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Minutes

Committee Hearing, December 14, 1999

Philadelphia City Council Committee HearingsDec 14, 1999

People mentioned

Names our system found in this transcript. Automatically extracted, so it can include anyone named in the record, not only officials or parties.

Organizations mentioned

Councilman Nutter

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 --

Mr. Perry

Right. To be exact, the communication was with Mr. George David, who was acting as president of the company, and he agreed to --

Councilman Nutter

Which company?

Mr. Perry

Of First Anthony.

Councilman Nutter

Okay.

Mr. Perry

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.

Councilman Nutter

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?

Mr. Perry

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.

Councilman Nutter

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?

Mr. Perry

That is correct.

Councilman Nutter

As to what the nature of the relationship is presently between Mr. Berg and this First Anthony company?

Mr. Perry

That's correct, Councilman. And in light of documents which he signed, I don't know what to believe.

Councilman Nutter

Gotcha. Miss Kaplan? (Barbara Kaplan comes forward.) 239 12/14/99 COM. & EC. DEV. - RES. 990859

Councilwoman Tasco

We have a couple of questions for the Records Department before we end this hearing.

Councilman Nutter

Miss Kaplan, good afternoon. Would you identify yourself for the for the record please.

Ms. Kaplan

Barbara Kaplan, Executive Director of the City Planning Commission.

Councilman Nutter

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.

Councilman Nutter

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?

Councilman Nutter

Or what is the Planning Commission's role in this whole process?

Ms. Kaplan

Yeah, instead of reading the testimony, I'll just try to summarize it. 240 12/14/99 COM. & EC. DEV. - RES. 990859

Councilman Nutter

Thank you.

Ms. Kaplan

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.

Councilman Nutter

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.

Councilman Nutter

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?

Ms. Kaplan

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.

Councilman Nutter

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.

Ms. Kaplan

Right, right.

Councilman Nutter

288 Parker Street.

Ms. Kaplan

Parker Avenue. 245 12/14/99 COM. & EC. DEV. - RES. 990859

Councilman Nutter

Parker Avenue, I'm sorry. I'm assuming that it was approved for units?

Councilman Nutter

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.

Ms. Kaplan

The conditions were never fulfilled.

Councilman Nutter

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 --

Ms. Kaplan

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 Nutter

Dave or Mike or Bob.

Councilman Dicicco

Are these occupied homes?

Councilman Nutter

Bob Solvibile, these homes are occupied, correct?

Mr. Solvibile

Yes, they are.

Councilman Nutter

All right.

Mr. Perry

Councilman, it's my understanding that either all or most of those properties on Parker Avenue were occupied without certificates of occupancy.

Councilman Nutter

How did that happen?

Mr. Perry

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.

Councilman Nutter

I mean, how are people able to move into a house without a certificate of occupancy?

Mr. Perry

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.

Councilman Nutter

Well, whose responsibility is it to get the CO?

Mr. Perry

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.

Councilman Nutter

Mr. Berg, what happened with the COs on the eight Parker Avenue properties?

Mr. Berg

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 Nutter

You just have no 17 recollection right now?

Mr. Berg

Councilman, I don't know about every piece of paper that flowed through the office. I didn't get COs for --

Councilman Nutter

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

Councilman Nutter

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?

Mr. Berg

I mean that I don't remember. It's that simple. I never --

Councilman Nutter

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?

Mr. Berg

Councilman, I don't know the answer to that because I didn't do it.

Councilman Nutter

What do you mean you didn't do it?

Mr. Berg

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

Councilman Nutter

Did you get paid for them?

Mr. Berg

Excuse me, I have promised that --

Councilman Nutter

Did you get paid for them?

Mr. Berg

I promised you that I would find out, but to the best of my knowledge, we have been paid for all of them.

Councilman Nutter

Just tell me what the certificate of occupancy procedure is.

Mr. Berg

I don't know.

Councilman Nutter

I mean, you must know that.

Mr. Berg

I do not know it. I have never gotten one in my life. I don't know how one would get one.

Mr. Perry

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 Nutter

Councilman DiCicco? 250 12/14/99 COM. & EC. DEV. - RES. 990859

Mr. Alva

Well, that doesn't help, obviously, but it was interesting.

Councilman Dicicco

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?

Mr. Berg

No, but I've known him 30 years.

Councilman Dicicco

Do you have any interest in First Anthony Residential Capital Corporation?

Mr. Berg

None whatsoever, none.

Councilman Dicicco

Does any member of your family have any interest in that corporation?

Councilman Dicicco

Thank you, no 22 further questions right now. Thank you.

Councilman Nutter

Councilwoman Tasco.

Councilwoman Tasco

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.)

Mr. Alva

Was that a question?

Councilwoman Tasco

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

Mr. Berg

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

Councilwoman Tasco

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.

Ms. Kaplan

Excuse me, which site are you referring to?

Councilwoman Tasco

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.

Ms. Kaplan

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.

Councilwoman Tasco

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.

Ms. Kaplan

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.

Councilwoman Tasco

Mr. Berg, where did your assets go from all of these entities that you started and then you shut down?

Mr. Berg

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.

Councilwoman Tasco

This is for the Record's Department. Miss Decker, is she still here? (Joan Decker comes forward.)

Councilman Dicicco

Mr. Berg, 332 East Walnut Lane, Miss Kaplan testified that that property has been sold. To whom did you sell that to?

Mr. Berg

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.

Councilman Dicicco

Do you know who did the fill-in, the site fill-in?

Mr. Berg

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.

Councilman Dicicco

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?

Mr. Berg

No, that isn't true. We cleared it. My recollection is that we cleared it and graded it.

Councilman Dicicco

But you didn't own it.

Mr. Berg

That's correct. We were tenants at the time.

Councilman Dicicco

You were tenants?

Mr. Berg

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.

Councilman Dicicco

Why would you grade it if you didn't own it. I don't understand.

Mr. Berg

Because we intended to buy it, we had every intentions of buying it.

Councilman Dicicco

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 --

Mr. Berg

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.

Councilwoman Tasco

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?

Ms. Decker

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.

Councilwoman Tasco

Why are they allowed to file these mortgages years later.

Ms. Decker

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.

Councilwoman Tasco

And the mortgage 257 12/14/99 COM. & EC. DEV. - RES. 990859 is not required to be a part of the filing?

Ms. Decker

That's correct.

Councilwoman Tasco

The State does not require the mortgage to be a part of the filing?

Ms. Decker

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.

Councilwoman Tasco

Well, does the State have to make this a requirement, or can the City make this a requirement?

Ms. Decker

The recording law is governed by state statute.

Councilwoman Tasco

State statute?

Councilwoman Tasco

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?

Ms. Decker

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 --

Councilwoman Tasco

Do you keep a record of all mortgages?

Ms. Decker

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.

Councilwoman Tasco

So if I purchase a house, my deed is recorded, I may not necessarily ever have to have a mortgage recorded?

Ms. Decker

Possible, yes. If you did not need to borrow for that home, yes, it is possible, that is correct.

Councilwoman Tasco

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?

Ms. Decker

That should be recorded in the Recorder's Office, yes.

Councilwoman Tasco

Okay. And that requirement is required by the State?

Ms. Decker

It is a requirement that these various land-related documents be presented to the Recorder, and that the County Recorder's Office records them.

Councilwoman Tasco

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?

Mr. Berg

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.

Councilwoman Tasco

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.

Ms. Decker

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.

Councilwoman Tasco

Thank you very much. 262 12/14/99 COM. & EC. DEV. - RES. 990859 Any other questions?

Councilman Nutter

Is Mr. Edward Hayes here?

Mr. Hayes

Yes, sir.

Councilman Nutter

Why don't you approach the table if you wish to provide any testimony to this record. (Edward Hayes comes forward.)

Councilman Dicicco

Mr. Berg, just a really quick question. Earlier today, you testified that you first began building homes back in 1993; is that correct?

Councilman Dicicco

805 Wolcott Drive, are you familiar with that? Did you build that home?

Mr. Berg

Never heard of it, don't even know where it is.

Councilman Dicicco

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?

Ms. Kaplan

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.

Councilman Dicicco

Application for development of it, something of that nature?

Ms. Kaplan

I can find the file.

Councilman Dicicco

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

Mr. Alva

Is that W-A-L-C-O-T?

Councilman Dicicco

W-O-L-C-O-T-T Drive. And the file number -- is this your file 6 number, Miss Kaplan?

Ms. 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.

Councilman Dicicco

Okay. And Hayes Street at Wistar, although there no construction according to your comments, some sort of activity --

Ms. Kaplan

It was application involving seven homes in 1990.

Councilman Dicicco

And for the record, the date was. . . ?

Ms. Kaplan

7/3/1990.

Councilman Dicicco

Thank you. Thank you very much.

Mr. Berg

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

Councilman Dicicco

Well, they are two difference locations.

Mr. Berg

Oh, I'm sorry.

Councilman Dicicco

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.

Mr. Berg

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.

Councilman Dicicco

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.

Mr. Berg

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.

Councilman Dicicco

Thank you.

Councilman Nutter

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.

Mr. Berg

Well, it's just easier to remember a whole development than it is to remember a piece of paper, Councilman.

Councilman Nutter

I understand. Thank you very much. Mr. Hayes, please identify yourself for the record.

Mr. Hayes

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.

Councilman Nutter

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.

Mr. Hayes

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.

Councilman Nutter

Please proceed.

Mr. Hayes

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 --

Councilman Nutter

With Mr. Who's office?

Mr. Hayes

Mr. Gross, who represents the majority of the homeowners who are here today.

Councilman Nutter

Okay, right.

Mr. Hayes

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.

Councilman Nutter

What's Mr. -- what's the gentleman's name?

Mr. Hayes

Peter Borsuk, B-O-R-S-U-K.

Councilman Nutter

Was he a mortgage person?

Mr. Hayes

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.

Councilman Nutter

This Mr. Borsuk owned PKM?

Councilman Nutter

And he transferred it to himself through the company.

Mr. Hayes

That's correct, and then did a refinancing of the property.

Councilman Nutter

Okay.

Mr. Hayes

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.

Councilman Nutter

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.

Mr. Hayes

Well, having heard the statement --

Councilman Nutter

I mean, does somebody just write "Certificate of Occupancy" across the top and say this is it?

Mr. Hayes

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.

Councilman Nutter

All right. So why don't you fast-forward the story and tell us what you thought happened.

Mr. Hayes

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

Councilman Nutter

Now, what was Fidelity National's role in all of this?

Mr. Hayes

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.

Councilman Nutter

What is this nonprofit organization?

Mr. Hayes

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.

Councilman Nutter

What was the name of that entity again?

Mr. Hayes

I believe it was the Messiah Evangelical Baptist Church.

Councilman Nutter

And is that -- I mean, if I went out tonight, could I go to a service at the Messiah Evangelical Baptist Church?

Mr. Hayes

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.

Councilman Nutter

Do you recall what the address was? 275 12/14/99 COM. & EC. DEV. - RES. 990859