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| North Star Funding Solutions Tom Ellis frauds that take up front money and promise the world and produce nothing Internet, Maryland |
| 7th of Oct, 2011 by User443077 |
I went to these so called moeny men with a project that they said all i need to do was put up escrow of 2 million dollars and pay their upfront fee of $15,000 and i would have a bank instrument loan. the fact is they have done nothingf they dont even have a bridge lender to help the clients all they did was drain me with smoth talk and promises. They screwed the poor lady that brought me to them for moeny also . beware they dont even have an office it is in executive space. these are to retards scamming people all over the world.
my research found this about these so called loans.
AMAZING FACT: For some strange reason most victims of fraud walk away from losses of One Million Dollars or more. They do NOTHING to get their money back!
In my experience of over 20 years representing clients in the securities trading, and the instrument leasing and monetizing businesses, many clients come to me who have lost thousands and millions of dollars and decide to not do anything serious to get it back. They walk away from Two-Hundred and Fifty Thousand Dollars! They walk away from One Million Dollars or more! I will say it again: They walk away from $1,000,000 or more! They wire $250,000 or $1,000,000 to a fraudster they do not know, but are unwilling to pay $25,000 to try and get it back. It defies logic.
What does this tell you about the fraudster? It tells you that few victims will go after the fraudster…and probably none. The fraudster has both a license to steal and a stay out of jail card, and the victim issues the card. Amazing! And the corollary of this conclusion is that this is why there are so many fraudsters in this field…because it is easy to get away with it. Is that nice to hear? So if you don’t have a conscience, you could make millions being a fraudster with little or no risk.
The damage to the victims is devastating. Let me tell you, these victims are broken...sometimes beyond repair. They often have lost their life savings, lost their marriage and family, lost their businesses, and worst of all, lost their health. The loss from the crimes of these fraudsters in bank leasing transactions is very personal and the cut is way deeper than anyone who has not gone through it can imagine. Yet few victims do much about it. One victim I know paid a London fraudster $3 million, got nothing back except he lost his family, their home, and alcohol abuse makes him unemployable.
SECOND AMAZING FACT: People do not have to be defrauded of their money if they seek experienced counsel prior to giving anyone any money. Sounds pretty basic? You would be surprised how many fraudsters make a big living because people do not seek counsel prior to parting with their money.
As an example to my fellow lawyer, following is the nature of my practice with regard to leasing of bank instruments and their monetization:
a. Recovery of Money Lost in Instrument Leasing Transactions and Fraudulent Trading Programs. I use my own strategic plan (See infra.) to recover funds of clients who have lost money on “bank instrument leasing transactions†and the attempt to monetize the instruments. I charge a minimum retainer of $25,000 plus 10% of the amount recovered (My profit comes in the 10%; the $25,000 covers expenses and overheads.). You don’t have to, but I allow payment terms on the $25,000 retainer. My method of recovery is discussed below in a quick overview and I call it:
THE “TAKE NO PRISONERS
AND MAKE THEM PRISONERS APPROACHâ€
I prepare an evidentiary criminal prosecution package which contains all the evidence in proper trial ready legal form against the fraudster. I want this guy either to give my clients funds back or start a long prison term…its “either orâ€.
I do the following with the evidentiary prosecution package:
(1) Show the prosecution package to the defendant fraudster so he can clearly and visibly see the evidence against him and the long prison term he faces (About 50-60% of the time the case is settled at this stage to the satisfaction of the client), and
(2) If the defendant does not return my client’s funds shortly after I present the evidentiary package to him, then I endeavor with great persistence to persuade law enforcement to prosecute these fraudsters and in the process get an order of the court for restitution of my client’s funds.
You must be wondering….Why do you have to have a prosecution evidence package? Why can’t you just walk into the F.B.I. and file a complaint? That is a good question, and the answer is that since 9-11 it appears that the F.B.I. has been inundated with homeland security matters and unless the client’s loss is three or four hundred million dollars or more, it is difficult to get them to move on your case. The professionally prepared “prosecution evidence package†is there to help solve this problem by substantially reducing the investigation requirements as the evidence of the case is laid out on their desks. And for State and local law enforcement authorities the prosecution evidence package is there to help them understand the complexities of a crime they normally do not see.
I have found through years of observation and practice that civil suits often only enrich attorneys and seldom (i) work as they take many years with huge legal fees and (ii) the client’s funds are seldom actually collected. (NOTE: From lack of experience in this specific field, most attorneys who take these CIVIL cases do not know that they are usually pursing a fruitless path.)
BRUTAL TRUTH! If a potential Lessor of an instrument cannot pay $2,000 to save himself from being defrauded in a world of great fraud, then, (a) he does not have the intellectual capability to be in this business or (b) he does not have the capital required for success and by all logic and experience will lose his money. He should immediately withdraw from this endeavor.
A PRECAUTIONARY NOTE ON “STRUCTURED FINANCEâ€
In the 90’s structured financing techniques were operating in the capital centers of the world to provide creative forms of finance, multi-definitional forms outside the traditional financing paths. These techniques became popular even more popular after the credit squeeze of 2008 and which continues through the present. In the hands of the largest banks and investment banking firm, the structured finance techniques have been either beneficial or horrifically harmful, depending on the particular technique. The important point of this note is that the term “Structured Finance†has spread from the capital centers to the fraudsters in every corner of the planet and has become a buzz word for all kinds of fraudulent schemes, which often have in their content disguised elements of the leasing and monetization of bank instruments. Consequently, “structured financing†programs should be carefully analyzed for their fraudulent purposes. Beware, that any financing program can be labeled “structured financingâ€, which often is just a new way of describing an old fraud scheme. I see several a week…some are workable…most are frauds.
BUSINESS LOGIC OF AN INSTRUMENT LEASING TRANSACTION
I 1. A very rich fellow has $100 million dollars. He wants to create a standby letter of credit. He deposits the $100 million dollars in the bank that is going to issue the standby. With this money as collateral the bank will issue the standby (Bank will not issue standby without collateral.). The terms of the standby should allow the beneficiary of the standby to borrow $100 million using the standby as a guarantee of repayment to a lender.
2. A second gentleman wants to lease the standby for $3 million for 60 days and use it as collateral for the $100 million loan; i.e. if the second gentlemen borrows the money using the standby as collateral and he defaults on the repayment of that loan then the lender can draw $100 million on the standby to pay the defaulted loan.
3. So here is the deal: The fellow with the $100 million risks it all in exchange for a payment of $3 million leasing fee. I repeat: The fellow with the $100 million risks it all in exchange for a payment of $3 million leasing fee. He puts up $100 million and he gets back $3 million if the beneficiary defaults on his loan secured by his standby letter of credit.
4. Now, who would make that deal? Answer: No one. Who would risk 100 million dollars for a return of 3 million? If it doesn’t make business sense, then there is a problem. You can see by this example that instrument leasing cannot be what it is purported to be; i.e. free money.
5. So what is the real reason someone would invest $100 million to buy a standby letter of credit and allow someone to lease the standby for 3 million dollars a month (3%)? The answer is: The standby letter of credit is set so that there is no possibility that the instrument will ever be called on and the money lost; i.e. there is no risk, and that is why he puts up his money.
6. This process is also used with other instruments such as certificate of deposits, bank guarantees, cash deposits, etc. The story is the same, only the instrument is changed.
WARNING! BE AWARE THAT A STATUTE OF LIMITATIONS IS RUNNING ON YOUR MATTER AND YOU MUST ACT TO PROTECT YOUR CLAIM, OR IT WILL BE LOST FOREVER! THIS IS SERIOUS BUSINESS!!!
On several occasions I have drafted a set of documents to set up instrument leasing programs. This work has been done for either (i) an applicant with the collateral money to create or back an instrument or deposit for leasing or (ii) for a broker that has found a “sugar daddy†to put up the money. I have set up a number of these instrument leasing programs and none of these clients have been prosecuted for anything...and will not be prosecuted in the future. And they have not lost a dime.
Setting up an instrument leasing program can be (1) very lucrative (These clients paid me $25,000 and have made millions!) and (2) what they did is completely legal. The point of this story is: As a lawyer, in capable hands this is what you are up against; legalized thievery.
INSTRUMENT LEASING IN GENERAL
The leasing of instruments is a worldwide phenomenon that has been ongoing for over thirty (30) years. Usually, it involves a client leasing a certificate of deposit, bank guarantee, standby letter of credit, a cash balance in an account or some bank or brokerage house. The client is asked to pay a “leasing fee†to lease the instrument. An example of a leasing fee may be a monthly payment of three percent (3%) of the face amount of the instrument, and the term of the lease is anywhere from one month to a year or more. The leased instruments are usually in very large denominations; for example, the most common amount is One Hundred Million dollars ($100,000,000.00), but it can be any amount in dollars or Euros. Thus, the lease payment for a $100 million instrument may be $3 million for a month or two for the alleged use of the instrument (3% for 60 days is very common).
for an expenditure of this amount, one would think that a reasonable businessperson would obtain counsel for such a transaction, but ordinarily and unfortunately they do not until after a substantial payment is made.
PURPOSE FOR LEASING
1. Finance Real Property Development. In this scenario, a developer is seeking financing for the development of a real estate project. The developer is told that if he leases an instrument, that instrument can be used as collateral for a loan. Of course, the next step facing the developer is to obtain a loan using the leased instrument as collateral. (This purpose is discussed more fully below.)
2. Invest in Securities Trading Program. In this situation the investor (client) seeks to obtain collateral for a loan with the proceeds of the loan being invested in a security trading program (sometimes called “high yield investment programs†or more recently “platform tradingâ€). Again, once the client has obtained the instrument, he must find someone to loan against the instrument.
3. Financing Other Purchases. Like the need to finance a real estate development, sometimes the client wants to finance some other type purchase; e.g. purchase a corporation, buy a business, etc.
4. Credit Enhancement Purposes. Commonly there is the case where the client either has no credit or his credit is insufficient to borrow funds to purchase a large asset (e.g. a $50 million company). Consequently, he wishes to enhance his credit by leasing an instrument to show on his financial statements for loan purposes. We should just get rid of this idea right now. Here is the problem, if you list the credit enhancement amount on your financial statements, and you know it is only leased by you and that it has to be returned to the Lessor, then you have to list the same amount as a liability. Consequently, the asset and the liability offset each other, and there is NO credit enhancement. Your client pays for NOTHING! If the fraudster tries to advise your client to not tell the lender that the credit enhancement instrument is leased, then this is bank fraud, and if your client “attempts†to get a loan on these financials, just the “attempt†(without success) is a felonious bank fraud, and your client and the fraudster will go to prison as co-conspirators for bank fraud. It is also important to note that there is a second reason that a leased instrument CANNOT be legally used as a means of credit enhancement. That reason is the following: the leased instrument has no value because it cannot be drawn on and converted to cash at any time. The instrument is worthless, and a worthless instrument CANNOT legally be used as an asset to enhance one’s credit. And most importantly, as a lawyer you should know that there is civil and criminal liability on the part of anyone offering, brokering, or participating in the delivery of a leased instrument for credit enhancement purposes. This includes any escrow company or lawyer who serves as an escrow holder on the leasing fees, as they are co-conspirators (civil and criminal) in committing a fraud. So lawyers! Do not act as escrow holders with your trust accounts. Under Federal sentencing guidelines it is worth about 65 months in Federal prison…nice fee, huh? And by the way, if an applicant is your client and he/she has been asked to put up the collateral for a bank to issue an instrument to be leased to third parties, this is a conspiracy to commit a felony and advise them to run…don’t walk. Interpol will soon be on their trail.
5. Compensating Balances. A compensating balance is different from a credit enhancement. In a compensating balance the borrower may deposit or have a third party deposit with a bank or lender a significant deposit to encourage the bank to make the borrower a loan. The compensating balance is not collateral, and theoretically to the uninitiated in banking conduct the bank cannot seek this balance to collect a defaulted loan (though the crooked banks often do). BUT you cannot legally use a leased instrument as a compensating balance without disclosing that it is a leased instrument and has no value because it cannot be called on.
[IMPORTANT NOTE: Please do NOT call me with regard to seeking a provider of leased instruments or a source of monetizing these instruments. I am a lawyer and not a broker. Read the rest of this Article and you will understand my position. Further any information of any kind that I have received as to such sources has come through my clients, and such information is the subject of the attorney-client confidential relationship and cannot be disclosed to third parties.]
HOW INSTRUMENT LEASING WORKS
1. The Applicant. Instrument leasing programs begin with an investor who has cash or bank credit. This investor is called the “Applicantâ€. (This applicant-investor is not to be confused with your “client-investorâ€) The Applicant applies to a bank for the issuance of an instrument. For a certificate of deposit, bank guarantee, or standby letter of credit he has to deposit the face amount of the instrument in the issuing bank. Usually the issuing bank is paying interest on the amount deposited in existing accounts, and the bank takes a deposit or savings account of the Applicant as collateral for issuing the instrument. It is not uncommon for the deposited funds used as collateral to be off-shore tax evasion funds that the Applicant is seeking to use in such a scheme (a form of money laundering).
2. Inducement to the Applicant. The Applicant is induced to provide the funding to back the instruments for two good reasons: profit and security. With regard to “profitâ€, the Applicant is paid a percentage of the leasing fee, which is added to the interest that he is already receiving on the funds. For instance, by entering such a transaction he can increase his yield from 3 or 4% annual interest from the bank to maybe half of 3% per month (calculated at 3% per month less half for broker fees.) that he receives as leasing fees.
Here is the most important point of this White Paper; to wit: the “safety factor for the Applicantâ€. The Applicant is willing and eager to provide the funding for the instrument because he knows that the instrument will never be called on (cashed) for any reason. These instruments are supposed to be used as a guarantee for a loan; however, the nature of the transaction assures the Applicant that this guarantee will never be called upon as collateral to pay the loan on its default. [What the Applicant is not told by the fraudsters or an attorney is that the Applicant is entering into a civil and criminal conspiracy to commit fraud.]
Why will the instrument never be called upon? There are various techniques and at least one is used in every transaction, and often more than one is used. These techniques are discussed in the next paragraph.
REASONS THAT THE INSTRUMENT WILL NEVER BE CALLED UPON AT DEFAULT
1. Face of the Instrument. Sometimes the face of the instrument is written to preclude the Client-Investor from presenting the instrument for payment. For instance, a standby letter of credit requires the named beneficiary to present the required performance for payment.
a. Client Not Named as Beneficiary. In this situation, because the Client has little or no knowledge of bank issued negotiable instruments, he allows someone else to be named as beneficiary. Thus, in order to collect on default and present the instrument for payment he must rely on the beneficiary, someone other than himself. That other beneficiary is in the “back pocket†of the Applicant and will never make such a presentment. Further, no bank will lend against the instrument without the signature of the beneficiary pledging the instrument, and the other beneficiary will not do so to protect the Applicant.
b. Co-Beneficiary is Named on Instrument. However, either the Client-Investor is not the named beneficiary or is a co-beneficiary and presentment requires both co-beneficiaries to go to the window for collection, and, of course, the co-beneficiary is in the “back pocket†of the “Applicant†and will never go. Another situation is the “Escrow Scamâ€. This is where the Client-Investor is named as the beneficiary, but the terms of the transaction require that the instrument be placed in an escrow and the escrow holder is required to present it on default on behalf of the Client-Investor. Again, the escrow holder is in the “back pocket†of the Applicant and will never follow the Client-Investor’s instructions to present the instrument for payment. Also, the issuing bank will not take presentment from the escrow holder, as the face of the instrument calls for only the beneficiary to do so.
2. Conditions cannot be Met Within Restricted Time Period. Once in a while you may find that an instrument is legitimately issued, but the lease term is, for instance, sixty days. Now, the purpose of the investor-client in leasing the instrument is to generate cash to invest in a trading program, called “high yield investment programs†or “trading platformsâ€. The idea of the investor-client is to lease the instrument, borrow the money against the instrument, invest in a trading program, and from the profits pay back the leasing fee that he has obtained from third parties or borrowed from a bank. Here is the problem: The Lessor of the instrument relies ever successfully on the fact that 99.5% of these trading programs are bogus and the lessee will never find a real trading program within the 60 day term. And the Lessor is safe even if the lessee of his instrument were to find that “needle in a haystack†called a real trading program, because there is no way that the lessee can qualify AND invest in a real private securities trading program within the 60 day term. It is to short of a term. And to add to the problems facing the lessee, the party providing the trading program is often also the Lessor of the instrument or his associates, and you know what they plan to do. And finally on this subject, it is interesting to note that often the Lessor will give the Lessee free extension, because Lessor is very sure that the Lessee will never find a legitimate trading program.
3. Requires Third Party Performance. Either the face of the instrument or the terms of the documents require that a third party perform some condition in order for the instrument to be usable as collateral. The important point in this situation is that the third party will never perform that condition. An example of this situation is where a cash balance is purportedly held in the account of a third party brokerage house or offshore bank, and it is represented that that cash balance can be used as collateral for investor’s loan. The condition that the third party must perform is the release of that fund as collateral for the loan; i.e. the account is placed in such a form that a lender will be comfortable that it can collect on the account in the event of default on the loan. As the third party is in a conspiracy with the promoter, and it will never place the cash balance account (or instrument) in jeopardy as called for by the terms of the documentation? So the investor-client pays the fees, and is unable to fund his deal with the cash balance (or instrument) as collateral. Sometimes the third party is the holder of the cash balance or sometimes it may be a third party escrow holder with instructions to act on the cash balance account according to the terms of the documentation between the promoter and the investor-client, the terms irrevocably favor the promoter.
4. Third Party as Beneficiary with Assignment. Similar to Paragraph a. above, sometimes the investor-client is talked into allowing a third party to be the beneficiary with an “assignment†of the beneficiary interest to the investor-client. Here is what the investor-client does not know: The assignment of a negotiable instrument has to be approved by the issuer, and usually the issuer will not approve such an action. The investor-client on the default of the loan and the need for presentment to the issuing bank for collection cannot make the presentment to get the money, because only the beneficiary on the face of the instrument may do this, and in this case that “beneficiary†is in a conspiracy with the Applicant and the default will not be allowed. Further, if the client-investor take the instrument to a lender and wants to pledge it as collateral for a loan, the lender will not accept it as collateral because the borrower is not the beneficiary of the instrument. Another road block in favor of the Applicant.
5. Fraudulent Escrow. In this situation the fraudster has the investor-client place an initial fee (e.g. $600,000) into an independent escrow, often using a real escrow company. However, the terms of the escrow provide that the escrow holder shall release the funds to the fraudster upon notice from the fraudster that he has arranged the leased instrument. Note, that the notice of performance comes from the one who is to perform, and there is no independent verification of performance by the third party escrow holder. Since there is no way that the investor-client can use the instrument (as you never can), then the escrow holder gambit has worked and the fraudster has the initial fee.
6. Instrument is Only Available on Screen. In this fraud the fraudster gets his fee, or the initial fee, and has the instrument place on, for example, DTC (Depository Trust Corporation) and can only be seen by DTC members with a certain level of access (which is almost no victim as they have no idea how to belong to DTC). In this situation there is always a clause in the agreement that the instrument cannot be withdrawn or transferred or even attempted to be withdrawn or transferred under the threat of immediate cancellation, which means that it cannot be used as collateral. If someone is going to make a loan using the instrument as collateral, then that lender has to have some control via a transfer (e.g. an assignment) of some sort to collateralize the loan. So even if you can get a DTC member with a (certain level of access) to confirm the instrument on the screen, for your initial fee (e.g. $300,000) all you can do is LOOK AT IT…nothing more!
7. Victim is Required to Perform an Impossible Act. This fraud is almost always perpetrated after the victim has paid an initial fee; e.g. $200,000 as a down payment of a leasing fee of $2 million. Please note that the scam is to get the initial fee (in this case the $200,000) and there is no intention of going after the balance on the $2 million because the VICTIM WILL DEFAULT. Yes! This is set up so the victim will create the default, and the fraudsters can keep the $200,000. The victim will default, because after he pays the $200,000 the fraudster will provide the victim with a task that is impossible to perform, and this impossible to perform task is hidden in the language of the contract between the victim and the fraudster…but it is really hidden and only can be found by an experienced counsel. For instance, the fraudster may require the victim to have a bank issue a counter guarantee before a leased instrument will be delivered to the victim. A counter guarantee is a guarantee by a bank that the bank will guarantee that the instrument will be returned unencumbered to the issuing bank at the end of a defined term. No bank will do this. But when the victim fails to get a bank to do this, the fraudster declares the victim is in default and keeps his money. And the fraudster gets away with it because it is in a grey area of the law, and only a sophisticated and experienced lawyer or law enforcement investigator will know how to take this out of the grey area and into a prosecutable action.
8. Misleading Name of Broker. You can be sure that an instrument cannot be called upon if it is brokered by someone who is intending to mislead you by a confusing name of their broker business. For example, “International Monetary Funds†(note the added “sâ€) means to imply that it is really the “International Monetary Fund†(called “IMFâ€) which is “an organization of 187 countries, working to foster global monetary cooperation, secure financial stability, facilitate international trade, promote high employment and sustainable economic growth, and reduce poverty around the worldâ€. Most importantly, for this purpose, the IMF ONLY deals with governments and not with private enterprise.
ALL TALES†MISREPRESENTATIONS In General about “Tall Talesâ€. Almost every fraudster in almost every fraudulent scheme will have what I call “Tall Tales†representations designed to establish the fraudster as an important, trustworthy, and reliable figure in the business at hand. And believe me these are the tallest of “tall talesâ€, but they are all huge lies. Here are a few examples:
a. My family was the founder of EFG Bank in Switzerland.
b. I have direct contacts through two generals in the Pentagon that provide me with fund raising projects from Homeland Security; for example, the bullet train is one of those projects.
c. I have direct access to the Chairman of the Federal Reserve Bank who provides me with clearances for trading in United States banks.
d. I have one of the few certificates issued by the International Monetary Fund for trading directly with it.
e. I work directly with the international accounts division of Bank of America on all my trading programs.
f. I am one of seven people allowed to trade with European banks.
g. I can take any large asset and use it in a trading program.
l these “tall tales†are just lies designed to entrap your confidence in these phony moguls of international finance. Many of them are misrepresentations that the fraudster knows cannot be checked; for example, if he says he has the ear of the Chairman of the Fed, who can check this out? No one. So look for these types “not capable of being checked tall tales†when you encounter prospective fraudsters.
THE INITIAL FEE FRAUD
The Initial Fee Scam. Many times in these leasing of instrument transactions there is an initial fee that is payable prior to the payment of the leasing fee; for instance, in order to just get the transaction underway a fee much smaller than the “leasing fee†is required. That fee may be anywhere from $10,000 to $100,000 or more. What is important to note is that the payment of this fee is the sole fee that that the promoters ever seek to collect; i.e. the whole leasing of instrument scam is set up to defraud the investor out of this fee. Nothing more. After the payment of this fee either the promoter starts making excuses as to why the instrument for leasing is not available thereby delaying the investor-client in moving forward in the transaction or the investor-client starts asking more questions before putting up the large leasing fee. In any event, the initial fee is paid and the investor has lost it. From the promoters’ viewpoint it is better to collect a lot of initial smaller fees than wait for the big “score†with the payment of the larger leasing fee.
THE PROJECT FINANCING SCAM
One of the most common instrument frauds, though it may or may not involve leasing of instruments, is the case where the fraudster offers project financing in exchange for the investor-client paying an upfront fee for the instrument that will “fund the projectâ€. This instrument is usually a bank guarantee (which are used outside the U.S.) or standby letters of credit (which are used in the United States and elsewhere). The institution issues the instrument usually in huge amounts to fund big development projects; however, the instrument is only viable and useable provided that the beneficiary delivers either to the issuing bank sufficient cash to back up the instrument (guarantee that if the instrument is called on there will be cash to pay the default amount) or deliver into an escrow with the issuing bank (usually) sufficient funds to build the project (along with a completion bond to guarantee completion of the project) so that the issuing bank knows that the instrument will never be called on for a default payment. The practical effect, in either case, is that the investor-client cannot get a loan against the instrument unless he independently raises the required balance amount of the project cost (which is also the face amount of the instrument). So now the investor-client has paid for a useless instrument and still has to raise the same money he needed at the beginning to fund his project. This instrument is called by the fraudsters a “non-cash back†instrument, and that says it all.
THE AUTHENTICATION RUSE
Usually the first thing the investor wants to do after seeing a copy of an instrument is make sure that it is authentic. Here is a list of what may happen:
1. Low Quality Issuing Bank. Almost all the documentation that the promoter and the investor sign does not require that that instrument being leased be from a quality bank or institution. There is simply no requirement in most of the documentation. There may be a requirement of the “Top 25 Banksâ€, but who knows what this means. This important issue is invariable overlooked by the investor, and consequently in some of these leasing transactions the promoter provides an instrument that is issued by an offshore bank that has little or no assets behind it. Thus, the instrument has no value as collateral and no bank or other lender will provide a loan against it. So when the instrument is authenticated, it is authentic, but of no value whatsoever for any use other than wallpaper.
2. Nonexistent Bank or Inactive Charter. Sometimes the instruments are issued on familiar “sounding†banks, but the banks either do not exist, their charters are inactive (usually because of bank mergers), or there are other misleading elements presented by the fraudster. For example, if a certificate of deposit is issued by Chase Manhattan Bank (Grand Cayman or BWI), check to see if the Chase Manhattan Bank charter is still active in Grand Cayman after all the mergers Chase Manhattan has gone through over the past few years. Many of these old familiar bank names have inactive charters, and therefore do not have the legal capacity to issue instruments. Also, don’t let a familiar name operating as a trust (e.g. Chase Manhattan Trust Ltd.) be inferred as an issuer of instruments, as trust do not issue these type instruments. But this can be confusing, because there are some banks that have “trust†in their name which DO issue such instruments, and this has to be checked. A company called Vital Funds out of San Diego headed by a Dr. Mitchell Holland leased a certificate of deposit issued by “Chase Manhattan Bank BWIâ€, a bank that does not exist. The people behind this phony instrument have been arrested in Spain, and in my opinion Holland is next (I am working on the case)
3. Parked in a Clearinghouse. In the situations where the instrument is issued and the promoter wants to create a greater aura of authenticity, he will “park†it in a clearing house such as Depository Trust Corporation (DTC) or Euroclear where it can be confirmed on a screen. I say “parkâ€, because there is a clear distinction between “parking†an instrument and placing it for clearing. These houses clear securities; i.e. they complete the trades between buyers and sellers only of securities. However, a bank guarantee, standby letter of credit or a certificate of deposit are not “securities†and are not subject to “clearing†at these houses. But a member of the clearing house group can place a non-security like a bank guarantee, standby letter of credit, or certificate of deposit on the screen so that it can be observed by other members. Here is the important point: placing these instruments on the screen with one of these clearing houses or similar institution (i.e. parking) does NOT authenticate them as being validly issued. So do not let your client be “taken in†by the relationship of the instrument to a clearing house; it is nonsense. Using the vernacular of another saying, you can park a ham sandwich on a clearing house, but you can’t authenticate it.
4. Escrow by Law Firm. The fact that a law firm is holding the instrument in escrow is sometimes used to create an aura of legitimacy and enhance the appearance of “authenticity†of the instrument. Let me tell you from my experience, some of the most prestigious New York law firms have held fraudulent instruments, and usually did not know the instruments were invalid. Most lawyers have no idea how to authenticate an instrument, and that possibility is substantially enhanced when the lawyer is a one a one man office in a “one horse†town in Mississippi or similar abode. Further to my observations over the last 30 years, relying on lawyers is the largest cause of clients losing money to these fraud schemes than any other cause. So, lawyers be careful and give competent advice. And what else you should know is that these losses to fraudsters are usually considered business transactions and not covered by malpractice insurance (but I try and go after the insurance anyway). So if you are going after a lawyer, you have to go after him and his firm…not his insurance carrier. [On a case I am working on, there is a lady lawyer in Miami who well may be on her way to free room and board for several years.]
5. Bait and Switch of Instrument. I have seen the situation where a “sample†of the instrument initially shown is from a major bank (e.g. Citibank). But the documents signed by the parties do not define what bank has to be used as issuer of the instrument to be leased, though using the sample “infers†that the issuer will be a major bank (Citibank in this example). Without a clear definition of the issuing bank, the promoter substitutes in a bait and switch maneuver a lower classified or worthless bank or other institution (e.g. brokerage house). Usually on review of the documents, the fraudster is found to be correct. It is not covered.
6. Misleading Instruments. In example #4 above where “Citibank†is purported to be used, the promoter changes the spelling of the bank to “Citybank†and this is usually not picked up by the investor. This was done on one of my cases and the lawyer involved was disbarred and served time and his client is still in prison (Let me say, it was very hard work getting him there.). Another thing they will do is to use the name of a major bank (e.g. Bank of America), but add to it a branch that does not exist; for example, the name of the issuing bank may be “Bank of America of North Islandâ€). Authenticating this is usually done very easily by a “Google†search for such a bank, but unfortunately, most investors never check. Their greed along with blind trust and awful judgment just sees “Bank of Americaâ€.
7. The Translucent Cash Balance Account. In this situation the investor-client pays for the leased use of a cash balance in an account either in a bank or brokerage firm. Usually the bank or brokerage firm is offshore. The promoters pay a bank or brokerage house to “represent†that they have a large cash balance account that the investor-client can lease for use as collateral for a loan. Now sometimes the money is actually in the account or sometimes it is not. It makes no difference, because the same account is simultaneously used over and over again for a multitude of investor who lease the same “funds†for collateral purposes while the Lessor knows that the structure is such that none of these investor will ever be able to have a lender verify the existence of funds that can be used as collateral and consequently no lender will ever loan against the account. The reasons that the funds cannot be verified for collateral purposes are set out under the section on “REASONS THAT THE INSTRUMENT WILL NEVER BE CALLED UPON DEFAULTâ€.
8. The SWIFT Transfer Transaction. Sometimes the instruments are purported to be transferred by SWIFT message code transmission. This gambit is used to create an aura of authenticity. The main thing to understand that any form of a guarantee transmitted by SWIFT message can be such as to make it impossible to call on that guarantee; thus the SWIFT transmitted guarantee is useless when this is done. First, it is important to note that often these SWIFT message codes do not operate as represented by the fraudsters. For instance, the representation that the instrument will be transmitted to the beneficiary by SWIFT code MT799 is a red flag. Swift code MT799 is not a binding transfer; i.e. it is tantamount to a non-binding letter either advising that the sending bank may do something or requesting the receiving bank to do something. Neither bank has to do it under MT799. The MT 799 is a swift message used between banks to communicate in electronic written form which is usually referred to as a “pre-adviceâ€. For example, Red Bank may send a MT799 message to Blue Bank stating that, “We confirm $1 million on deposit and are prepared to block this amount via MT760 in favor of account 0001 at your bank. Please confirm readiness and receipt.†Often the MT799 will be sent prior to the MT760 being issued. [Typically the MT 760 is issued and the investor-client pays the initial fee or sometimes the leasing fee; he thinks that the MT799 is binding and can operate as collateral. Remember that it is nothing more than a nice letter sent electronically.] However the fraudsters will misrepresent that the MT799 is a collateral instrument. Also, it cannot be used in a platform trading transaction.
The MT760 message can operate as a guarantee. If an MT760 is actually sent, it is subject to all the reasons that the guarantee cannot be called on as stated above. I say IF it is actually sent, because after collecting the funds via a MT799 transaction there often is no intent to send a MT760. No matter how nice this appears, the terms of the guarantee can be such as to guarantee nothing because this MT760 guarantee is susceptible to the same non-performance reasons of other transactions described above. I have spent many an hour with the wire departments of major banks trying to get the language of a SWIFT message correct. Sometimes getting the right wording is not easy, but you can eventually get the wording down to create a real guarantee for lawful purposes or a fraudulent instrument for no good.
UTHENTICATING AN INSTRUMENT
Sometimes the fraudsters will give the investor-client a copy of the instrument that they will be leasing. The initial inclination, of course, is to authenticate it. Authentication issues to check
a. The quality and existence of the issuing institution. You want to determine the financial strength of the issuing bank. In this process you must also check to see if the bank really exists as a bank (or brokerage house), and believe it or not you have to see if the bank is really located where it is represented to be situated. One time a client of mine had an instrument from Bank One of Columbus Ohio. It had a street address, and as standard procedure I hired a private investigator to drive by the address and see if there was a bank there. There was not. It was a vacant lot. I was negotiating a bank guarantee with a bank in Beirut for an Egyptian development project. On the last day of negotiations when the instrument was to be issued, I got up that morning and walked from the Phoenicia Hotel down to the bank, and overnight some terrorist had blown up the bank. The bank was gone. There was no fraud involved, but the story illustrates that a bank can be here today and gone tomorrow. (I had to fly that morning back to Cairo and tell the Egyptians the bad news, “The bank was blown up†and I have to start over with their office in Zurich†Never had to say anything like before or since.)
b. Confirm that the signatures on the document represent people who work at the bank. Usually the instrument is signed by two purported bank officers. Check to see if these people actually work for the bank and ask them if they sign these types of documents. One time I had a meeting at Barclays Bank in London, and my client and I were to meet the officers of the bank in the bank’s lobby. We arrived and were met by two fellows who each appeared to be dressed like a banker. We were invited to follow them to an empty desk on the lobby floor where we sat down and signed some documents transferring a large fee to them for services. Right after I reviewed the documents and my client signed them, a young man from the bank walked up to all four of us and asked, “May I be of assistance?†I slowly took the signed documents off the desk and put them in my brief case, and asked the young man if he knows my two “bankersâ€. He said, “I do not, but Barclays is a big bankâ€. At that point the two “bankers†ran out the front door.
c. Check Telephone Number. If the documents state a phone number (e.g. on letterhead accompanying the instrument), check and see if it is a cell number. Or if there is no telephone number visible on a document, ask the promoters for a telephone number for the bank. Banks do not use cell numbers.
d. Do not take an instrument to issuing bank for authentication or borrowing. Sometimes either you or your client decides to take the instrument to the issuing bank (or a branch) to see if the people who work there can authenticate the instrument. DON’T DO IT! Whomever you talk to, unless you know them VERY well as an existing customer, will not know the answer, and security will eventually be called. BANK SECURITY OFFICERS ARE CRAZY! DON’T TRUST THEM TO USE THEIR HEADS! The chances are almost 100% that one of these people will call security, and when security comes they hold you and have you arrested. That is, Security calls the cops and you are put in jail, often with a high bail. I had a client who called me from the San Francisco jail. Previous to her incarceration, she had come to my office and showed me a bill of exchange for a large multi-million dollar amount issued by a Turkish bank. I confirmed that it was authentic. Unknown to me she took it to Bank of America in the financial district of San Francisco intending to borrow against it. It was referred to security; the security officers never heard of a bill of exchange (Is that a surprise?) and called the police. Nine months passed before a friend of hers got her bailed out. The way to do this is for the attorney to CALL the bank and tell them that you think that one of their instruments is circulating and that it is fraudulent. Tell them that you hope that they can confirm this and get it out of circulation before it can harm a victim or the reputation of the bank. Then fax a copy over to them…do not go to them at the bank!
HYIP AND LEASING INSTRUMENTS
One of the primary purposes for an investor to lease an instrument is to raise funds to invest in a high yield investment program (HYIP) or a trading program. Here is what happens where this is the purpose:
a. You Cannot Use Leased Instrument to Directly Invest in HYIP. Not only can you not directly use an instrument for a trading program because you have to have cash, you cannot use a lease instrument indirectly in such programs. The investor-client tells the fraudster Lessor of the instrument that he wants to lease the instrument in order to raise capital by borrowing against the instrument for investment purposes in a high yield investment program. The fraudster knows that one cannot get a loan against the instrument and consequently with no loan, there can be no investment in a HYIP, because when you buy and sell securities you have to pay for them in cash before you can sell them for a profit. No cash, no HYIP! The fraudster does not tell the investor-client that leasing will not work with a HYIP program investment. In fact, he will often say he knows of such a program in which the victim can invest the funds generated by the leasing of his instrument. Sometimes the investor-client has been lead to believe that the instrument itself can be used as the investment in a HYIP, but, again, you cannot buy and sell securities without paying cash, and you cannot get cash from a fraudulently leased instrument. NOTE: Forget about so-called “blocked funds†transactions…all frauds.
b. More on HYIP’s. If you want to know more about high yield investment programs, then see my book, Lawyers’ Guide: Advising Clients on High Yield Investment Programs. It is 120 pages of truth about such programs, including how to tell the real from the fraud. The book may be purchased at www.hyip-book.com. For further information on these programs, see my free article “The Misunderstood World of Private Securities Trading†at www.townlaw-hyip.com.
WHY IS YOU CLIENT HAVING DIFFICULTY FUNDING AGAINST THE LEASED INSTRUMENT (CALLED BY BROKERS “MONETIZINGâ€)?
If your question is, “Why doesn’t a lender want to loan money against collateral that cannot with certainty be called on in the event of default?†the answer is so obvious to be unworthy of comment. Would you? If you need clarity, see The Scavengers of Leasing Deals immediately below.
The scavengers (or worms) of these leasing deals are the people who represent that they can fund (“monetizeâ€) the leased instruments; i.e. they can find someone to lend against the “unlendable†instrument. They are also known as “brokersâ€. They will always charge an upfront fee (Sometimes a million dollars) for their “servicesâ€, because they have to get their money upfront as they won’t get paid on the completion of promised performance, as they KNOW that they will never be able to fund or monetize the leased instruments. They know that funding is not possible, or should know, as they are knowledgeable in how the leased transaction scam works (i.e. or doesn’t work for the investor-client). Sometimes, the scavenger is in a conspiracy with the promoter of the lease transaction, as the promoter is the one who refers the investor-client to the scavenger. Also, it makes it easier for the promoter to sell the leased instrument to an investor-client when he can introduce a third party co-conspirator who says he can fund (monetize†) the leased instrument; he is then selling a “complete package†of instrument and funding. Who can resist that? And for this referral, the promoter shares the front-end fee paid by the investor-client with the “monetizing guyâ€. Also, the broker who introduces the promoter to the investor-client will often introduce the scavenger as well. You have to bring all of them to justice!
AL(Secret of Real Instrument Leasing Deals)
The secret of making instrument leasing deals work? Get the Applicant Involved! I have been involved in transactions where leased instruments have been used for project funding. Go back to the idea that the applicant who deposits the cash to back a bank guarantee or standby letter of credit (or other collateral instrument) is not going to risk that deposit in return for a payment of one tenth of said amount. For example, if the applicant deposits $100 million in an account to back a $100 million standby letter of credit, the applicant is not going to risk the default on any loan secured by that standby letter of credit in exchange for a lease fee payment of $3 million. Only a lunatic would do such a thing. Therefore in order to actually use the instrument as true collateral to fund a loan that can be spent on a project you have to have the approval of the applicant for such use and exposure. The applicant has to decide to risk the call on his money in the event of default on a loan collateralized by his standby backed by his money. So you have to present the project to the applicant (e.g. real estate development) and get his approval to use his cash backed standby as collateral for a loan to develop the project. The applicant, at this point, becomes an investor in the project and he will want some controls on the expenditure of the money as well as an equity position in the project. This is very complex legal work, and if you are representing the applicant you have to protect him from all possible risks other than the risk he signs up for. For example, if the beneficiary has a tax problem and owes the IRS back tax payments, they may collect the tax liability from these funds to the detriment of the applicant. Consequently, you may have to set up a new special purpose corporation (SPC) that is free of any liens or claims to handle the transaction and avoid these extraneous risks. It isn’t easy, and when I have done them it has taken a lot of legal works, including extensive negotiations with the various counsels involved. Be prepared to spend upward of $100,000 in legal fees and related travel, and it may some time to put together. But the profits may be outrageously high.
Tip: It may work when buying something (e.g. gold, hotel, securities, etc.) and the Applicant is providing bridge financing by causing a leased instrument to be issued for leasing to the Lease Instrument Purchaser. Using the purchase and sale of gold as an example, the Applicant allows a loan to be collateralized against the leased instrument the Applicant provides for the purpose of purchasing gold, and the Applicant receives temporary rights to the ownership of the gold which is then serving as collateral until resold, which reduces the risk to the Applicant, because the on the resale of the gold to a locked-in exit buyer the loan is repaid (and the collateral instrument released back to Applicant). The Applicant earns his leasing fee and a reasonable share of the profits from the resale of the gold, and the Lease Instrument Purchaser receives his major share of profits from the resale of the gold.
Here is a warning on what appears to be a legitimate proposal where the Applicant wants to see a business plan to approve the project. The desire to see a business plan may be “window dressing†to establish the credibility of the transaction, but beware the “showing a business plan†requirement should be a red flag to a possible fraudulent situation. Sometimes the fraudsters will put on a big show about wanting to see and approve the business plan; it is all part of the scam. The key to the deal is whether or not there is access for the time required to an instrument that can be used as collateral for a loan. In these cases, ask for a pro forma copy of the instrument, and attach it to any agreement. as an incorporated exhibit. Then take the pro forma to lenders and ask them, “If I deliver this instrument to your control as collateral for a loan in the sum of $_______________, will you make a loan to me? If the answer is in the affirmative, then get an irrevocable commitment and pay for that instead of the upfront fee for a bad instrument that cannot be used. Warning! Do not take the pro forma instrument to a lender until your client and you are comfortable that it is a replica of a valid instrument. Remember, you or your client may be thrown in jail if you have a fraudulent instrument on such an inquiry (supra). This is a treacherous business, and you need experienced legal help. No training on the job types!
REMEDY AGAINST PROMOTERS AND SCAVENGERS (
The ordinary reaction of most attorneys is to file a lawsuit and enjoin the movement of the funds. This may be a good first start if you can find the funds. Also, it may work if an escrow has been used where the escrow holder has insurance; then consider going after the escrow holder if you can find that it was part of the fraud or there were funds released without following the escrow instructions. But following up on my initial point, I have found that the criminal courts are better prepared to marshal these defrauded funds than the private lawyer. They can order the return of the funds to an appointed court receiver using the threat of a long or longer prison term…something I as a private lawyer cannot do. It can be most effective.
NOTE: I know that civil courts have the right to enjoin assets, but make sure that the fraudster has not defrauded others, as “the others†will seek their remedy in the criminal courts, and the funds collected in the civil matter will be transferred to the criminal court and redistributed among the all the people who lost money (called “clawbackâ€). In these civil suits only the lawyers make money.
DO NOT THREATEN CRIMINAL PROSECUTION TO COLLECT THE DEBT. IN THE U.S. SUCH THREATS ARE AGAINST THE LAW. But you want the case where it belongs; i.e. with a criminal prosecuting authority. So I prepare a pro forma prosecutors case with affidavits, declarations, indexed documentary evidence, etc. and take it to the prosecutors and lay it on their desks, thereby offering to make prosecution easier. I have found that this procedure may facilitate the prosecution of the case, as sometimes it is difficult to get the prosecutors to initiate a prosecution. You may have to take this to several prosecutorial authorities; e.g. FBI, Justice Department, RCMP, State Attorney General, District Attorneys, Serious Frauds Office (London) etc. Don’t delay! You have to say what you mean and mean what you say. Strength and power of a governmental entity is the only thing these fraudsters understand, and sometimes they don’t even understand the consequences they are about to suffer when you seek to get the government to exercise that strength and power.
It is important that these people be put in prison for long prison terms. Most of them are sociopaths who do not know or care about the huge pain they cause their victims. You have to go after them with persistence. Persistence is the key to this strategy [Interesting Strategy: One case that I mentioned above that I am working on is a case of a so-called “Doctor†who operates out of San Diego area and with an office in Florida. He “leases†the above mentioned certificate of deposit issued by a non-existent Chase Manhattan Bank BWI. That office in Florida will place him in the Florida State and Federal jurisdiction, away from his home in San Diego, and it will be more difficult for him to fight the matter once the prosecution begins.]
Persistence takes a great deal of time. And “time†must be paid for, as that is all you have to market. Consequently, unless a prosecution authority has moved on the matter as the result of its own initiative or the filing of a complaint on behalf of some other victim, you must have sufficient financial resources from the client or others to go after these scoundrels and stay with it until the job is done; i.e. translated, this means you have to charge a fee (I charge a retainer plus a low contgingency). Unfortunately, many of the clients you interview will not have the money to go forward. This is very sad, because as much as you want to you cannot donate your time in these cases because the “donation†is too large. Thus, I regret to say, most of the time these fraudsters get away with their illegal activities, because (i) the clients do not have the money to pursue them using your offices, and (ii) the prosecutors are often overworked and will not pursue these types of cases without a big push from outside…often meaning you as counsel to the victim. At least advise them to file a complaint with their local prosecutor even if they do not retain your services. There is at least a chance that the prosecutor may take the case.
INNOCENT CLIENT/HUGE DISASTER CASES
DEALING WITH THE INNOCENT BROKER WHO ALSO CALLS HIMSELF A “PRINCIPAL THAT IS MANAGING INVESTORS’ MONEYâ€
This is the situation where a broker has raised money from investors and represents to those investors that he (1) will invest their money on their behalf in an instrument leasing deal or a trading platform, and (2) the investment will be in the name of the broker or a company that the broker controls. Here is the problem: The broker thinks that the investment he made with the other investors’ money may be bogus, and he wants you to try and get the money back, especially before the investors find out that he may have lost their money. You, as the attorney, are now representing a client that by making a wrong move may be in the middle of committing a fraud. You have a client that may go to prison for a long time if you do not handle this case with substantial skill. The reason you have a problem is that if you have to take the case to law enforcement to seek a prosecution against the fraudster who took the investors’ money from your broker client, they will usually contend (a) that you are not representing the proper client as it is not his money but the money of investors, and (b) because of this problem law enforcement will usually want to treat the investors as the complaining witness(s)…not your broker client, and (c) they often want to treat your client as a perpetrator of a fraud, an “investment advisor†or broker without a license and various other felonies, usually someone who has misrepresented his experience in attracting the investors. The representation of this broker-client in this situation is very tricky. I can only deal with the first thing to do, and that is forcefully advise the client to NOT obtain any other investor funds to cover any type of payment to the old investors, because this may well create a Ponzi Scheme. Ding! Ding! Ding! The years in prison are adding up. And for your self protection as the attorney in the matter, get this agreement to not seek such additional funds in writing addressed to you and signed by your client. Otherwise, you may be aiding in a continuing fraud. If you find out that he has violated this Agreement, dump him immediately and check your local ethics rules as to your need to disclose this to law enforcement.
The Innocent Business Person or Another big problem: This situation often is created where your client is a business person that with the purest of intentions is trying to fund a project for its business, and he seeks outside investors to help him in the funding, and the funding is by investment in a leasing or trading program which goes south. The structure of this type of transaction may make your client the business person an investment advisor and/or broker (not licensed) and criminally liable for the harm done to the investors.
CONCLUSION
You will find that this type of case is heart breaking to say the least. The victims lose their life savings, college funds, homes, businesses, and break up marriages. They lose their health. They lose their friends and relatives as often they have gotten them involved in the transaction as well. When someone says, “It is just business! (Though fraudulent), it is not. It is very personal. I have seen the victims have the same demeanor as one mourning for the loss of a family member. If all the money is taken, there often is a loss of hope. People without hope are the saddest. They make me sad. But most of them have no money left, and you as the lawyer cannot save the world |
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Frank,
You are clearly advertising for business. First and most important, money is held in your own escrow. Does not leave your account unless you authorize it.
You may want to read up on the Bank Instrument guide lines and procedures before posting garbage like this. It very clear you either provided us a project that you have not invested one penny into OR you don't have one penny in your pocket and you are asking a lender for a millions of dollars.
PS--Try spell check next time |
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North Star Funding Solutions is licensed and bonded as a bridge lender. Your long winded write up has to do with LEASED Bank Instruments. We only deal with CASH BACKED Bank Instruments. And Bank Instruments that are freshly cut and backed by CASH which can be verified.
It clearly states that our deposit will be refunded if there is non performance by us or our lender. The only time we won't refund is if we discover fraud with your project OR your loan is approved, commitment letter issued, and Term Sheet issued and you decide to go with another lender.
If North Star was to practice what you have accused us of. It would be tough to secure and maintain a bond and retain a license.
Tom Ellis
Sr. Partner
North Star Funding Solutions 12-29-2011 |
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