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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69360
Experience:  Over 5 years in practice
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Please direct my three questions below to a UK

Customer Question

Hello
Please direct my three questions below to a UK lawyer/barrister who is an 'experienced' specialist on criminal on-line financial fraud, re recovering victims money.
I have been the victim of a significant criminal financial fraud, made by several differnent on-line fraudsters this Spring - and reported to police who directed me to Action Fraud/NFIB, as well as my bank.
I was illegally 'cold called' and paid money to fund a non-regulated financial investment to on-line fraudsters.
Since the cold-call was an illegal act, are not 'subsequent' transactions, such as paying for the investment null and void?
If so, should I not be able to ask my bank to refund the BAC's transfer payments back to me, and they make a claim under their indemnity insurance policy to compensate themselves?
Please note I understand that if I authorise a bank payment transaction then the bank is not normally liable to repay the money. However, in view of the payment coming AFTER and DIRECTLY as a result of the illegal cold call - then the payment should be null and void, and hence I ask for the legal position on this.
My second question is, I also understand that even when the payment has been authorised, the bank should do EVERYTHING in their power to recover the monies from the fraudsters ( a regulatory requirement). As a victim of fraud, I rang a London specialist
law firm on fraud, who confirmed a victim/bank needs to act swiftly - within days - to get a judge's injunction to freeze all or part of the alleged fraudsters bank a/c.
This is because though the fraudsters bank a/c's were in the UK - indeed some were the same as my bank! - fraudsters move quickly to transfer the monies abroad in order to be in a foreign jurisdiction, so making it harder to be pursued. Having said this anti-money laundering legislation is well aware of this problem over the years and countries have built up agreements re access and information to enable an audit banking trail to be followed.
The lawyers costs for doing this was £15/£20,000! It was high since they would need effectively to prepare the full legal justification - up front, in order for a judge to be in position of the full facts so as to be able to grant and injunction order.
I have made a complaint to the FOS against my bank, since I do not believe they have done this (with good evidence). However, I am conscious (through people with good experience and qualifications) that the bank's have whole dept.'s set up to defend their liability against victims of fraud re on-line fraud cases, since it is out of control, with well over a million cases a year, and with minimal cases brought to the court!
My second question is therefore what evidence should I ask the bank to give to corroborate they have tried to recover my money by doing all they can (which as I say I very much doubt they have done anything at all - with good evidence, since they have not asked me for the transactions involved or dates or amounts or the fraudsters a/c details in some cases!). For example one of my fraud payments was for c£45,000 and thus to pay c£15,000 for a court injunction might be regarded by the bank as not justifiable?
My third question follows the above point, in that would not the bank be able to claim back recovery monies and their costs, under their own indemnity insurance cover - i.e. all monies paid to the victim in the first place since it is AFTER an illegal act, and thus being eligible under their insurance policy conditions?
In summary therefore, I would be grateful for clarification over transactions (my payments) AFTER and based on an ILLEGAL transaction, being null and void in law.
Secondly, does the bank under its regulatory requirements have indemnity insurance cover to cover and refund to victims who have made payments illegally as a result of criminal fraud.
Thirdly, what evidence is justifiable to request from the bank to DEMONSTRATE they have done ALL IN THEIR POWER to try and recover the victims money, e.g. did the bank seek a court order for an injunction to freeze part or all the alleged fraudsters bank a/c that the victim paid into?
I await your advice. Thank you.
Mark 4.30pm 6th Aug. 2016
Submitted: 3 months ago.
Category: Law
Expert:  Nicola-mod replied 3 months ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 3 months ago.

Thank you for getting in touch Nicola, and I would like an answer.

Would it help if I increased my £18 to £25, which I am happy to do, given I have a legal specialist on recovering money lost through on-line fraud, who can answer my 3 questions.

Kind regards

Mark

23.57pm 7th August.

Expert:  Nicola-mod replied 3 months ago.
Hello,
We will continue to look for a Professional to assist you.
I think it may help, however I have not had any feedback from Experts about this being underpriced.
Thank you for your patience,
Nicola
Customer: replied 3 months ago.

Hello

I have just had an email from Just Answer to increase my price (£25 from £18) further to £42?!

I am genuinely unsettled over this.

I have been a member for many years, and usually give far more than 10% 'tip', after the answer has been given - so I am surprised.....

I have followed your recommended prices - £18 being for low priority and speed, and now 3 days later it has certainly qualified on both accounts - yet I have increased it to £25?

Despite my feelings and in order to try and get the job done, I will increase to £30 - nearly double the agreed estimate Just Answer originally agreed.

I hope I will now have a suitably qualified and experience legal specialist to answer me now.

Thank you.

Mark

22.04pm 8th Aug.

Expert:  Nicola-mod replied 3 months ago.
Hello,
The original price estimate is an automated system which may not always be correct. The second email you received, it looks as if an Expert has suggested that the price as the amount they would need to be able to answer your question fully. Please keep in mind that other Experts may have a different view.
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Customer: replied 3 months ago.

Hello

Please go back to the expert who requested £42, to say I accept as an all in price - and I hope his answer therefore will be a sound one based on a strong expertise in this area of law, since he has requested the higher price!

Also, one further point re my 3 questions is that surely there is a duty by the bank when allowing a fraudster to open a trading bank a/c to check the validity of his company?

I ask this since my fraudster was a binary options online trading company, with a UK address and thus should have been registered with the Gambling Commission, but was NOT!

The FCA does not regulate such companies as yet, for reference.

Thank you.

Mark

23.42 9th Aug.

Expert:  Nicola-mod replied 3 months ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Expert:  Ash replied 3 months ago.

Hello my name is ***** ***** I will help you.

How are the bank at fault if you paid to frausters please? The bank didnt give you the details?

Customer: replied 3 months ago.

Hello Alex

You advised me how I could lodge my own legal recovery of monies over my being a victim of fraud, in February of this year.

However, I did not pursue this since it was too complicated for me to lodge - and too expensive at the time for a lawyer, so I was hoping the bank would compensate me my monies, for the reasons I have given behind my current 3 - now 4 questions.

Am I correct that you are a litigation lawyer - but do you deal with fraud, and then online fraud cases with binary options trading platforms - or are experienced and have expertise in this area?

I ask since your reply does not address my 4 questions, but instead is a question to me of why I think the bank is at fault?

I have given the background context to my 4 questions precisely to clarify why I am asking the questions, whose answers will then determine whether my belief is correct or not that the bank are at fault for not compensating me.

This is why I needed a specialist in this area - even a barrister if necessary- as in my original remit, since my case highlights financial investment/gambling business's being allowed to operate in the UK without being regulated (FCA) or registered (GC), and defrauding the unsuspecting public at large.

I am a retired independent financial investment adviser, yet was deceived.

However, the banks are fully cogniscant of, and I am advised, have whole dept's to defend them from victims claims, despite having indemnity cover......

They have a duty of care, as well as adhering to a regulatory compliance structure for their clients, so why are fraudsters business not checked when banks open an account for these criminals (re regulation/registration, given they give a UK address) - as the start?

What protocol under their regulatory framework do banks have to fulfill to DEMONSTRATE that they have tried to recover all monies, when notified by the victim or though the original fraud/police notification by the victim?

Again a specialist will know exactly why these points/queries I raise are relevant from a legal perspective, since - now having the experience of being a victim of fraud - it is morally unjust to have the layman to bring down the fraudsters as currently is the case - the police since 2007 change in the law, no longer need to have financial fraud cases reported - only to the bank. Action Fraud and the NFIB do not pursue individual cases, and so it goes on .......

The public have been utterly let down, and indeed the Police Commissioner when I spoke to him over my case, lamented that he whole heartedly agreed with my findings, which was sadly the current state of affairs with all fraud cases which is the No1 criminal activity in the UK, and he has taken up month after month with the Home Secretary.......

I could go on. Thus, does this make sense - what I say - and is this your subject?

Thank you.

Mark

16.58 pm 11-8-16

Customer: replied 3 months ago.
Relist: Inaccurate answer.
Alex W. instead of answering my 4 questions ask mee a question - despite my giving the full context behind my questions?
Expert:  Jo C. replied 3 months ago.

I am a barrister and I regularly deal with fraud cases.

Please can you tell me on what basis you consider the bank liable?

Customer: replied 3 months ago.

Hello

Good to note you are an expert on fraud - I assume in the UK?

I believe the bank are liable, based on these points which I have already made in my original enquiry through the context given to my 4 questions, namely:-





  • I understand that if I authorise a bank payment transaction then the bank is not normally liable to repay the money. However, in view of the payment coming AFTER and DIRECTLY as a result of al cold call -which the bank confirmed IS illegal - then any SUBSEQUENT action i.e. the payment should be NUL and VOID, and hence I ask for the legal position on this.

  • The banks have a duty of care, as well as adhering to a regulatory compliance structure for their clients, so why are fraudsters business not checked when banks ORIGINALLY OPEN an account for these criminals - re regulation/registration, e.g. do they have a UK address, if not who regulates them, since companies operating in the UK, but with foreign owned and managed online web-sites can still operate through a loop hole in the law - without being registered or regulated by the FCA or Gambling Commission. This should raise alarm bells to the bank - given the notoriety and out of control growth of online fraud, which is the No 1 worse criminal offence in the UK with over £1M cases a year and rising........



  • What protocol under their regulatory framework do banks have to fulfill to DEMONSTRATE that they have tried to recover all monies, when notified by the victim or though the original fraud/police notification by the victim? I know they have a COMPLIANCE requirement to do everything within their power to recover the monies. For example I rang top fraud lawyers in London, who said a Court Injunction to freeze part or all of an alleged fraudsters bank a/c is an URGENT necessity, that needs to be done in a few days, before monies are transferred to foreign jurisdictions, which makes following the audit trail more difficult, though now cross border agreements assist to overcome this problem. however, to persuade a judge to grant such an order means effectively laying down the full facts of the case, with a cost of £15,000+......This effectively stops ordinary ;lay people in their tracks since they cannot afford it - like me - BUT not so for the banks, who may well also have indemnity insurance cover?



I would be grateful for your thoughts therefore on this.

Thank you.

Mark 12.44am 18th August


Expert:  Jo C. replied 3 months ago.

I'm very sorry but they are just simply not liable to replace your money.

This was a scam by a fraudster. The fraudster is liable not the bank.

Unless the bank's security measures failed in some way there is no claim. Even then it would only be negligent rather than fraud.

Expert:  Jo C. replied 3 months ago.

I'm very sorry.

Can I clarify anything for you?

Jo

Customer: replied 3 months ago.

Hello

Thank you for your statement that the bank are not liable, however I would like you to clarify this with respect to my 4 questions?

To repeat again:-



  1. Given 'cold-calling' is an illegal act, does it not follow in law that ALL transactions pertaing to a previous 'illegal' act are 'Null & Void'? If so then in this way the bank should repay the money, and possibly claim under their own indemnity cover for their loss.

  2. The bank have to COMPLY to their regulatory framework - hence:-


    1. Is there not a case that their due diligence is at fault in allowing an alleged fraudster to open a bank a/c, given a UK address, and NOT being registered with the FCA or Gambling Commission, which SHOULD be the case for a such a business to conduct itself legally.?

    2. Having been notified of their customer being defrauded, both by the customer and or police/Action fraud or NFIB, the bank I believe have a duty of care - and indeed a COMPLIANCE responsibility to ensure ALL steps are taken 'quickly' to retrieve the monies. There is NO evidence 'demonstrating' such action at all in my case?

    3. There was NO communication by the bank at all in writing, nor verbally over how they were addressing my notification of being defrauded, nor advice as to what I should do if they did not compensate me, e.g. that I could take the matter up through a COMPLAINT - if necessary referring then to the FOS. It was clear that the bank seemed to have NO 'PROTOCOL' for advising clients what to do, or expect in the event of such a mishap - indeed there was no communication for two of my cases once reported, and only one of my cases did I receive verbal communications wanting ONLY to know TWO things, namely:-


      1. Was I cold called - which the bank confirmed WAS illegal

      2. Did I make the payment 'willingly' - which I did, (but it is more accurately described as 'unwittingly'! - i.e. deceived by fraudsters) - BUT it was AFTER being 'cold-called'........


The point is that the bank again I believe was in breach of compliance in not 'treating their clients fairly', and not explaining any 'process' or procedure they would adhere to, nor explanation of what I could expect, or any options I might have.






You can see that I would like my 'actual' questions to be answered therefore, which then no doubt explains why you make your statement "the bank is NOT liable"?

Please explain therefore.

Thank you

Mark

18.05pm 18th August
Customer: replied 3 months ago.

Hello

You never replied to my last message below dated 18th August 13.04?

Please would you ask a moderator - soonest - to find someone else, since I need my questions answered - still.

Thank you.

Mark 22nd August 22.00pm

Expert:  Jo C. replied 3 months ago.

I'm not really sure there is very much I can add.

You are trying to make the bank liable for your misfortune. They are just plain not.

Expert:  Jo C. replied 3 months ago.

Whether they have not complied or not is a non issue from that point of view.

You can complain to the FSA but that doesn't take you any further forward from the point of view of making them liable for your loss.

Customer: replied 3 months ago.

Thank you, ***** ***** do not seem to able to get through to you - so consequently, please would you opt out of my questions asked.

For your reference - in order to help other questioners - you did not SPECIFICALLY answer - given cold-calling is an illegal act, is it LEGALLY true that any SUBSEQUENT transaction BASED on the illegal act is Null and Void?

This seems a perfectly fair question for a lay person to ask a lawyer........

This is why I need another lawyer after repeatedly asking you to answer MY questions.

I now await a new legal specialist therefore, and am sorry we do not seem able to understand each other.

16.30pm 23rd August

Expert:  Jo C. replied 3 months ago.

Ok. Good luck with this.

Customer: replied 3 months ago.

Thank you, ***** ***** for you.

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