Formerly homeless man wins case against investor
John Henry Wenk seemed like the last guy who could stand up for himself.
The brilliant but troubled MIT graduate — fond of quoting Latin and bringing his own swivel chair onto the T — had drifted from shelter to shelter for years after controversial investor Brian R. Burke bought his house in Brighton in 1997 and then failed to pay him. Wenk barely put up a fight.
But last week, after pro bono attorneys took up Wenk’s cause, a Suffolk Superior Court judge ruled that Burke deceived Wenk, setting up the eccentric 75-year-old for a potential $1 million payday.
“The race is not to the swift, nor the battle to the strong,” wrote Wenk in an e-mail, quoting Ecclesiastes to describe his legal victory, adding “danke schoen,” German for “thank you.”
One of Wenk’s attorneys, David Kelston, was more blunt:
“Burke has an extraordinary history of taking advantage of vulnerable people. John Henry Wenk fought back and is winning. It’s great to see justice done.”
For Burke, 60, Judge Mary Ames’s ruling was a sharp rebuke to business practices that have made him the target of at least 10 lawsuits by people who say he cheated them — and one by state tax collectors who say Burke paid his taxes only once in the past decade.
Ames suggested that Burke and his attorney intentionally failed to notify Wenk when they filed a lawsuit that would let Burke avoid paying most of the $401,000 he had promised for Wenk’s house.
“The record suggests that Burke and [attorney Kevin] Kerr were going out of their way to avoid serving Wenk in a meaningful fashion or otherwise alert him to the existence of the present lawsuit,” wrote Ames, who tossed out an earlier ruling supporting Burke’s lawsuit, saying she was “troubled” by it.
But Burke was unbowed, insisting during a brief telephone interview that he will win on appeal.
“The weight of the evidence is in our favor,” he said, referring to the lawsuit against Wenk that he filed in 2000. “That was something that happened 16 years ago. It’s ancient history. If a trial is necessary, there will be a trial.”
Kerr did not return calls seeking comment.
The showdown over Wenk’s former property at 38 Englewood Ave. in Brighton was an outgrowth of another fight, this one between Burke and the family of a wealthy Brookline property owner, Morris Stern. Stern’s family alleged that Burke essentially stole two brownstones worth $4.5 million by presenting a fake deed for the buildings. After the Stern family went to court to try to prove the fraud, Burke returned the buildings — but not before collecting $300,000 from the Stern estate to settle the case.
A Globe review of lawsuits involving Burke revealed the investor’s old case against Wenk, which claimed Wenk owed him from a legal dispute related to the sale of Wenk’s house. The record showed Wenk never showed up and the judge found in favor of Burke in 2003, awarding him $1.2 million and wiping out his debt to Wenk.
The Globe then tracked down the elusive Wenk, contacting homeless shelters around the city before locating him through the MIT alumni office.
Wenk, a mathematician who has a master’s degree from the Massachusetts Institute of Technology, freely admitted he was having emotional problems at the time he sold his house to Burke. The home had been heavily damaged by a fire 10 years earlier, but Wenk was still living at times in the house, with no plumbing or electricity, as well as in homeless shelters or with friends.
When city inspectors ordered him to repair or sell it, he made a deal with Burke that called for Burke to pay $10,000 up front and to pay off the remaining $391,000 over 15 years. With interest, Burke should have paid Wenk $3,587 a month — with an additional payment of $196,000 at the end of the 15 years. There were also substantial penalties for late payment.
But after receiving a $10,000 down payment, Wenk got nothing more.
“I was really out of it at the time,” said Wenk, who remained homeless for years after the sale until moving into senior housing around 2002. “He knows how to work the system. He gets away with an awful lot.”
Wenk was initially suspicious of any efforts to recoup his losses, but Kelston and a second attorney, Peter Fenn, eventually persuaded him to let them go to court to have the 2003 judgment against him invalidated. And Wenk turned out to be a good client: He remembered details from years ago and he helped the lawyers put together their case. He showed up for every court hearing, despite his deteriorating health.
The case became a magnet for people who said they, too, had been victimized by Burke, several of whom attended an April hearing to root for Wenk.
They included Burke’s own sister, Maura, who said she was financially ruined after her brother dragged her into a bad real estate deal. She hadn’t spoken to him in years and started shaking when she saw him. “I can’t look at him. I’m afraid I’ll throw up,” she said, then began to sob.
When Burke saw her, and the others, he turned white.
Burke wouldn’t discuss the alleged victims’ appearance in court.
At the hearing, Burke’s attorney, Kerr, argued that he tried to notify Wenk when Burke filed the lawsuit against him, but Wenk had a “history of living off the grid” and an “attitude of secrecy” that made him difficult to find. Kerr said he sent legal papers to the Pine Street Inn homeless shelter where Wenk, he said, was staying.
But Wenk’s lawyers said he never received the legal papers. They noted that Wenk used an alias when he stayed at homeless shelters, so shelter staff would not have known “John Henry Wenk” was him. Because Wenk never received legal notification, they argued, he never had a chance to defend himself.
In her 16-page decision, Judge Ames found that Burke and Kerr used deception to avoid paying Wenk. Kerr, she noted, never contacted Wenk’s attorney of record about the lawsuit or sent the legal papers to a New Hampshire address that Wenk had used in previous legal cases.
Ames said that sending legal papers to a homeless shelter is “inherently suspect” and rarely acceptable, especially when Kerr had other ways to reach Wenk.
She also dismissed Kerr’s argument that Wenk had waited too long to raise objections.
“The court concludes the motion was brought within a reasonable time and that justice requires that the default judgment be vacated,” wrote Ames.
Wenk’s lawyers say they will now move to foreclose on the property, which today is assessed by the City of Boston at $1.34 million. That will involve taking and selling the property, which Burke long ago transferred to one of his sons. Because Burke didn’t pay the mortgage, Wenk can now foreclose on the property, becoming the owner. He would then get whatever the property brings in sale.
“He won everything. He’s 100 percent vindicated,” said attorney Fenn. “Now we just have to collect.”