CONCORD -- Six years after federal agents raided the Seeno homebuilder headquarters, a visibly annoyed federal judge on Friday excoriated family members for failing to attend a hearing where one of their companies was expected to plead guilty to criminal bank fraud charges. 
Judge Yvonne Gonzalez Rogers refused to agree to the plea deal because she said she did not have enough evidence to accept a fine and restitution of $11 million for Discovery Sales. Earlier in the day, the company was formally charged for its role in the "builder bailout" scam that allowed the Seeno companies to continue selling properties at high prices during the housing market downturn by obtaining mortgages for homebuyers through illegal means.
Gonzalez Rogers focused her ire on the absence at the plea hearing of Discovery Sales President Albert Seeno III, who along with his father, Albert Seeno Jr., operates a Bay Area homebuilding empire.
"It's his company, and he's not here to take responsibility for what his company has done?" the judge asked two attorneys representing the Seeno company. "I find that a little odd. I don't find it particularly appropriate."
Gonzalez Rogers, who in recent years accepted plea deals from three former Seeno employees implicated in the scam, said she would not "rubber stamp" the agreement that would spare Seeno family member from individual criminal charges.
"The American people, rightly so, are very frustrated with the conduct which was criminal ... which led to the financial disaster in this country," the judge said. "(Seeno III) shows an unwillingness to publicly take accountability for his company's actions, and that says something for me whether the company is entitled (to the agreed-upon fine)."
In its plea agreement, the Seeno company acknowledged that through incentive programs, mortgage payment assistance and other means it fraudulently got banks to approve loans for unqualified buyers. In some cases, the homes were worth less than their inflated loans at the time of purchase.
Gonzalez Rogers asked why Seeno III was not charged.
"In the judgment of the U.S. Attorney's Office ... we don't have sufficient evidence to convict (Seeno III)," Assistant U.S. Attorney John Hemann said.
Seeno's attorneys, who declined to comment outside court, told the judge that company officials are not required to appear at such plea agreements and reminded her that not all the homes sold by Discovery Sales during that period were involved in the scheme.
The agreement, if approved, would end the six-year investigation that netted indictments against three company employees and a half dozen Seeno associates. As a result of the homes they sold through the bailout scheme, the Seenos continued receiving large lines of credit from banks to remain operational.
"It allowed Discovery to stay in business over a difficult economic period in time," Hemann told the judge. "They staved off what was potentially bankruptcy or an enormous loss."
During a 16-month period in 2008 and 2009, when the alleged scam transpired, various Seeno companies opened at least $1.24 billion in construction lines of credit, according to an investigation by this newspaper.
More than 325 Seeno and Discovery homes sold from 2006 to 2008, exceeding $200 million in sales, used a series of illegal schemes, according to the charging document. The total loss is estimated at $75 million, but despite the bank fraud charge, Wells Fargo and JP Morgan Chase -- the two preferred lenders of Discovery Sales -- were hardly innocent victims, Hemann said.
"In this case, the banks are not fully without blame," Hemann said. "Wells Fargo made a lot of money. In fact, it may not have lost money at all through their relationship with Discovery Sales, and the same with JP Morgan Chase."
Prosecutors allege Wells Fargo and JP Morgan Chase would issue the loans, receive origination fees and quickly sell the loans, which would continue being sold and eventually packaged in securities.
"Everyone was making money gaming the system, or at least trying to do so: the builders, the buyers, the real estate agents, the mortgage brokers and the originating banks, and the banks who securitized the bad loans," Hemann wrote in his sentencing memorandum.
"The losers are way downstream and essentially the American people," Hemann told the judge.
Seeno attorney William Goldman told the judge that determining the actual losses in this case would be difficult and time-consuming because tracing the loans as they went deeper downstream was "basically impossible."
As part of the tentative agreement, the Seenos had agreed to pay $3 million in restitution to Fannie Mae and Freddie Mac, two taxpayer-sponsored financial services companies, according to court documents. Discovery Sales will also be placed on probation for five years.
Two of three former Seeno employees who cooperated with FBI investigators have yet to be sentenced for their guilty pleas as part of this scheme. In February, Jason Sterlino was sentenced to six months in prison for what Hemann called "minor fraud" done to further the scheme.
Former Discovery Sales Vice President Ayman Shahid and sales executive Carey Hendrickson have also pleaded guilty and were supposed to be sentenced this month, but their attorneys said those hearings have been postponed.
Contact Matthias Gafni at 925-952-5026. Follow him at Twitter.com/mgafni.
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