Who Are the Tubins & Why Are they Here?

For the second time, fellow blogger David Berman finds it strangely necessary to make an issue of the timing of my recent publication concerning our new restaurant operators and calling particular attention to the fact that I did not attend the Thursday evening Town Chat that was initially scheduled to feature Audra Tubin. And finally, David voices his harshest judgment that the publication of my article was nothing more than a “defamatory hatchet job.” In making that allegation, I believe it was David who has defamed me.

I will attempt to explain my actions, provide some additional information about the Tubins, restate some of my concerns, and express the hope that board will not turn a deaf ear to what I see will be adverse consequences resulting from this unplanned and unexpected change in restaurant ownership.

Despite David’s observations, there are quite reasonable explanations for my actions. As a somewhat frequent patron and supporter of the restaurant, I find myself in the unusual position of being attacked for being unfair to our new restaurant owners. Why would I do that? Why would I be so unfair to someone that I and others barely know? On second thought, perhaps that’s my problem; I really do not know the Tubins nor do I understand what really brought them to Sun City Anthem when they first appeared at Tirzo Hernandez’ doorstep with an offer of financial assistance he could not afford to refuse.

It seems to me that David and others are either indifferent to or do not care to have those questions answered. To them, the only issues are the price of the meal, taste and service; everything else is immaterial. In his efforts to protect the interests of our new restaurant owners, David is indirectly protecting the decision makers that took the actions they did to sanction the Tubin's presence here. While we all would like to have the restaurant succeed, I believe the presence of our new owners will eventually result in unintended and unacceptable consequences for the association.

Here is an interesting example of one possible consequence. In looking at the Trusts' numerous writs of garnishment, that is, collection efforts in 2010 to various companies that might be holding Tubin monies, it may not be long before the Trust latches on to the existence of any newer Tubin-owned business, like TNF Holdings DBA the Anthem View Restaurant. The Laborers Joint Trust Funds has been reaching out to find and collect monies that were awarded them against Atlas Construction Clean Up, Inc., in a district court Judgment entered in the amount of $243,875.02 on 13 October 2009.[1]

Then again, if the Tubins money had been safely invested here in Audra's name only, as it was in TNF Holdings, perhaps that Tubin money is unreachable by the court through the efforts of the Trust. Whether the Tubins were hiding assets here to thwart those future collection efforts is a matter for the court to determine. More than any other explanation, Audra's inclusion as the sole Tubin owner may explain why Keith Tubin's name does not appear as an officer of the restaurant's corporation, given that Keith would appear to be an owner of Atlas Construction Clean Up, Inc.

Getting back to David's "hatchet job" allegation, to make that “hatchet job” allegation stick, David must have some special knowledge about the Tubins that has yet to be disclosed. Such knowledge, if it exists, would allow David to conclude that what I wrote about the Tubins was fundamentally unfair. Was it wrong of me to call attention to the relationship between Audra’s husband, Keith, and “uncle”[2] Brad, who was arrested by the FBI for allegedly committing mortgage fraud? I don’t think so. On the other hand, did Bradley’s arrest mean that Keith had also committed mortgage fraud? No, as I had stated.

However, given available information about the Tubins, the real question is whether a reasonable person might come to that conclusion, namely, that the commission of mortgage fraud by Keith Tubin was a possibility, however slight that possibility might be. It wouldn't be out of the question for someone to put Keith's colored past, easy money, a windfall, a depressed real estate market, multiple owned properties, and "uncle" Brad willing to give some advice to come up with a possible mortgage fraud scenario.

Some may believe that possibility was a leap of poor judgment on my part. While that may be true, I disagree. Admittedly, we’d all prefer to know that Keith Tubin never committed mortgage fraud or any other wrongful act. In fact, there is no evidence that Keith committed mortgage fraud. On the other hand, I believe the perception of wrongdoing increases if there is evidence of past wrongdoing. As flawed as that thinking may be, that’s human nature at work. However, the perception of wrongdoing does not validate or make the perception of wrongdoing true.

Fortunately, in the case of the Tubins, we do have an array of remarkable events to evaluate some of the Tubins past conduct. Taken in isolation, though, each event likely has no particular weight in predicting the probability of future behavior. However, if we consider all such events taken as a whole, our Sun City homeowners might be able to form a reasonable judgment about one’s possible conduct. That judgment, whether accurate or misplaced, does not make the Tubins guilty of anything. It merely suggests only a degree of likeliness, or probability, to engage in wrongful behavior.

What unusual circumstances am I referring to? Here is a partial list of what is known:

Clearly, under the above set of circumstances, David’s “hatchet job” characterization of my prior Tubin article is itself unfair and therefore must be considered defamatory.

What surprises me about the fuss that David has made is that he has demonstrated no interest in promoting the community’s integrity or, for that matter, the board’s fiduciary duty to protect the interests of the homeowners. True, David, like others, equates the restaurant's future success with a positive cash flow and net income to the association; if the restaurant succeeds, we all benefit.

But where is the outrage about the apparent failure of the new owners to fully disclose their circumstances; about the board being trapped into accepting an after-the-fact arrangement they had little control over; about the board being misled; about the board’s failure to adequately investigate or vet the new owners; and about the failure of the board to adequately inform the community? Instead, David Berman is outraged over the disclosure of the new owner’s illegal business practices, or the possibility that they may have engaged in questionable activities similar to those engaged in by "uncle" Brad. Where in the world did I ever get that idea?

Do you believe it was just by chance that the Tubins just happened to appear on our doorsteps with a bundle of cash to invest at the same time that the FBI was gathering evidence that led to the indictment of “uncle” Brad for mortgage fraud, or the presence of ongoing legal efforts to recover monies owed by Tubin-owned companies under federal statutes designed to protect employee health & welfare benefits? You may believe that their arrival here was by chance or, as some, you simply don’t care what brought the Tubins to Sun City Anthem. If that chicken salad is reasonably priced, looks appetizing and is tasty, that’s all that really counts. I, on the other hand, find it difficult to believe that their sudden arrival here was a mere coincidence to the events that were then swirling around the Tubins.

Then again, perhaps this experience is the real price the community must pay for the admittedly faulty restaurant search process that was led by Roz Berman and Dan Forgeron. That ill-fated process resulted in the selection of someone who quite soon proved to be financially ill prepared to assume the role of a qualified restaurant operator.

Today we have an example of what in the public realm might be called gross malfeasance. For example, and unfortunately, new lease arrangements were readily adopted with undue haste, perhaps out of a blind sense of necessity; they were adopted with inadequate information about our new restaurant owners; and adopted without having reliable information about the sources of funding and accurate financial disclosures. Contrary to the views of some, the situation the community and the board finds itself in is really more than about whether the food and service are good.

Admittedly, I was a little slow in informing the community about potential concerns, but that’s not unusual nor is it something significant to muse over. All I can say about the timing was that I was a day later than I had initially hoped in posting the restaurant article on the website. So, it got posted Thursday instead of Wednesday. Given that the Tubin-related news circulating in the community did not first appear in the newspaper until the weekend prior to the Town Hall Chat, my subsequent follow up that same week would not seem that unusual, except perhaps in David Berman’s mind. David suggests that my awareness of the Town Hall Chat with Audra Tubin that Thursday influenced my decision to publish when I did. As it turned out, I published as soon as I was ready to publish. The fact of my publication and Audra’s restaurant unveiling had been already scheduled for Thursday was accidental, although some may view that coincidence as a fortuitous outcome. True, I was guilty of knowing about that planned event.

Even before the appearance of my article, unfounded rumors were circulating in the community concerning the Bradley Tubin arrest and what implications that might mean for the future of the restaurant and the board’s after-the-fact vetting process of the new restaurant owner-operators. I say unfounded rumors since initially there was no information out there that tied Bradley Tubin to Audra or her husband, Keith Tubin. That unknown piece of information, however, did not dissuade others in the community from engaging in such speculation. Given the unusual last name, however, it was not unreasonable for some to assume that the two were related by family and that relationship posed a possible concern if not a potential threat to the future of the restaurant.

However, it was only after some investigation on my part that I was able to confirm that Bradley and Audra’s husband Keith were in fact blood related and that the rumors of a family relationship had some basis. However, what that relationship consisted of remains unknown. What I was able to determine, as reported, is that both Bradley and Keith-Audra had actively engaged in a variety of real estate transactions involving multiple owned properties, based on an online search of publically available Clark County records, which anyone can perform at no charge. That initial Link to gain further access to the County’s search page is: http://recorder.co.clark.nv.us/oncorewebecommerce/ Then at the bottom of the page, Click on the "I accept . . ." box

As I had indicated, the existence of that similar real estate practice of owning multiple properties standing alone means little other than having engaged in real estate investment opportunities. In fact, it is not uncommon for Sun City homeowners to own more than one property. As far as investing in foreclosed properties is concerned, following my late father’s retirement as a home builder, he briefly joined with a friend, who was already in the real estate business, to buy and sell distressed properties. But the real esate market was significantly different in California in the 1960s than it is today. So that established real estate practice is one that is not unknown to me. However, what is new in this depressed real estate market is the practice of some to engage in what the federal government refers to as mortgage fraud, which IRS defines and illustrates at the underlined Link.

Another of David’s points concerned my acknowledged failure to attend what turned out to be Keith Tubin’s presentation of their newly named restaurant, the Anthem View Restaurant. While I had prepared to attend, my plans were interrupted by another event that afternoon and a subsequent telephone call that questioned whether the planned Town Hall Chat that Thursday evening would take place.

As many homeowners are aware, there was the usual Current Events Club meeting on that Thursday afternoon at a time which coincided with the monthly board meeting. One of the topics discussed was my early morning posting of information regarding the news of the arrest of family related Bradley Tubin for mortgage fraud and of the existence of ongoing litigation in federal district court against the Tubins and their Painting & Drywall company for their alleged failure to pay health and welfare benefits into a number of union trust funds.

That discussion was subsequently interrupted following the entrance of Jack Troia and Roz Berman. According to David Berman’s blog, this is what transpired:

Compared to David's rendering, others who were actually in attendance have a quite different recollection of events. First, there was David's glossed over question of who actually made the decision for Audra to not attend that evening's event. Second, there was a question of when the decision was made for Keith to attend in Audra’s place. Rather than Audra making that decision, some recall learning that Audra was specifically told by Troia-Berman not to attend that evening, thereby protecting Audra from a possible lynch-mob attack. As to whether the decision to replace Audra with Keith was made at the same time or later is not clear.

While David limits his overview of the confrontation at the Current Events meeting to the existence of a “shouting match,” others were inclined to be a bit more descriptive. Apparently Jack Troia was so incensed at one point, he rose from his chair and moved towards one club member as if he were going to strike him, but then, presumably catching himself, he relented. Some recall that Jack’s unexpected move towards one member in turn prompted others to focus their physical attention on Jack, possibly placing Jack in harms way. In the end, no one was physically harmed. Fisticuffs is not yet a sanctioned event for the Current Events Club.

Whether anyone assaulted another at the Current Events meeting is a matter of law. According to Nevada law, the term “assault” can mean the following: “Intentionally placing another person in reasonable apprehension of immediate bodily harm,” under NRS 200.417(a)(2). Under that definition, it is likely that an assault did in fact occur.

Some members present at that meeting clearly remembered being told that the evening’s Town Hall Chat meeting was cancelled. Others, however, have no such recollection. I was contacted by a member who was present and was told that the evening’s Town Hall Chat meeting was cancelled. As a result of that call, I did not attend. I understand that Jack and Roz were present to assure that only future restauant plans were the subject of any questions from the audience.

If the meeting had been cancelled, some expected an email blast to inform the community. Failing to receive such an email cancelling the meeting, some of those in attendance at the Current Events meeting attended the Chat meeting. Given the late hour after 4:00 p.m., the likelihood of reaching those planning to attend was doubtful. The absence of such an email was no assurance that the planned event would take place.

One thing was certain, though, there was no mention at the Current Events meeting that arrangements had been made for Keith Tubin to replace Audra Tubin. That decision would appear to have been made later.

So, here we are with Keith Tubin, active and knowledgable while nicely hidden behind the restaurant's corporate veil, presumably calling the shots on what ultimately happens. If we had a bona fide restaurant operator in control, there's at least a chance that we would have a modicum of assurance on how things were being financially managed. With the Tubins in control, that not clear. For example, there are already alarm bells going off alleging financial irregularities on tax related issues. Hopefully, those issues will be resolved by the taxing authorities. Then again, those matters are outside of the association's control to investigate. In the near future, though, the Tubins may be faced with a background check as a result of their application for a liquor license. One assumes that should not pose a problem.

Board members are cautioned to be alert to what's going on and to ask questions. Merely leaving possible issues for others to handle is not sufficient and, in large part, explains how we managed to get where we are today. The refrain, "we tried and did our best under the circumstances," fails to address the underlying problems that we will eventually face if this matter continues to linger on. If you do not perceive a potential problem looming now, I am led to believe that others do. The community needs to be properly informed. Unfortunately, those who have the capacity to lead in this matter are the least likely to want to do so. In that event, the Tubins will be grateful for the board's continued support.

If anyone is interested in viewing the documentation referred to in this article, please let me know and I'll see if I can help you.

^[1] The legal action was filed on behalf of the Trustees of the Construction Industry and Laborers Health and Welfare Trust, et al. Source: Court records, as of December 2009 through 3/9/2010, against Atlas Construction Clean Up, Inc., a company that was formed in 2003 by Ernest Cortez and Keith Tubin. Available court records reflect one payment of $54,951.02. [Click the Return button to go back to the original page.]

^[2] The term “uncle” is in quotes to designate one of a number of possible familial relationships between the two; an uncle, in most instances, is typically the older of the two, knowing here that Bradley is 15 years older than Keith. [Click the Return button to go back to the original page.]

^[3] The total is estimated to be roughly $400,000, based on the initial court judgment (Laborers Trusts) plus an estimated amount pending final audit for the Painters Trusts, subject to applicable credits (payments), plus interest, accrued costs and fees and commissions and costs until the amounts are finally paid. [Click the Return button to go back to the original page.]