Fraud Act 2006

[Crapstone]

No it is the FSA (with Broons blessing) who sanctioned this behaviour Mention securitization to the OFT & they''ll probably look at you funny whilst wondering what your talking about

 

Yes, I was just wondering if I'd got that mixed up again.. OFT, FSA, FOS..too many abbreviations.. but they all still smell the same.. I was thinking last night if the practise could be seen as uncompetative by the OFT under the Enterprise Act 2002.

[enoughisenough]

Since we are all into acronyms has anyone considered this one? SFO.

[andrew1]

 

You just have to keep in mind that you are not just a debtor, you are also a consumer that has invested in a product which was sold to you. It didn't come free on the back of a cereal packet and as such you have a right to know.

 

The key question is if would have still taken out the mortgage if we had been fully aware of all the facts at the time? The answer would be no and the soundness and ethics of the company has to looked into the persuasive effect they had.

 

I guess you could also argue that you are a party to a contract between two parties and therefore have a right to know?

[enoughisenough]

I guess you could also argue that you are a party to a contract between two parties and therefore have a right to know?

 

My slightly different take on this is as follows. To be party to a contract it is insufficient (i think) to be contracted to something without your express consent.

 

None of us expressly consented to having our morgtages remortgaged and then remortgaged again.

 

It is the case that SPV and the Trustee have imposed themselves, without our knowledge and consent, into the contract, constituting gain (for them) loss (for us) and certainly therefore constitutes an offence under s.1 and s.5 of the Fraud Act. Given the wide range of conduct that falls foul of this Act a whole litany of offences under the other sections too is more than likely evident.

Edited June 28, 2009 by enoughisenough
Rewritten for greater clarity.

[enoughisenough]

Fantastic postings Dougal

 

I have a feeling that this one has got very long legs indeed.

 

CCA the buggers (costs a quid) when they don't comply and are chasing for a debt constituted of unlawful charges send Dougal's letter contents amended to your situation and it's probably like shooting fish in a barrel.

[enoughisenough]

Needing to keep this necessarily vague for purposes of not alerting the enemy.

 

Say you have a debt of around 600 largely constituted of unlawful charges with a high street. The debt dates back to the mid 90s. Occasional DCAs come and go buying and selling on the debt, but kind of give up. Then out of the blue about 10 years later you receive claim papers from a court a million miles away. The debt has risen to 9k and you are petrified and you bury your head in the sand, hoping it will go away (it rarely does). Because you have no means of paying this 'debt' a charge is secured against your property. About a year later you apply to Mr. Sub -prime who very late in the day finds this charge and thereby adds a further 9k to your loan to clear the charge. The charge is duly cleared. Then the BBC raises everyone's hackles by suggesting that all this time the charges weren't lawful. County courts get deluged and the banks start paying out left right and centre.

 

The banks then throw in the towel and decide to have a test case. You in the meantime have wisened up considerably. What basis for challenge might you have. Limitations Act? UTTCRS. Fraud Act? Any thoughts. You might want this money back as it has ballooned considerably costing you an arm and a leg in mr sub-prime interest.

[Rhia]

I think you are on the verge of cracking open a very, very nasty and potentially devastating situation not just with mortgages but loans, credit cards - in fact the whole stupid mess. Just keep digging.

 

And don't let any of these financial houses, banks, casinos, call 'em what you will tell you they have no cash to repay. Have you seen how quickly they seem to be getting back on their feet and still paying megabucks to those at the top

[andrew1]

Needing to keep this necessarily vague for purposes of not alerting the enemy.

 

Say you have a debt of around 600 largely constituted of unlawful charges with a high street. The debt dates back to the mid 90s. Occasional DCAs come and go buying and selling on the debt, but kind of give up. Then out of the blue about 10 years later you receive claim papers from a court a million miles away. The debt has risen to 9k and you are petrified and you bury your head in the sand, hoping it will go away (it rarely does). Because you have no means of paying this 'debt' a charge is secured against your property. About a year later you apply to Mr. Sub -prime who very late in the day finds this charge and thereby adds a further 9k to your loan to clear the charge. The charge is duly cleared. Then the BBC raises everyone's hackles by suggesting that all this time the charges weren't lawful. County courts get deluged and the banks start paying out left right and centre.

 

The banks then throw in the towel and decide to have a test case. You in the meantime have wisened up considerably. What basis for challenge might you have. Limitations Act? UTTCRS. Fraud Act? Any thoughts. You might want this money back as it has ballooned considerably costing you an arm and a leg in mr sub-prime interest.

 

Lets look at this bit by bit Cabot fan Club style :

 

Say you have a debt of around 600 largely constituted of unlawful charges with a high street. The debt dates back to the mid 90s.

The fact that it all dates to the mid 90's means that you can raise the issue when you found out about the possibility charges may be unlawful.

 

Occasional DCAs come and go buying and selling on the debt, but kind of give up. Depends on Limitation periods and exact dates and whether you are absolutely correct in this wording that the debt has been 'sold' - you should have received a Deed and Notice of Assignment

 

Then out of the blue about 10 years later you receive claim papers from a court a million miles away. The debt has risen to 9k and you are petrified and you bury your head in the sand, hoping it will go away (it rarely does). Again, there should have been correspondence from the litigating company, proof of debt etc. They also should have tried to contact you to discuss this. They should have supplied you a statement of account and the additional 8k will have been made up of any base debt and the rest in charges for which they will have had no right to apply. However, it all depends on the status of the company issuing proceedings, whether they own the debt or not or if any arrangement has been entered into. Charges, I believe can only be added if an arrangement to pay has been entered into with the debtor and the debtor defaults on that arrangement.

 

Because you have no means of paying this 'debt' a charge is secured against your property. About a year later you apply to Mr. Sub -prime who very late in the day finds this charge and thereby adds a further 9k to your loan to clear the charge. This is where your Fraud Act comes in I would imagine (unchartered territory as yet for me). Charging Orders would have been applied through a process - has that process been followed? (there's a lot of 'ifs' in this so you'll have to run your own analysis as you know the exact details) Mr Sub-Prime would want to clear a charge, but as happened in a case recently with me, the Judge asked why, as there was plenty of equity, did Mr Sub-Prime demand 2nd charge and the clearing of an existing 2nd charge, why didn't they take 3rd charge with the new loan? he found it oppressive - so keep that in mind. I believe, just like the case of registered Defaults (Richard Durkin vs DGS Retail) you have a claim against the DCA who registered this Charge. Fraud Act could apply again too I believe as they have misrepresented true facts to gain a pecuniary advantage knowing they didn't have the right.. There, hows that for starters?

 

All part of the fraud angle folks, not trying to use this to clear a separate individual post..

[enoughisenough]

How's that for starters?

 

Fantastic. Thinking I should sar the bank and the dca to see if they keep the story straight. If the bank say they sold the debt to an other dca. This could start to get very interesting indeed.

 

Cheers A1.

[JonCris]

Crapstone the problem for the consumer is that even if these people had thief & fraudsters tattooed across their forehead it's doubtful that much will happen when we have a political class who despite their recent public face are embedded within the City & the financial sector as a whole - we even have MP's & officers of state connected to some of the dodgiest firms in the field of debt collection such as Labours Milburn = Ridgemount = 1st Credit - hardly independent arbiters are they who will fight for the downtrodden & poor

[foolishgirl]

Crapstone the problem for the consumer is that even if these people had thief & fraudsters tattooed across their forehead it's doubtful that much will happen when we have a political class who despite their recent public face are embedded within the City & the financial sector as a whole - we even have MP's & officers of state connected to some of the dodgiest firms in the field of debt collection such as Labours Milburn = Ridgemount = 1st Credit - hardly independent arbiters are they who will fight for the downtrodden & poor

 

Absolutely JC, not to mention the latest peer to be associated with companies of dodgy dealings where again, the FSA seem to have triumphed in inaction:

TONY HETHERINGTON: You were tricked... so who's guilty? | Mail Online

 

And this is your first major hurdle if you have no money & the CPS refuse to take it on. You are potentially in danger of huge costs being landed against you for a private prosecution let alone your own although the latter could be mitigated if you could find a pro bona to take it on.

[Smarterchick]

So if I go trotting into the Police station with a document I believe to have been fraudulently used, what happens then exactly?

[Dougal16T]

Good evening all....

 

Yes it was that marvellous actor, Jack Warner, as George Dixon, in Dixon of Dock Green, (later to be Sergeant Dixon!) Sorry no prizes available...I'm too poor...!

 

Serious stuff now :

 

As far as two matters are concerned; firstly in my post text was deliberately marked RED, because in subsection (3) it shows exactly the definition of 'representation', and how the law sees the offence. The offender does not even have to believe it is untrue or misleading, as long as there is the possibility that the offender knows (or ought to have known - given the circumstances - see other legal definition for guilty knowledge - also called 'mens rea.') [How appropriate.....!]

 

We really must move away from this fixation that no-one will do anything. What is needed is a joint action........

 

SOCA will certainly take this from a joint group of complainants, because the potential proceeds of crime are enormous, and they are keen to stop this type of criminality - REGARDLESS of who the offender is, are or might be!!

 

The CPS will only 'take the case from you to proceed with it, in certain circumstances.....' but if they wish to halt matters then they have to make an application to have it dismissed.....does anyone think they really would be so silly in view of the circumstances and the associated press coverage this is going to get??

 

Secondly, I believe I may know exactly the Barrister to take this case on, and on a pro-bono basis.....I'll keep you posted. (Anyone interested, please PM me) With the agreement of the Bar Pro Bono unit, I will be able to instruct him direct......

 

Meanwhile...

 

The very best wishes to you all

 

 

Dougal

[Dougal16T]

So if I go trotting into the Police station with a document I believe to have been fraudulently used, what happens then exactly?

 

 

If you wish to PM me I will 'talk' you through the entire procedure.

 

Kind regards

 

Dougal

[enoughisenough]

Hi Smarter

 

Either they investigate, or they don't. And then, in the eventuality of the former, they prosecute or they don't. Following on from that the CPS prosecute, based firstly on the evidential test followed on by the public interest test. Or they don't.

 

Nothing ventured nothing gained, especially when the bast*rds are after what is rightfully yours.

 

EIE.

[enoughisenough]

Dougal

 

I think you may well have this nailed on. Your posts are excellent, but just to clarify is it possible for a pro bono (or any other paid for) barrister to raise criminal proceedings and still use what is essentially civil evidence and argument?

 

I think that the Fraud act confuses the boundaries. For example would it be the high court or the crown court or are you thinking that a criminal prosecution could the pave the way for heavy duty civil litigation.

 

I am not questioning you in any way shape or form and I think your contributions have been excellent. I just want to understand this from a layman's perspective.

 

Thanks EIE.

[Crapstone]

Does this sound familiar?

 

FSA bans and fines mortgage broker for serious regulatory failures

 

Dougal,

 

Even with a barrister it's going to take vast funding and a long time to get a conclusion, that's if it's not thrown out.

 

Wouldn't it be better to start with civil action against the brokers and then progress from there?

[Crapstone]

My slightly different take on this is as follows. To be party to a contract it is insufficient (i think) to be contracted to something without your express consent.

 

None of us expressly consented to having our morgtages remortgaged and then remortgaged again.

 

It is the case that SPV and the Trustee have imposed themselves, without our knowledge and consent, into the contract, constituting gain (for them) loss (for us) and certainly therefore constitutes an offence under s.1 and s.5 of the Fraud Act. Given the wide range of conduct that falls foul of this Act a whole litany of offences under the other sections too is more than likely evident.

 

But what exactly is the loss? It's theoretical unless you can conclusively prove that the securitisation has caused it directly.

[Crapstone]

Good evening all....

 

Yes it was that marvellous actor, Jack Warner, as George Dixon, in Dixon of Dock Green, (later to be Sergeant Dixon!) Sorry no prizes available...I'm too poor...!

 

Serious stuff now :

 

As far as two matters are concerned; firstly in my post text was deliberately marked RED, because in subsection (3) it shows exactly the definition of 'representation', and how the law sees the offence. The offender does not even have to believe it is untrue or misleading, as long as there is the possibility that the offender knows (or ought to have known - given the circumstances - see other legal definition for guilty knowledge - also called 'mens rea.') [How appropriate.....!]

 

We really must move away from this fixation that no-one will do anything. What is needed is a joint action........

 

SOCA will certainly take this from a joint group of complainants, because the potential proceeds of crime are enormous, and they are keen to stop this type of criminality - REGARDLESS of who the offender is, are or might be!!

 

The CPS will only 'take the case from you to proceed with it, in certain circumstances.....' but if they wish to halt matters then they have to make an application to have it dismissed.....does anyone think they really would be so silly in view of the circumstances and the associated press coverage this is going to get??

 

Secondly, I believe I may know exactly the Barrister to take this case on, and on a pro-bono basis.....I'll keep you posted. (Anyone interested, please PM me) With the agreement of the Bar Pro Bono unit, I will be able to instruct him direct......

 

Meanwhile...

 

The very best wishes to you all

 

 

Dougal

 

The FSA knew about it and they also had 'mens rea' to know how damaging it could be. Why not use the Freedom of Information Act and take action against the state?

 

Unless there is a specific point of fraud, it's not going to work. When is the fraud committed and on what grounds? The contracts clearly state that they have a right to assign and the FSA agreed that the consumer not being informed is of no detriment.

[enoughisenough]

But what exactly is the loss? It's theoretical unless you can conclusively prove that the securitisation has caused it directly.

 

Agreed crapstone. It's difficult to quantify and pinpoint but now GMAC Oakwood and Spml have all been named and shamed in the mail on Sunday we have certainly prised the door ajar. I don't favour any approach I favour them all. Let plod do the plodding under the fraud act. It's what they are paid for!

[enoughisenough]

Dougal forget my previous post. It was a pile of tosh. I agree that we should get away from this defeatism and collective action to soca and or the sfo might just be the ticket. Incidentally one person using this threads as evidenceight be sufficient.

[Dougal16T]

Dougal

 

I think you may well have this nailed on. Your posts are excellent, but just to clarify is it possible for a pro bono (or any other paid for) barrister to raise criminal proceedings and still use what is essentially civil evidence and argument?

 

I think that the Fraud act confuses the boundaries. For example would it be the high court or the crown court or are you thinking that a criminal prosecution could the pave the way for heavy duty civil litigation.

 

I am not questioning you in any way shape or form and I think your contributions have been excellent. I just want to understand this from a layman's perspective.

 

Thanks EIE.

 

Good morning EIE and everyone else too....

 

Let us step back and ask the question

 

Civil or Criminal?

 

The standard of proof is higher in the Criminal Court as it must be 'beyond reasonable doubt.'

 

The standard of proof in the Civil Court is that it must be proved 'on the balance of probabilities'

 

I know that most of you are already aware of this, but my point is short and sweet (who said that makes a change......?)

 

It is this: I believe that the evidence already collected by you all is more than enough to prove 'beyond reasonable doubt' the offence which is[are]taken forward on a Criminal basis.

 

This evidence (to answer the point raised by EIE) is evidence of a CRIME. (It could also be evidence in a Civil case - the same evidence can be used in either court, there are different procedures, that is all.)

 

The case would be (in my humble opinion), best started thus:

 

1. Large group complaint to Police.(remember what I said about their lack of interest/action)........or

 

2. In that event then SOCA perhaps - see their website - it makes VERY interesting reading - they mean to put those who profit at another's loss away for a long time (my phrase not theirs)

 

3. Or a private prosecution - I see this as the last effort - but by that time there should have been enough in the press/tv for these people to have been dealt with....

 

There was a question raised - 'Where is the loss?' I draw your attention to S.5 subsection (4) of the Fraud Act 2006. (Well worth a read....Sorry I am such an anorak!)

 

Finally to answer EIE's question : A Barrister would be instructed once proceedings had been commenced in the event of a private prosecution, and matters would begin at the Magistrates Court, thence to Crown Court (by reason of the offence - Indictable -(and the fact that it 'offers' a prison sentence). Any subsequent Appeal may be to the Royal Courts of Justice, by way of the High Court, with the House of Lords as the last 'stop' before the European Courts of Justice - BUT IT WILL NEVER GET THAT FAR - think of what these people have done to you all, and the evidence that you have about it, how will they possibly ever talk their way out of it?

 

THE EVIDENCE YOU HOLD IN YOUR HANDS WHEN YOU GET A LETTER FROM THEM IS UNQUESTIONABLE - IT IS WRITTEN BY THEM TO YOU - What it says is what they intend or did intend to do.

 

My best wishes to you all as always

(I just want to help if I can)

 

Dougal

Edited June 29, 2009 by Dougal16T
To clarify a small point....

[foolishgirl]

Any subsequent Appeal may be to the Royal Courts of Justice, by way of the High Court, with the House of Lords as the last 'stop' before the European Courts of Justice - BUT IT WILL NEVER GET THAT FAR - think of what these people have done to you all, and the evidence that you have about it, how will they possibly ever talk their way out of it?

 

I am not criticising you Dougal, your posts have been very valuable & enlightening but would beg to differ on your last comment - 'BUT IT WILL NEVER GET THAT FAR - think of what these people have done to you all'

The same could have been said about bank charges some time back & look where this is currently at. A private individual (or even a group) could not have hoped to take the banks on to this stage (& maybe even beyond, let's wait & see) unless they were particularly flush.

 

Whilst I agree with the sentiment (& also your argument) caution may just be a valuable word too.

[JonCris]

Please don't forget the sub-prime lenders are the issue/children of the prime lenders the banks - It's the reason why the banks are so intent on defaulting consumers at the slightest opportunity in order to force them into the arms of their off-spring - Thereby allowing them to charge extortionate rates whilst appearing to be above it all - also whilst at the same time the funds borrowed to settle outstanding debts, mortgages + much enhanced profits, less minimal costs, comes back to them

[enoughisenough]

It's a real horror show.