Nathan Hardwick enters the Richard B. Russell Federal Building and U.S. Courthouse in Atlanta in his trial on charges of embezzlement. (Photo: John Disney/ALM)

Nathan Hardwick IV unexpectedly took the stand on Tuesday in his federal embezzlement trial in U.S. District Court for the Northern District of Georgia after his lawyer, Ed Garland, had told the judge last week that the defense might rest its case after Friday's testimony.

Garland's examination of his client went for almost seven hours in Judge Eleanor Ross' courtroom and was scheduled to continue Wednesday morning.

The government has accused Hardwick of embezzling $26 million from his now-bankrupt residential real estate firm, Morris Hardwick Schneider, from 2011 to August 2014, when escrow account shortfalls came to light. Hardwick, who owned 55 percent of MHS, ran the Atlanta-based closing operation while brothers Mark and Gerard Wittstadt, who owned 22.2 percent apiece, ran the separate default operation from Baltimore.

Prosecutors also indicted the closing operation's former controller, Asha Maurya, as a co-conspirator, alleging that Hardwick directed her to wire millions of dollars from MHS's escrow and operating accounts to pay his bills to casinos, private jet companies and to his personal holding company, Divot Holdings, which he then re-routed to bookies, creditors and women.

Hardwick is charged with 24 counts of wire fraud, wire fraud conspiracy and making false statements to lenders.

Maurya, who has admitted to stealing almost $900,000 from MHS, pleaded guilty to a single count of wire fraud last year and is cooperating with the government, but prosecutors did not put her on the stand. Garland of Garland, Samuel & Loeb has maintained that Maurya was the sole culprit for MHS's almost $30 million in escrow shortfalls, not his client.

Garland covered a lot of now-familiar ground over Hardwick's day of testimony, including his marketing and client development activities, personal debts, partnership with Art Morris and Randy Schneider and then the Wittstadts and working relationship with Maurya. Hardwick also gave his account of events from the June 2014 discovery of a falsified bank statement and then millions in escrow shortfalls, through his forced resignation from the firm two months later.

MHS's main title-insurer, Fidelity National Finance, in mid-August 2014 agreed to keep insuring MHS as a title agent and to cover the escrow shortfalls—ultimately spending almost $30 million—in exchange for Hardwick giving up his 55 percent stake in the firm and resigning.

'Face of the Firm'

As “the face of the firm” for MHS's closing side, Hardwick said, his purview was marketing, customer service and the overall expansion strategy, and he was not involved in the accounting.

“In the closing business, every lawyer is the same—with the same office, same computers and same candy,” Hardwick said, so clients “hire the people they like.”

“My goal is to make every person my friend,” he said, which meant a lot of entertaining. His schedule was crammed with breakfasts, lunches and dinners with clients and prospects and he frequently hosted them at golf events.

Garland suggested to the jury that Hardwick had no motive to steal from his firm, because it was doing well and he had ambitions of taking it public.

“I loved my firm,” Hardwick said, adding that he planned to give employees stock options if the goal to go public came to fruition. “All these people who'd worked hard and put their lives, hearts and souls into it. I wanted them to get the reward.”

“I thought we had a bright and lucrative future,” he said.

Hardwick said he had no intention of stealing from his partners. “My intention was to make a lot of money for my partners.”

Took His Own Money

Hardwick said the millions he received from the firm—$18.5 million for payments to casinos, charter jet companies and women alone that the government has documented over the charged period—was money he was entitled to in distributions. As an owner, he said, he did not think he was doing anything wrong to take money from his firm to pay his own bills.

The defense called the money that Hardwick received from the firm “distributions,” but they used the term broadly to mean any money the firm paid out to an equity partner—not a profit distribution.

“How do you feel about how you spent your money?” Garland asked Hardwick.

“Looking at the numbers so nicely compiled by the government,” Hardwick replied, “[...] My spending is not something I'm proud of.”

“I wish there were things I hadn't done,” as to how he spent the money, Hardwick told the jury. “But it was my money, and I could spend it however I wanted.”

Hardwick said he did not keep track of how much money his distributions totaled, adding that that was the accounting department's job.

The prosecution has shown the jury copious financial records and emails to document that Hardwick asked Maurya to wire payments directly from MHS to casinos and charter jet companies.

According to the government's documentation, Maurya used the firm's IOLTA wire account for most of them, but Hardwick testified that he didn't even know the wire account even existed.

“I trusted my people—to my detriment,” Hardwick said, adding that he thought the payments Maurya was making for him came from the operating account.

Ample Cash Flow

Garland walked Hardwick through each of the wire fraud counts and compared the amount wired from the firm at his direction to pay his personal bills with its cash flow on the same date.

On each date, Hardwick testified, the firm had several million dollars in available cash—plenty to cover his requests for distributions ranging from $100,000 to $500,000.

To determine MHS's cash flow for each date, Garland told the judge on a break when the jury had been sent out of the room, Hardwick last weekend had looked at the firm's daily “dashboard” record of operating account balances for those dates and added together three items: cash on hand, total available cash and the balance for the foreclosure side's credit line, backed by its accounts receivable.

The judge allowed Hardwick to use an Excel spreadsheet record of his calculations on the stand over protests from prosecutor J. Russell Phillips, who said the defense had given the government the document only that morning.

For each date of alleged wire fraud, Garland showed the jury the MHS summary dashboard record for that day, and then Hardwick told them how much “available cash” the firm had.

For instance, Hardwick said, when he asked Maurya to wire $350,000 from MHS to the Cosmopolitan casino in Las Vegas, the firm had about $2.4 million in “cash available.”

That showed there was “plenty of money” in the firm's operating accounts to distribute to the partners, Hardwick said. “I thought the [other] partners were getting their share. I had no idea there was anything wrong when this whole thing blew up.”

He added that, when he asked Maurya for a distribution, “she'd always tell me there was plenty of money available.”

On June 30, 2014, right before the escrow shortfalls were discovered, a separate mini-balance sheet reporting MHS's cash on hand, receivables and expenses that Hardwick told the jury Maurya regularly prepared for him while Garland showed it to them, reported that the firm had $3.4 million in cash flow.

“We had audits [from the firm's title-insurers] all the time, so I would have thought that would have caught some of this stuff,” Hardwick added.

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