Mortgage Fraud Solicitors - The Offences and Strategy Explained
Since the property and banking crises of 2008-2009, specialist mortgage fraud solicitors' have seen their work take on serious political significance. Several of our major High Street banks are now so heavily indebted to the Government that they are effectively owned by it. The so-called irresponsible lending policies of those same banks are leading them and the state to search for scapegoats, forgetting that ordinary people were actively encouraged to climb aboard the buy to let bandwagon as an alternative to a pension.
Banks were happy to lend during good economic times with lax credit requirements. However, when mortgage repayments dry up, or property portfolios collapse, if they think it will assist them in retrieving money they have lost, those same banks may bring in the Police or Serious and Organised Crime Agency and cry foul on their former customers or any professionals who might have assisted in the transaction.
This can result in both property investors and professionals such as surveyors, mortgage brokers, financial advisors, accountants and solicitors being targeted in criminal proceedings. A particularly uncomfortable aspect of these proceedings is that they can be backed at a high political level, because it is the government that is now underwriting many of the UK's biggest lenders.
These investigations are complex and can be a terrible blight on the business and emotional state of anyone in the firing line. For those for whom reputation is at a premium, an active policy of early intervention is essential. Immediate consideration should be given as to the instruction of an experienced firm of mortgage fraud solicitors.
What is Mortgage Fraud?
Mortgage fraud is a generic term for the offences which involve deceiving a lender about an aspect of a secured property loan in order to obtain that loan.
The offence also covers involvement in the transfer of that money by any professionals or other individuals where they are aware of the deception. Mortgage fraud offences tend to now be charged under the Fraud Act 2006, or if the allegations predate 15th January 2007, under various offences of the Theft Act, and under common law fraud provisions. Offences of this sort can be committed in a variety of ways.
Mortgage fraud by exaggeration or false information
Experienced mortgage fraud solicitors will be familiar with two broad categories of mortgage fraud. The first involves deceiving the lender about one or more of the aspects of the loan such as:
Employment status and history
The income of the borrower
Debts or other liabilities of the borrower
The value of the property
The identity and source of other funding for the deposit etc
Misrepresentaton as to the purpose for which the loan has been obtained eg is the mortgage intended for personal residential use or as an investment
Any other payments which will be involved
(for example incentives outside the scope of the mortgage and deposit)
The overssoverstatementtatement of a position can mean that there is an impact on a lender's risk assessment of a particular transaction. I.e. the lender ends up agreeing to a transaction it might not have entered into had the correct information been provided. As such, the reality is that this offence can be committed even if repayments have been maintained and there has been no actual financial loss to the lender. The impact of any misstatement in an application on the actual decision to lend is something that must be considered in cases such as these by mortgage fraud solicitors acting on behalf of their client.
The Second Category Relates to Completely Fictitious Deals:
The Identity of the borrower.
The proceeds of a loan (often for a remortgage) are provided to someone who does not have an interest in the property concerned, or does not him or herself exist. Fictitious sales of property take place to raise finance for a non-existent buyer, who is connected to or who is the ‘seller', often many times at increasing loan values, the profit being the product of the fraud.
The Transfer of Money.
In addition to Fraud Act charges which might arise, the transference of money pursuant to a dishonest misstatement may also give rise to money laundering offences. A lawyer or other professional involved in this part of the transaction may be prosecuted for money laundering offences under the Proceeds of Crime Act.
The second category above often relates to large scale so-called ‘mortgage fraud rings'. Prosecutions involving this type of case usually result in several different defendants being charged as part of a conspiracy, which means being part of a plan with other people to commit an offence or offences.
Individuals accused of a single domestic mortgage fraud
At the less serious end of the spectrum of mortgage fraud cases is an allegation that someone has made a single fraudulent statement (for example regarding income) in order to obtain a single residential mortgage.
This is the type of offence that will often not result in charge if it is discovered and may not result in a prison sentence should it proceed to court. A lender's motivation to proceed will often depend on whether the deceit has resulted in an inability to pay and a repossession of the property.
Mortgage Fraud Conspiracy Large Scale Frauds
Conspiracies to defraud are cases in which several parties are charged with being involved in, and having knowledge of, the same plan to defraud. Often it is not just borrowers and their associates who are charged, but also any professionals who have assisted in the transaction such as surveyors or lawyers. Bank employees or brokers may also be charged if the investigators believe this is justified.
Where conspiracy is charged, it is often a result of a large scale investigation concerning several properties. Usually, a lender's in-house investigation department will have done much of the pre-charge preparation and will be in communication with the police throughout the preparation of the prosecution case.
Where a property portfolio has been repossessed and a bank has been left out of pocket, perhaps by millions, serious bank and government investment will be put behind the prosecution, who will, of course, be hoping for some of the spoils if they achieve convictions, in the form of recovering assets from defendants involved via the proceeds of crime act. This means that the defence mortgage fraud solicitors must be organised, focused, and know what they are doing. This is specialist work. These cases often involve multiple property purchases, resales and/or remortgages, and the lawyer needs to understand how these transactions work.
At the extreme end of these frauds are the cynical frauds where no honest intentions with regard to even maintenance of the mortgage payments were ever intended, and multiple remortgages and sales have released large amounts of cash. This type of mortgage fraud ring is considered the most damaging both to the economy and to confidence in the marketplace generally, and because of this it will often result in the strictest sentences. There is a perception, justified or not, that at the extreme end this type of transaction can be linked to illegal drug distribution businesses, other organised crime, or even terrorism.
This perception is perhaps another reason that there is such a high level of motivation to prosecute mortgage fraud effectively. The job of a good mortgage fraud defence solicitor therefore can often include pointing out the legitimacy of the client's business interests, on the whole, to proactively portray an accurate picture of someone who is far away from these negative stereotypes.
Professionals (including solicitors) Accused in Mortgage Fraud Cases
While the legal mens rea (mens rea means the mental blameworthiness) required to be proved remains the same for a professional person suspected of involvement in mortgage fraud, the acumen and experience of that professional person will often be deployed against him by the prosecution.
It will be argued that because of that experience and acumen s/he must have known or ought to have known that the application or transaction was fraudulent. The real situation can be that such propositions are often far from the reality of the lives of busy, under-resourced professionals. That said, dishonesty may be established in many different ways, and a prosecution will rely on a number of factors to prove its case. The job of the mortgage fraud lawyer is to be tenacious in the fight for each point contended up to trial.
Solicitors and other professionals are in fact specifically on notice from their governing body (In the case of solicitors from The Solicitors Regulation Authority) in respect of certain triggers which should make them aware that a transaction may be bogus, or contain a dishonest element. Specialist mortgage fraud solicitors will also be aware that, in addition, POCA (The Proceeds of Crime Act) 2002 imposes a duty on professionals to report suspicious financial transactions to the authorities. Such trigger circumstances include:
Multiple recent remortgages or sales on a property
A large unexplained increase in the purchase price from the price the property was bought for
A payment of the deposit direct to the seller
A deposit not paid by the purchaser but by a third party
Any other circumstances which render the status of the buyer suspect
Monies left over from sale proceeds
(or the sale proceeds themselves)
to be paid to a third party and not the seller
Strategy And Good Practice by Mortgage Fraud Solicitors in These Cases
In a mortgage fraud case, having an understanding of the nature of mortgage fraud is essential for a criminal solicitor. These are not normal cases. Key to understanding them is the nature of the complainant (usually the borrower) and their loss.
It is also important to have a degree of industry awareness relating to property. This includes having an understanding of what sort of due diligence one could expect a lending institution, broker or surveyor to have carried out in the particular circumstances. This can be important where the real facilitator of the fraud was not something the client did, but something that another professional defendant in the case failed in their professional duty to do.
However, the fundamentals of case preparation in complex criminal work remain the same. Getting on top of the detail of the case early is paramount. There are often large volumes of papers in mortgage fraud cases, and anything significantly improving or detracting from the case of the client.
Mortgage Fraud Cases Clients with Good Character
One peculiar aspect of mortgage fraud is that defendants often have no experience of the criminal justice system, and have usually never previously been convicted of a criminal offence. In these circumstances, the threat of custody and proceeds of crime proceedings are compounded by the potential loss of a client's good character as a result of criminal conviction.
It is particularly important to note that in the preparation of cases of clients with no previous convictions, the thing that a client perhaps most fears losing, their reputation, is precisely the thing that should be deployed by the defence team to help fight the prosecution.
Character witnesses should be mobilised and statements should be taken before they attend court to take the stand. Evidence should be provided of all of the client's respectability, both personal and professional. Where there is a story to tell of a client who has earned respect over years of recognised contribution in their business or personal life, that story must be told.
Mortgage Fraud Solicitors and Barristers - The Legal Team
Perhaps the most important decision that must be made in a mortgage fraud defence case concerns the choice of criminal lawyer, both solicitor and barrister. The temptation can be to take advice from another professional such as an accountant as to who a good lawyer might be, without doing any independent research for oneself.
Often the accountant may refer the client to a solicitors' firm with which he has an informal referral arrangement, who may not even be a specialist in criminal law, but a civil law practice with some criminal capabilities. Our advice is to find an appropriate criminal specialist, from a firm that has experienced mortgage fraud solicitors. It is important to ask questions about the lawyer in question's experience of similar cases, about the team who will be working on the case, and the preferred choice of barrister.
The Choice of Barrister
Barristers in England and Wales are for the most part self-employed, and this means that choosing a solicitor is only part of the strategy. The solicitor is responsible for the preparation and strategy of a defence, but for the trial itself, the barrister's role becomes pivotal. Having trusted a solicitor, a client has to put his or her fate into the hands of a barrister at the solicitor's recommendation. Clients should demand information about barristers before the trial.
Fraud is a difficult area because it is criminal law, but also financial. The barrister has to have the intellect and financial experience to handle fraud offences, but in mortgage fraud cases, like in all criminal cases, a barrister must be creative and aggressive where required. Good criminal defence is not just about understanding and processing financial documents.
Other Experts such as Forensic Accountants
Wherever there is a case with a complex money trail, and mortgage fraud nearly always falls into this category, forensic accountants should be brought in to do an analysis. A client should know that the prosecution assertions regarding the finances have been tested rather than just accepted by the defence. This means that anything technical should be thoroughly checked by an outside specialist in the area, be it someone with knowledge specifically of the property industry, or just a good forensic accountant.