Sentencing in 4949 Swiss Ave. estate looting case offers interesting insight (TX)

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With yesterday’s sentencing of antique dealer Mark McCay, Dallas’ 4949 Swiss Ave. case involving the estate of Mary Ellen Bendtsen once again distinguished itself as an important example of the threats facing an unsuspecting public with regard to financial predators savvy at using probate venues and/or related legal instruments (wills, trusts, guardianships or powers of attorney) for their own enrichment by diverting assets from intended heirs and beneficiaries.  A June trial in which a jury of 10 women and two men found McCay guilty of attempted theft of more than $200,000 brought a conviction with up to 20 years potential prison time.  Instead, state District Judge John C. Creuzot handed down a sentence of four years probation, 30 days in the county jail and a $1,000 fine.

Don’t mistake this sentence as reflective of a poor job on the part of Dallas County prosecutors.  At issue is if McCay and two other defendants – his partner Justin Burgess and now-disbarred attorney Edwin Olsen – conspired to exploit Mary Ellen Bendtsen’s declining mental (and physical) state so as to have her sign a will leaving the Swiss Avenue house to McCay and Burgess instead of her daughter, Frances Ann Giron. Bendtsen died in March 2005.

Both in trial and at the sentencing, McCay’s defense team provided a parade of witnesses testifying how McCay’s penchant for making friends comes from being a “helper and pleaser,” that “all he’s ever tried to do is help people” and how his heart is “as big as the state of Texas.”

His heart may be big as Texas, but per the Dallas County District Attorney’s office, so also is his appetite for involving himself, Burgess and Olsen in the financial affairs of the people – often elderly – he befriends.

Rather than a relationship akin to mother/son as the defense contended, lead prosecutor Donna Strittmatter and her team offered testimony that McCay spent years cultivating his relationship with Bendtsen and how the pair were often seen as a much-younger man working to ingratiate himself in a questionable manner that prompted suspicions of ulterior motives.

Again at both trial and sentencing, the prosecution provided witnesses with experiences over the last two decades in which McCay befriended elderly people and a financial involvement – often involving probate issues – would occur.

Our columns Mary Ellen Bendtsen estate case alleges conspiracy of exploitation, attempted 4949 Swiss Ave. theft by McCay, friends and Defense starts in 4949 Swiss Ave. estate case trial detail testimony from many of the trial witnesses.  The Dallas Morning News article entitled Swindler gets 30 days, fine provides an interesting overview of the sentencing hearing.

The mechanics of the 4949 Swiss Ave. case mirror estate looting actions seen across the country.  Targeting vulnerable parties, inciting family conflict, using isolation as a tool, taking advantage of a major health downturn – all familiar patterns.  Despite increasing numbers of questionable probate cases, this effort would have stayed largely unknown were it not for the flamboyance of Mary Ellen Bendtsen’s life and the historic 4949 Swiss Ave. backdrop.

In most probate abuse cases, “justice” requires a trip to the pay-to-play civil court system which routinely becomes cost prohibitive for heirs or beneficiaries with financial means along with also subjecting them to a new avenue of potential legal abuse.  Those without resources are largely left with no recourse.  Probate abuse perpetrators understand this reality.  The rarity of criminal prosecutions helps make such acts all the more appealing.  That 4949 Swiss Ave. offered opportunity for a meaningful response to such crimes made it all the more important.

Prosecutors asked for a ten year prison sentence claiming McCay’s past pattern of predatory behavior makes him a risk for future actions.  In regards to Bendtsen, he perpetrated a “theft of her dignity, theft of her right to die in peace, theft of her family’s ability to say good-bye.”

Bentdsen’s family spent the last decade working first to protect Mary Ellen Bendtsen and later their interests from Mark McCay’s intervention into their lives.  Frances Ann Giron, Bendtsen’s daughter, was moved to take legal action in the last months of her mother’s life when McCay’s seemingly predatory actions were perceived as escalating.  Upon her mother’s death, McCay’s continued involvement even complicated the family’s planning of funeral arrangements.  In the years following, his pursuit of Bendtsen’s estate ultimately yielded Giron’s inheritance rights being upheld in the Texas Supreme Court, but this was not an inexpensive path.  A court-appointed estate administrator generated an additional $120,000 expense for Bendtsen’s estate though the amount was ultimately reduced to $90,000.

Prolonged litigation caused missed opportunities in the sale of the 4949 Swiss Ave. property.  Between its ongoing decay and a downturned economy, the final sales price was considerably less than what it would have brought at the time of Bendtsen’s death.  As Bendtsen jointly owned the house with her sister and her late brother’s heirs, the impact of this situation extended well beyond Bendtsen’s immediate family.

The turmoil surrounding Bendtsen’s death and the ongoing litigation undoubtedly created an emotional toll for all involved.  Being targeted in an abusive probate action is a life-changing experience.  Henry McClamrock, Bendtsen’s nephew, testified to his own feelings of helplessness as events unfolded and how his mother stayed upset until her 2008 death over being kept from seeing Bendtsen during her sister’s final days.  The inability for closure with an estate brings additional strife.  That helplessness along with the anger, the frustration, the realization that legal and financial protections are far less than often represented – an emotional paralysis emerges and often never really goes away.

Though many of Bendtsen’s personal possessions along with antiques from the house reportedly disappeared upon her death, the defense postured for parole claiming McCay never received property from this offense.  That he was simply trying to fulfill Bendtsen’s wishes was all Mark McCay has ever been about.  Justin Burgess, McCay’s partner who also faces charges in the 4949 Swiss Ave. case, is in stage 4 throat cancer.  With McCay as the primary caregiver, sentencing alternatives were in order.  McCay’s need for alcohol abuse treatment along with having no prior criminal charges or convictions as well as no extraneous civil actions were additional factors the court was asked to consider.  While terming the state as pitching the worst case scenario, the defense countered that McCay has been on bond with the court for six years and that the court has had no problem.

One would have hoped that criminal prosecution in this matter would rise as a deterrent for disgruntled family members, wannabe heirs or unscrupulous legal industry practitioners involved with or contemplating similar actions.  Life isn’t fair, bad things happen – but some are highly avoidable.  Like probate abuse.

Prosecutors admirably did their job.  The trial jury “got” what happened and gave the judge opportunity to demonstrate Dallas County’s commitment to protecting its citizens’ liberty and property.  That commitment was communicated:  four years probation, 30 days in the county jail and a $1,000 fine.

Dallas County residents, take note.

Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture. She is the Online Producer at www.EstateofDenial.com, a Policy Advisor with Americans for Prosperity – Texas and a Director of Women on the Wall. Lou Ann may be contacted at info@EstateofDenial.com.

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