Thread: Fraud Act 2006

DougalT16, a cagger and a former police officer has suggested that the sub-primers are committing criminal offences under this act and I think he might well be right. If so this could seriously impinge their repo roadshow.

His argument and my responses were posted on the TSC sub Prime thread.

I consider this of sufficient importance to see if we can generate some debate about this. Before anybody goes off half cocked saying that this is criminal not civil I have an authority to post which suggests that the act was drawn up to blur this distinction, i.e. to make certain contractually based conduct subject to criminal as well as civil action.

Let's see what everyone thinks. Here are the posts thus far.

From DougalT16 on the TSC Select Committee Thread

The only way to take a criminal case forwards is to go to the police - as an ex p..c. myself I can tell you that if your evidence is in order then the Police WILL take it on - if the officer you speak to or a civilian counter clerk says they will not, then remember this, 'an officer (including civilian staff) who neglects his duty will be liable to proceedings under the Police Act, and may be disciplined by the Chief Constable, and are also subject to investigation by the IPCC.' (Independent Police Complaints Commission.)

Now I know that certain 'loan/finance companies' would have great problems with the police investigating their actions - I draw your attention (again!) to my old friend the Fraud Act 2006 - [also incorporating the Fraud Act 1968]
This is where the offences being committed are clearly set out, and it makes good reading (......)

ALMOST ALL OF THESE SUB-PRIME COMPANIES AND THEIR ASSOCIATES HAVE COMMITTED AND CONTINUE TO COMMIT OFFENCES UNDER THIS ACT.

All it needs is one complaint to the Police and the rest, as they say, may be history.

I hope I can help, if you would like me to - you can always PM me if you wish.

Kind regards as always

Dougal

Response by Enoughisenough

Now that Dougal was a post well worth Reading! Lets hope the guest that has popped up is reading carefully. I have been thinking along these lines myself including a referral to the SFO. This was my nuclear option if they came after me again. Since it's now out in open does any cagger who has already been repossessed feel like notifying Hemel Hempstead constabulary of a serious fraud?

Last edited by enoughisenough; Today at 12:00. Reason: bloody typo!

http://www.opsi.gov.uk/acts/acts2006...0060035_en.pdf

Serious Crime Prevention Orders

The Serious Crime Act 2007, which commenced on April 6 2008, introduced the concept of Serious Crime Prevention Orders – the so called "super ASBOs." In essence, these are civil orders, similar to injunctions, which restrain serious and serial offenders' business and commercial activities. They are available to a Crown Court on either conviction or committal for sentence and can be used for convictions under sections 1, 6, 7, 9 and 11 of the Fraud Act (as well as for conspiracy to defraud). The first orders were served in Northern Ireland on April 22, 2008, on four people who were the subject of a HM Revenue & Customs prosecution for revenue evasion in relation to fuel fraud.

And yet more on this...

The concept of "legal duty" is explained in the Law Commission's Report on Fraud, 2002, which said at paragraphs 7.28 and 7.29:

"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

Could this mean that the repossessions have to be reversed or fully compensated if they in anyway fall foul of the 2006 Act?

Section 4: Fraud by abuse of position

Section 4 makes it an offence to commit a fraud by dishonestly abusing one's position. It applies in situations where the defendant has been put in a privileged position, and by virtue of this position is expected to safeguard another's financial interests or not act against those interests.

The Law Commission explain the meaning of "position" at paragraph 7.38:

"7.38 The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners. It may arise otherwise, for example within a family, or in the context of voluntary work, or in any context where the parties are not at arm's length. In nearly all cases where it arises, it will be recognised by the civil law as importing fiduciary duties, and any relationship that is so recognised will suffice. We see no reason, however, why the existence of such duties should be essential. This does not of course mean that it would be entirely a matter for the fact-finders whether the necessary relationship exists. The question whether the particular facts alleged can properly be described as giving rise to that relationship will be an issue capable of being ruled upon by the judge and, if the case goes to the jury, of being the subject of directions."

The term "abuse" is not limited by a definition, because it is intended to cover a wide range of conduct. Moreover subsection (2) makes clear that the offence can be committed by omission as well as by positive action.

Section 5: "Gain" and "loss"

Section 5 defines the meaning of "gain" and "loss" for the purposes of sections 2 to 4. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. Under these definitions, "gain" and "loss" are limited to gain and loss in money or other property. The definition of "property" which applies in this context is based on section 4(1) of the Theft Act 1968 (read with section 34(1) of that Act) and section 4(1) of the Theft Act (Northern Ireland) 1969 (read with section 32(1) of that Act). The definition of "property" covers all forms of property, including intellectual property, although in practice intellectual property is rarely "gained" or "lost".

I think Dougal has hit on something here...any naysayers in the house so we can start to test the arguments?

A Basic summary of the Act which seems to have prima facia application.

New fraud offences in the Fraud Act 2006 - Addleshaw Goddard

Intrigued to the maximum possible limit here!

This is potentially devastating.

Can a sub prime holder please pm me and dougal with your exact circumstances. Preferably you should have been repoed already. That way nothing more to lose and they can't do much more to you than they have already done or intend to do anyway.

Dougal: did you mention it in writing or on the phone to Robinson way and how exactly did they disappear? Also did they know your former career?

Sorry to ask these things-it is for the greater good- you can pm if you want or just put it on open.

Keep the faith. EiE.

I'm happy to help and you already know my circumstances as I've posted openly. Not repoed but I'm willing to take this to its bitter end. My case fits the criteria perfectly and the company wouldn't stand a chance as they have already admitted several times that they have failed in their legal duties and have 'lost' the original paperwork.

It looks as though they have aimed to bring unconsionable bargain and undue influence into the criminal arena instead of it merely being a civil matter.

subbing

It's achieving a prosecution that's going to be the difficult part, the police are only a small part of it. It's the CPS that pulls the strings and being in a minority sector are we going to fit the criteria of it being in the public interest on just one claim? I personally think we need a few people to make a complaint at the same time and for the same reasons for it to be successfully put forward.

Well in my view it certainly passes the evidential test. As for the publin interest test there are about goodness knows how many 1st charge, 2nd charge, buy to let sub primers out there and crapstone are the biggest of the lot. Also don't forget that A&L mortgages are now on their books and that virtually every if not all high street lenders securitise.

This does look a very useful tool and I may well be able to use this where Swift, in my opinion, used a false document as a Witness Exhibit at a hearing I had.

It was difficult to go back to the court as there were time limits to do so, but this one, where Swift have refused point blank to supply the audit trails despite all my requests under CPR will be getting a visit from the men in blue now....thank you Dougal this will open up a considerable amount of interest. Apllied as you say to mortgages and loans from the sub primers where Blue Peter reigns supreme, Caggers will have a number of potentially lethal options open to them.

If just one person who has been repossessed gets restitution from all the work that goes on here, then it is all worth it.

Thank you

SC

And a multitude shall follow in his footsteps and proclaim him the saviour!

So what's being suggested is that amongst other-things the sub prime are committing fraud - may I go a step further & suggest that ALL lenders who securitize their loans are committing fraud - in that the agreement/contract entered into at the outset is considerably different to one conducted by the lender after securitization in that many of the original safeguards for the borrower are removed WITHOUT their knowledge making the risk of default so much more serious

mortgage Lenders Code for 1 which requires lenders to undertake certain steps to 'help' those in difficulties which fall by the wayside as once securitzed the sole priority is to benefit the bond holders whatever the cost to the borrowers

Originally Posted by Dougal16T

Good evening all,

Anyone remember who said that on BBC on a saturday night in the 1960's.....? (Just a bit of fun - I enjoy a good quiz!)

Serious now to respond to the question by EIE in post 5 above:

My mistake is that Mackenzie Hall were seen off by me first, not Robinson Way (although I have since dispatched them.....)

I wrote a first letter to Mackenzie Hall, the text of which is set out below:

Thomas Lloyd
Mackenzie Hall
30 The Foregate
Kilmarnock
KA1 1JH 9th May 2008


First Class recorded delivery.

Re: M 7XXXXXX

I do not acknowledge any debt to your company or any other person.

I have today received your unsigned letter dated 29/4/2008.

I will not be making any payment to you.

I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.

Please provide me with proof of your lawful right to claim any money from me.

You must not telephone me, any calls from you will be recorded and construed as harassment.

You must not send collection staff or any other person acting on your behalf or under your instructions to my residence as this will be construed as harassment.

Take note that any implied right of access that may have existed to my residence and grounds is withdrawn from you and any of your agents apart from Royal Mail, to this effect, for you to send a door step collector will be considered trespass and harassment and you will be held liable and reported to the relevant authorities.

If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

IN RESPECT OF THE ALLEGED DEBT CLAIMED, I REQUIRE:

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of any default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance which is held on the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

k. A copy of all account statements for the duration of the agreement.


3. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

4. Clarification of the date you acquired the alleged debt, or instructions to act as collection agents; what organisation these were acquired from, their registered office, their company number (if any), and what legal title they had to this debt, and what credit licence number they had at the time that the debt was purchased or entered into. You are also required to provide your credit licence number.

I must advise you that if the information is not forthcoming within the legally prescribed timescale, all of the facts will be reported to the OFT and Trading Standards for consideration of the question of prosecuting you for all or any of the offences disclosed.

(Please note :A “true copy” means a first generation copy of the actual signed document.)

All documents should be readily available as proof of your or your clients legal right to collect this account.

Your and your client’s failure to provide this documentation within the statutory time limits means would means you or your client has committed a summary criminal offence.

However, due to your vexatious nature of your correspondence I also reserve the right to make formal complaints against you and/or your client to Trading Standards and the Office of Fair Trading to whom I may now send copies of our correspondence as evidence.

Please be aware that I am logging all correspondence with you with regards to this matter and will be charging for time at the rate of £17.80 per hour as part of my counterclaim against any action you may take.

I trust you will deal with this matter using all due diligence.

Kind Regards


They didn't get the message or respond so:

Thomas Lloyd
Mackenzie Hall
30 The Foregate
Kilmarnock
KA1 1JH 20th May 2008


First Class recorded delivery.

Re: M 7XXXXXX

I do not acknowledge any debt to your company or any other person.

I have today received your unsigned letter dated 9/5/2008. I will not be making any payment to you.

I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.

It is necessary to draw your attention to my letter to you dated 9th May 2008, sent by recorded delivery first class mail.

Royal Mail have confirmed receipt by you of this letter.

This letter required certain information from you – that information is still outstanding.

In the meantime, the contents of your letter dated 9th May 2008 constitute an offence under The Fraud Act 2006 .

The appropriate sections read:

Section 1. Subsection (3) sets out the penalties for the offence. The maximum custodial sentence of 10 years is the same as for the main existing deception offences and for the common law crime of conspiracy to defraud.

Section 2. This section makes it an offence to commit fraud by false representation.
Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4. Subsection (2) defines the meaning of "false" in this context and subsection (3) defines the meaning of "representation". A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Subsection (3) provides that a representation means any representation as to fact or law, including a representation as to a person's state of mind.
Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.
Subsection (5) provides that a representation may be regarded as being made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). The main purpose of this provision is to ensure that fraud can be committed where a person makes a representation to a machine and a response can be produced without any need for human involvement.

Section 3. makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:
"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).
7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

Section 5. defines the meaning of "gain" and "loss" for the purposes of sections 2 to 4. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. Under these definitions, "gain" and "loss" are limited to gain and loss in money or other property. The definition of "property" which applies in this context is based on section 4(1) of the Theft Act 1968 (read with section 34(1) of that Act) and section 4(1) of the Theft Act (Northern Ireland) 1969 (read with section 32(1) of that Act). The definition of "property" covers all forms of property, including intellectual property, although in practice intellectual property is rarely "gained" or "lost".

Section 6 makes it an offence for a person to possess or have under his control any article for use in the course of or in connection with any fraud. This wording draws on that of the existing law in section 25 of the Theft Act 1968 and section 24 of the Theft Act (Northern Ireland) 1969. (These provisions make it an offence for a person to "go equipped" to commit a burglary, theft or cheat, although they apply only when the offender is not at his place of abode.) The intention is to attract the case law on section 25, which has established that proof is required that the defendant had the article for the purpose or with the intention that it be used in the course of or in connection with the offence, and that a general intention to commit fraud will suffice. In R v Ellames 60 Cr. App. R. 7 (CA), the court said that:
"In our view, to establish an offence under s 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word 'any' in s 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else."
Subsection (2) provides that the maximum custodial sentence for this new offence is 5 years.

Section 7 makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. For example, a person makes devices which when attached to electricity meters cause the meter to malfunction. The actual amount of electricity used is concealed from the provider, who thus makes a loss. Subsection (2) provides that the maximum custodial sentence for this offence is 10 years.
In the Magistrates Court the sentence for a single offence may not exceed 12 months. However, Section 78 of Powers of Criminal Courts Act (Sentencing) Act 2000 imposes a maximum of six months. This was due to be changed in November 2006 and will change if Section 154 Criminal Justice Act 2003 is activated. As at 16 January 2007 it has not been activated so the maximum penalty is restricted to six months.

Section 8: "Article"
Section 8 extends the meaning of "article" for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form. Examples of cases where electronic programs or data could be used in fraud are: a computer program can generate credit card numbers; computer templates can be used for producing blank utility bills; computer files can contain lists of other peoples' credit card details or draft letters in connection with 'advance fee' frauds.

Section 12 repeats the effect of section 18 of the Theft Act 1968. It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation. By virtue of subsection (2)(a) and (b) this offence applies to directors, managers, secretaries and other similar officers of companies and other bodies corporate. Subsection (3) provides that if the body corporate charged with an offence is managed by its members the members involved in management can be prosecuted too.
It is now too late to reverse your position, as a report has today been passed to the OFT.
However, I am conscious of the possibility that their enquiries may be protracted and so therefore I have today made a formal complaint to the Police, providing a S.9 Witness Statement, together with first generation copies (taken by the Police) from the documents you sent to my address. My request for this matter to be investigated under the Fraud Act 2006 has been accepted and enquiries are today commencing.

Nothing heard from Mackenzie Hall after that.....and by the way I refused point blank to speak to them on the telephone, and they did not know my former career. (IF YOU PM ME I WILL TELL YOU WHAT HAPPENED AS FAR AS THE POLICE WERE CONCERNED)

My apologies for a lengthy post, but just trying to show how I dealt with them.

Finally, the vexed question of the CPS:

1. It is true that one complaint may not be enough.

2. However, it is open to anyone to launch a private prosecution, and if you check the CPS website you will see that they 'may intervene if it is in the public interest' and take over the case.

3. I suggest a mass complaint to the Police, and /or to SOCA.

Any thoughts anyone.....??

Best wishes to all


Dougal


p.s.; they've done it to us - NOW LET'S DO IT TO THEM....

Great Dougal suggest only one very small amendment in red

andrew it's been discussed in legal circles that a bank employee refusing to tell you why you have been denied a loan could constitute an offence under the 2006 Fraud Act - in that their failure to tell you denies you the right to rectify it thereby denying you access to funds & causing you a loss

Almost certainly a lender changing the terms of an agreement WITHOUT your knowledge in order to extract more money & which causes you to greater expenditure than planned or to lose your home/asset could IMHO be considered as fraud