The $18.3 million Northern Piedmont Federal Credit Union in Warrenton, Va. will be the first to receive restitution payments over the NCUA's restitution claim stemming from the Lynrocten Federal Credit Union $11.7 million fraud case, a federal judge ruled last week.
Last month, 64-year-old Linda Sue Newcomb, the former president/CEO of the failed Lynrocten FCU, was sentenced to 10 years in federal prison by U.S. District Judge Norman K. Moon in Lynchburg, Va.
She pleaded guilty to embezzlement, bank fraud and aggravated identity theft charges in a $10 million loan fraud scheme that led to the May 2013 collapse of the Lynchburg, Va.-based cooperative.
And in March, 60-year-old Teresa Humphries, a former teller, was sentenced to 40 months in federal prison for her part in the fraudulent scheme. She pleaded guilty to one count of embezzlement in January 2014.
Judge Moon ordered both women to pay restitution of $9.3 million to the NCUA, $1.6 million to Northern Piedmont FCU and $675,000 to Cumis Insurance Society Inc.
Some of the restitution funds are expected to come from the sale of Newcomb's and Humphries' assets.
As part of Newcomb's plea agreement, she has forfeited a 2011 GMC Sierra truck, a $75,000 retirement account, three properties in Madison Heights, Va. and 14 acres along the James River in Monacan Park. Although Humphries also agreed to liquidate assets, none were specified in her plea agreement.
Those assets are expected to generate an estimated $550,000 to $600,000, according to R. Johan Conrod Jr., a Norfolk, Va.-based attorney who represents Northern Piedmont FCU.
The NCUA requested that Judge Moon order a pro rata distribution of the restitution funds, which means the funds would be distributed in proportion to the amount of the court ordered restitution to be paid to the NCUA, Northern Piedmont FCU and Cumis.
Northern Piedmont FCU, however, asked that Judge Moon decline the pro rata distribution order of the restitution funds.
If the restitution funds would have been paid on a pro rata basis, that would have meant Northern Piedmont FCU's percentage of the restitution funds would be only 14% of the estimated $550,000 to $600,000, Conrod explained.
"We objected to that pro rata distribution," he said. "We made a couple of legal arguments and we also made the argument, which the judge based his ruling on. Under the restitution statue when there is more than one victim the court has the authority, based on the equities of the case, to essentially order that the restitution be divvied up in a way [the court] thinks is fair."
From October 2009 to October 2011, Newcomb negotiated and entered into loan participation agreements with Northern Piedmont FCU. In these loan participation agreements, however, she included false loans, including three loans she put in the name of a deceased member, according to court documents.
The value of the fraudulent loans involved in the loan participation agreement was $1.6 million. To date, the credit union has not recovered any of those funds.
To remain financially viable, Northern Piedmont FCU was forced to sell its main office building and lay off employees, and its then president/CEO Marsha Borland took an early retirement so the credit union would be relieved from paying her salary.
"I find that restitution to Northern Piedmont takes priority and that restitution to the NCUA is subordinated to Northern Piedmont's claim," Judge Moon wrote in his opinion. "The equities here favor Northern Piedmont, as its economic circumstances will be significantly aided by the recovery of those funds, whereas the NCUA does not face these kinds of economic circumstances."
He also said that the crimes committed by Newcomb and Humphries inflicted a significant financial impact on Northern Piedmont FCU and that the NCUA's economic circumstances stand in sharp contrast to Northern Piedmont FCU's financial vulnerability.
In fact, Judge Moon noted that the NCUA classified Northern Piedmont FCU as undercapitalized in 2014 and required it to submit a net worth restoration plan.
Ironically, Judge Moon's ruling revealed that several years ago the NCUA determined Northern Piedmont FCU earnings were too low and recommended the credit union enter into loan participation agreements with other federal credit unions to boost earnings.
Shortly after that NCUA recommendation, Northern Piedmont FCU learned from an outside auditor that Lynrocten was interested in teaming up with other credit unions for loan participation agreements.
After Northern Piedmont FCU held negotiations with Lynrocten, and performed its due diligence, which included reaching out to the CEO of another credit union that had entered into loan participation agreements with Lynrocten and experienced good results, Northern Piedmont FCU signed the first of three loan participation agreements with Lynrocten.
Over the next couple of years, Northern Piedmont FCU executed additional agreements and wired more than $3 million to Lynrocten.
NCUA Public Affairs Specialist John Fairbanks said the federal agency is reviewing the court's decision.
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