Federal charges filed against a man that involved a Cape Coral property were recently dismissed.
On Sept. 11, the U.S. Attorney's Office for the Middle District of Florida requested that the pending indictment against Tobias Kurz be dismissed without prejudice. According to court records, additional information indicated "there is insufficient evidence to prove the charge beyond a reasonable doubt."
U.S. District Judge John Steele signed off on the order requesting the dismissal.
Officials with the Middle District of Florida declined to comment further on the case Tuesday.
Defense attorney Robert Perez, of Coconut Grove, Fla., represented Kurz.
"This was a long drawn out process that took its toll on my client. Basically, it put a hold on his life for two years," he said Tuesday. "It was a long time having this hang over his head."
In December 2010, Kurz was indicted by a grand jury for bank fraud and mail fraud. He allegedly defrauded two financial lenders out of about $3.27 million in a scheme that involved two companies and a piece of property in the 3100 block of Southeast 22nd Place, documents reported at the time.
Kurz bought the waterfront property in the Cape in February 2005 and was apparently approved for a $1.5 million construction loan at the time from Horizon Homes Loans. Almost two years later, Kurz was approved for a replacement construction loan from Century Bank that totaled about $1.77 million.
On both loans, Kurz noted that he and his wife had a combined monthly income in excess of $54,000, and that he had no business relationship with the builder contracted to build a home on the property.
Federal prosecutors argued that Kurz's statements were representations that he "knew were false."
Perez said the case boiled down to whether Kurz lied on his 1003 - the mortgage application.
"What was not clear, and he was never given any instruction from his lender or mortgage brokerage firm, was what was the income to put," he said.
About a year and a half after refinancing with Century Bank, Kurz could no longer afford to make the interest payments on the loan, and he still did not have a certificate of occupancy for the residence.
"When they (the lenders) looked at it, they pulled my client's tax returns. The tax returns don't reflect what the gross income is," Perez said. "They never looked at his bank statements."
The Lee County Sheriff's Office was notified when disparities were observed in Kurz's application. Perez explained that the LCSO investigator also was not thorough when comparing the numbers.
"He looked at it only from the perspective of the net income does not match what was in the 1003," he said. "It's a completely different way of evaluating it."
"Once we got to the bottom of the numbers, we felt very confident in our defense," Perez added.
Asked about Kurz's reaction to the dismissal, Perez said his client is relieved.
"It was a difficult process, but he's very thankful that the justice finally came through at the end," he said. "We felt that justice has been served."
He explained that the legal process has not been easy for Kurz, who lives in North Carolina with his wife and child. At the time of his arrest, Kurz was working with a development to bring in prospective buyers. When the developers learned about Kurz's indictment, they terminated the contract with him.
"Because of this being in the area that he works in, real estate, he's not been able to work since his arrest," Perez said. "He hasn't had an income in over two years."
He added that Kurz has also suffered health issues related to the case.
"He had a heart attack when he got arrested," Perez said.
Because the dismissal is without prejudice, the U.S. Attorney's Office can refile the case within the statue of limitations. According to Perez, the statue of limitations extends until December 2016.
"It would be highly unlikely, highly unusual," he said of the case being refiled.