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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Hello, I am acting for my father who has been the victim of

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Hello, I am acting for my father who has been the victim of fraud and professional negligence committed by a financial advisor who acted in cojunction with my younger brother. The case relates to advice and action provided and executed by the financial advisor in 2005. In basic terms my father owned his own home at the time which was worth approx £475k. He was comfortable with pension income of approx £1k per month with only himself to look after. He wanted to ensure he minimised the effects of Inheritance tax when he dies and through my brother he went to see a financial advisor to discuss this. To cut a long story short it ended up with the advisor arranging for my brother to buy my fathers house for 50% of market value and then organising a £340,000 mortgage for my father which was used to buy another house that my brother then moved into. The mortgage application was fraudulent, the advisor knew my fathers situation (i.e. not employed, age 73, with pension income of £1k per month), however on the application he put down that my father was employed, had a salary of £120k per year and had an ISA which would mature in 2 years time to pay off the mortgage. None of this was true and my father was not part of the application, nor did he see it at any time. The BAnk of Scotland issued the mortgage without asking for any kind of evidence that my father would be able to pay the loan.... My brother together with the financial advisor kept all paperwork away from my father, he did not even know how much the mortgage was for. He signed 2 pieces of paper, one being the third page of a 3 page declaration document and the other a bank DD form. My brother fell behind with the repayments and the house was subsequently repossessed. My brother on advice from the financial advisor then entered into a sale and leaseback arrangement on my fathers house that he purchased and subsequently defaulted and that house was repossessed as well... my father and my brother were evicted in February this year. I have had the matter looked at by The Zurich Open Network who are the body to whom the financial advisors company are affiliated and they not surprisingly have come down on the side of their man who has lied to them comprehensively in his statements. We now have the chance to go to the Financial Ombudsman but my concern with that is that they are there to protect the interests of financial organisations rather than consumers. I favour a direct legal attack on the financial advisor concerned and am seeking general advice on how to proceed. Thank you.
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

AlexWatts2013 : Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return. For now please let me know if you have been to the police yet?
Customer:

No, not yet.

Customer:

Actually that is nor quite true as I have reported it to 'action fraud' but I have heard nothing from them. I did that about 10 weeks ago.

Customer:

My name is XXXXX XXXXX the way

AlexWatts2013 : But the property sale was completed in 2005 so that is when the fraud took place?
Customer:

yes correct, all of this only came out in 2010 when I became aware that my fathers house was the subject of repossession action....up until that point I was unaware of any of what had gone on. It was only when I asked the financial advisor for a copy of the mortgage application file that he submitted to BOS that I and my father became aware of what had gone on. That was the point at which we became aware that fraud had been committed. My brother has only recently admitted his role in the matter, he acted together with the financial advisor, but it waas the FA that came up with the overall 'plan'.

AlexWatts2013 : Under the Limitation Act 1980 you have 6 years from the date of breach to take any action, this means that the clock started ticking in 2005 and therefore the last date to bring a claim would be 2011 so that does rule out any civil action. Negligence is a 3 year time limit so again this is going to be out. However in terms of criminal action this sounds like fraud, with this type of fraud there is no time limit to which the Police can investigate and bring a prosecution. This is because it is what is called an either way offence, which means there is no time limit. Therefore your only course of action at this stage is to keep pressuring the Police to take action. They are known for being slow and given that this is quite a complex web it may take some time. However once they gather all,the evidence they will pass it to the Crown Prosecution Service to consider whether it should be charged. The CPS will consider whether there is enough evidence to secure a realistic prospect of conviction. If the answer is yes then the charge will be approved. But from what you have said any civil action is going to be time barred and is and is an absolute defence.
AlexWatts2013 : I trust this fully resolves your question and if so could I invite you to take a moment to rate my service, as your feedback is important to me. If you need further information or help then please click rely. Alex
Customer:

Hi Alex, I did wonder about the time restriction but I was under the impression that you had 6 years from either the date of the offence or from the date on which you became aware of the offence which in this case was 2010 which is when we received the copy file from the advisor concerned. Up until that point we were unaware of what he had done. I assume that the Financial Ombudsman can still investigate as we only received the 'final response' from the industry body that he works under in May. With the police how would you recommend I chase that?

AlexWatts2013 : Not for contractual disputes it goes from the date of breach I am afraid. The Ombudsman can still look into it yes. I would certainly encourage you to get the Police on board and to take action, this is fraud, providing false details etc.
AlexWatts2013 : However it may be possible to bring a claim for latent damage under negligence because limitation can run in some circustances from the date the negligent action became apparent. The test is whether you knew or reasonably ought to have known. What is reasonable is subjective and is a hurdle you would need to overcome.
AlexWatts2013 : In that case the period is three years from date of discovery.
Customer:

The date the negligent action became apparent to us was 1st March 2011 which is when we received the copy file from the advisor concerned. Until that point we had no information of any kind so to my mind that is when we could have reasonably known about it. Is it possible / sensible to go the Ombudsman route at the same time as taking action direct for negligence? I will go to the police again for sure. My father does not qualify for legal aid unfortunately, is this a case a solicitor may take on a conditional fee basis?

AlexWatts2013 : Yes you can take action agasis
AlexWatts2013 : Yes you can take action at the same time, but I would consider waiting until the outcome of the Ombudsman findings.
AlexWatts2013 : You can ask solicitors about CFA but they have to be rock solid, I have not seen all the evidence so could not say whether or not a Solicitor would take it on.
AlexWatts2013 : If the Omdudsman finds in your favour and there is a criminal conviction then you are more likely to get a CFA.
Customer:

Thanks Alex....looks like the Ombudsman and the police may be the best way to go as next steps. Thanks for you assistance. [email protected] 01494 758495

Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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