Published: Thursday, May 21, 2009 at 1:00 a.m.
Last Modified: Wednesday, May 20, 2009 at 10:49 p.m.
SARASOTA - This month, a federal judge told John Yanchek that he did not appear cut from the "cloth" of a fraudster as the Sarasota attorney awaited his sentence for his part in the largest mortgage scam in Southwest Florida history.
But it turns out that as Yanchek begged U.S. District Court Judge James Whittemore for leniency, the 49-year-old attorney was facing the third effort to remove or suspend his law license.
The latest Florida Bar case surfaced in recent weeks, this one filed by a 73-year-old Fort Myers woman who claimed Yanchek thwarted her efforts to file a malpractice suit against a doctor who she says misdiagnosed back problems when X-rays showed she had a broken hip and fractured pelvis.
In August, a Florida Bar referee recommended that Yanchek be suspended from practicing law for two years after the lawyer admitted he engaged in mortgage fraud and lied about escrow funds.
The five-year prison sentence that Whittemore gave Yanchek -- at the low end of sentencing guidelines -- also meant that as a felon, Yanchek would lose his right to practice law.
Yanchek, who pleaded guilty to three counts of mortgage fraud and money laundering, was the second person sentenced in an $83 million crime spree purportedly engineered by former Sarasota resident Neal Mohammad Husani.
Three years before his work with Husani, Yanchek agreed to take on the case of Joyce Muschitiello after she said she discovered that her Fort Myers physician had been treating her for the wrong injury. But Yanchek failed to file the necessary paperwork and the lawsuit was twice dismissed, according to a Florida Bar investigation.
As a result of his inaction and false statements to both his client and the Lee County Circuit Court, the Bar found Yanchek guilty in December of violating rules regarding competence, candor and fraud. Because Yanchek had been found guilty in the previous Bar complaint, Referee Mike Carr recommended disbarment in the Muschitiello case.
That latest case is now sitting with the Florida Supreme Court, where justices will decide how Yanchek is to be disciplined.
Yanchek did not try to fight the recommendation. Knowing he was about to lose his law license for the fraud conviction, he simply filed a "disbarment on consent" memorandum in April, which gave the Bar the right to disbar him at any time.
Muschitiello, Yanchek's Fort Myers client, said she hired Yanchek in November 2003 after she discovered that her Fort Myers physician had been treating her for the wrong injury.
"I had fallen and went to a doctor," Muschitiello said. "He began treating me for my back and kept giving me pain pills, but I still suffered from excruciating pain."
Muschitiello decided to get a second opinion, which showed that she not only had a broken hip but her pelvis was fractured. "I had never sued anyone in my life," she said. A friend recommended Yanchek.
"I only met him a couple times and I thought he was a nice guy," Muschitiello said. "He said I had a very good case and could expect a six-figure settlement."
Based on Yanchek's assessment, Muschitiello refinanced her house and took on $60,000 in debt she cannot afford.
Yanchek did file a lawsuit on her behalf, but he failed to include an affidavit from a doctor describing the merits of Muschitiello's claim, as required by law. As a result, his original lawsuit was dismissed.
A month later, Yanchek filed an amended lawsuit, stating that an affidavit had been ordered and would be filed as soon as it had been received.
But Yanchek's claim was not true, the Bar referee said in his report. In fact, Yanchek did not order an expert affidavit until six months later, and when it came back it did not support Muschitiello's malpractice claim.
By that time, the statute of limitations under which Muschitiello could file a lawsuit was running out. But Yanchek did not try to get a fresh affidavit and Muschitiello's lawsuit was dismissed once again, the referee's report states.
Instead of telling his client what had happened, Muschitiello said Yanchek led her to believe that the case was moving forward. "I didn't know the lawsuit had been dismissed until a friend told me," she said.
In Yanchek's sentencing on the federal charges this month, Judge Whittemore opted for leniency. The judge said he considered both the scale of Yanchek's crimes and the fact that they could not have been accomplished without his skills as an attorney.
But Whittemore concluded that Yanchek was not a pathological criminal bound to commit fraud, but was simply a man who had chosen the wrong path.
"People who are bent on committing fraud will do it no matter what," Whittemore said. "They will lie to banks and steal from banks because it is in their moral fiber and nothing I can say will deter them. I don't think you are cut from that cloth."