 COM. & EC. DEV. - RES. 990859 Office Center near City Line, but virtually everything --
Okay, so if he has an office in Philadelphia, then I believe the code says that he is doing business in Philadelphia. Isn't that correct, Madam Solicitor?
So he's doing business in Philadelphia, and you were a vice president and subsequently a consultant to him in Philadelphia on the 20th and Geary Street project because it was your idea; is that correct?
And you received a fee for your services; isn't that correct?
We received a consulting fee to Gordon Development Group. Gordon Development Group paid me salary and paid my expenses and --
Gordon Development Group is a business; is that correct?
Does Gordon Development Group have a business-privilege 289 12/14/99 COM. & EC. DEV. - RES. 990859 license?
What do you mean your understanding is? It's your business, isn't it? You don't know whether your business has a business-privilege license?
I have filed them with my accountant, and I believe we have a business- privilege number.
Well, the company got a fee, you have to pay taxes on income for the business; isn't that correct?
Councilman, the tax returns are with my accountant now, and if you ask me a question as to what tax you're talking about, I will get you an answer.
Well, I'm just trying to understand whether you're in business or not. You were in business as a vice president and 290 12/14/99 COM. & EC. DEV. - RES. 990859 a consultant with First Anthony, you received a fee for your idea. Mr. Anthony has a business in Philadelphia, you received --
Mr. David of First Anthony paid you a fee for an idea for a project in Philadelphia. You said that you no longer engage in business in Philadelphia. I asked you, did you receive a fee for your service from Mr. David for your First Anthony Project idea?
Gordon Development Group received money on account of a fee, and we received that over the period of a year or so.
Councilman, you're trying to have me characterize cash that we got, and I think my accountant did not characterize as income; he might have characterized it as a loan on an account of a fee that we haven't paid yet.
Who negotiated this deal, your accountant or you? I mean, it was your idea, right?
I submitted to Mr. David drafts of an agreement; none were ever executed. We just went ahead. He gave me a monthly check on account of expenses, and we never agreed to what it would be. It has been only been reduced to writing in the last day or so.
All of which leads to, you were conducting business in the calendar year 1999, correct?
And I'll go back to my original question: do you have a business- privilege license?
But I didn't receive any 292 12/14/99 COM. & EC. DEV. - RES. 990859 money. I didn't receive any money.
It doesn't matter. You have a business here in Philadelphia.
I told you that I believe that Gordon Development has a business-privilege license. I'm almost certain of it.
Okay. And do you still have a business-privilege license?
Yes. If I had it then, I have it now 'cause it would only be a year old.
Okay. I only had to ask you a second time because your original response was, you don't have a business-privilege license, right? I mean, I can replay the question if you'd like, but I asked you that question about five minutes ago and your answer was no. 19
Oh, Councilman, I'm sorry. I thought I told you that I believed that Gordon had a business-privilege license, but I did not. I thought that that's what I said to you.
But Gordon is your business, right? The business has the business- privilege license. I'm not asking you, do you 293 12/14/99 COM. & EC. DEV. - RES. 990859 have in it in your wallet right now? You are the business, the business --
I thought you were asking if the business has a business-privilege license to the best of my knowledge. I will check on it, but I believe that we do.
You know, it must be incredible sitting down at the settlement table with you. (Applause.)
Madam Solicitor. I'm sorry, Mr. Berg, do you have anything else you wish to say?
No. 22 Madam Solicitor, Mr. Solvibile, Mr. Perry, Miss Decker, Miss Kaplan, Mr. Kishinchand, Mr. Glancey, and if there is anyone from the Revenue Department, what I would like you to do is 294 12/14/99 COM. & EC. DEV. - RES. 990859 review whatever filed and record you have as it relates to Mr. Berg, the testimony from this particular hearing, the testimony that may have been submitted by residents of the City of Philadelphia who have found themselves in some situation, and develop on behalf of this committee a task force to deal with any proposals, change in regulations or procedures, to assist the City of Philadelphia in ensuring that nothing like this ever happens again. (Applause.)
Secondly, as it relates to L&I, for whatever has come out of this particular hearing or any previous discussions, meetings, testimony, or other various and sordid horror stories, if there are any procedures by way of taking action with regard to Mr. Berg regarding any license that he may or may not have now, in the past, in the future, or any that he forgot about this afternoon, if there are procedures available to us for any revocation or suspension of those particular licenses, I would ask that you research that and report back to the Chair what your findings are and what procedures are 295 12/14/99 COM. & EC. DEV. - RES. 990859 available to the City of Philadelphia in that regard. Lastly, Madam Solicitor, I would ask that you provide to the committee, as you may be able to by law, any information or documents subsequent to their filing of any complaints that may be made by the City of Philadelphia to the District Attorney's Office, the Pennsylvania State Attorney General, and the U.S. Attorney's Office with regard to any and all matters involved in the John Berg situation.
I don't have any questions; I just have a comment. It is quite evident that these people here have been victimized, and they trusted an individual who came to them with a slick tongue and velvety words, took them in, sucked them in into his confidence and then proceeded to make them victims of all of that we've heard here today. And I'm very careful with my words because I do know that there is an ongoing lawsuit here. 296 12/14/99 COM. & EC. DEV. - RES. 990859 So I just want to express my frustration. Mr. Berg, you and I met back in 1993 when you wanted to do Mt. Airy Avenue, and I will remind you that you promised to do a retaining wall for me, and that is still falling, and you never did the retaining wall, and I should have known then that there was nothing -- that I could not and should not trust your word. So you see these people here, you ought to have some feeling of compassion or some feeling of guilt that you have hurt these people and made them victims. We want to thank all of you for coming. As a District Council person, I will pay particular attention to any new construction going on in the 9th Councilmatic District. I will certainly work with City Planning and L&I. I want to be alerted to any new construction, whether it is properly zoned or not. Before the permits are issued, I want to know about them so we can check them out to protect the people in my district, and I'm sure I speak for all the other District Councilmembers. Thank you all very much. 297 12/14/99 COM. & EC. DEV. - RES. 990859
Thank you. Thank you Councilwoman Tasco. This hearing will stand recessed to the call of the Chair. (Adjourned at 8:30 p.m.) - - - 298 C E R T I F I C A T E I HEREBY CERTIFY that the foregoing proceedings of the Council of the City of Philadelphia of Tuesday, December 14, 1999, were reported fully and accurately by me, and that this is a correct transcript of same. RE: COUNCIL COMMITTEE ON COMMERCE & ECONOMIC DEVELOPMENT RESOLUTION NO. 990859 __________________________________, JOSEPHINE CARDILLO, Registered Professional Reporter