Mark Jenner & Co Limited – Forensic Accounting Services

The incidence of mortgage fraud appears to be increasing. Much of it has been coming to light as a result of the down turn in the property market that accompanied the current general economic down turn or “credit crunch”. When property values reduce to below the level of the mortgage that has been advanced on it the lenders begin to sit up and take note.

One of the pivotal areas within the whole property business is the conveyance process. This is where two firms of solicitors will represent the seller and the buyer respectively and ensure that money is transferred properly in return for the title to the property.

Most people look to pay as little as possible for the speediest conveyance possible. 99 times out of a 100 this probably works well enough. However, property law is complex and when things go wrong they are usually the unusual issues that many swift sale transactions would overlook. This is why for larger more expensive properties, even though the process is essentially the same, the conveyance fee is higher because of the higher risk of losing more money.

The buyer’s solicitor will take receipt of mortgage funds and documents that the sale process relies upon, such as valuations and certificates of building regulation compliance. The solicitor manages the whole process and is uniquely positioned to be able to vet the process for fraud. Indeed, all solicitors have an obligation to “know your client” for the purposes of anti money laundering regulations 2007 and to report any suspicious financial activity they come across.

A typical mortgage fraud will involve a property company either selling in its own right or acting as agents for property holding companies. They will inflate the property prices based upon the rental incomes that they say can be obtained from the properties. There is no law to stop them doing this. If a glossy brochure says that a three bedroom student flat costs £250,000 and allege that each room can earn £90 per week – then this indicates a return on investment of 5.6%. This would be an acceptable return in the property business (there is no standard as it varies from region to region, property to property). However, it does rely on the landlord letting all three rooms out for 52 weeks of the year and achieving the required £90 rent.

If the property was sold as bricks and mortar at an auction it might sell for £150,000. However, the valuation provided by the surveyor to the mortgage company will be based on the rental income and possibly on similar properties that the same development company has been selling nearby. When property prices were increasing this practice can be overlooked. When prices are plumetting and people try to realise their assets the overvaluation is discovered.

The conveyance process should spot this practice. The valuation used for the mortgage, arranged by the property company, should not be relied upon and any solicitor worth his or her salt will say that an independant valuation should be carried out. Any savvy potential investor will want to get a feel for property values in the area that they are buying anyway.

Where a problem arises is when the property sales take place in London with a lot of glossy marketing hype and the properties being sold are, for example, in the North of England. During the early 2000s there was a surprising amount of spare capital and credit available (as everybody has now come to realise) and individuals were mopping up buy to lets on 100% mortgages without even visiting them first. It is hard to believe but everybody was riding the wave of success and were blind to the possibility of a property crash.

In some cases solicitors were being appointed by the property developers on behalf of the buyers. They were happy to take the business, 100s of transactions a year at £600 per time. The trouble is that they were not looking for overvaluations, turning a blind eye to the gifted deposits (thus facilitating 100% mortgages). In short, a few conveyance firms were a party to the mortgage fraud. Developers, solicitors and surveyors conspired in what was much more than sharp business practice to ensure that by the time that the property values crashed in about 2007/08, many buyers lost their investments and went deeply into negative equity. The mortgage companies that were involved in the property company that I investigated lost on average £63,000 on each and every property where they advanced loans (there were several 100s of properties in this one case) thus they felt the impact of a very large multi million £ mortgage fraud!

Firms were shutting down in 2009 ahead of their October PII renewal (the Law Gazette)

Many conveyance firms have felt the pinch as a result of the greed of a few. All firms must have professional indemnity insurance in place that covers them for fraud amongst other things. Such is the increased incidence in mortgage fraud that these firms have faced severe hikes in their PII cover. For example one firm reported an increase of 550% to £110,000, some 25% of turnover! Some firms have been shutting their doors to conveying business and some have even gone into administration to avoid paying the bill when due.

Organised criminals such as fraudsters, drug dealers and people traffickers all deal in large amounts of criminal proceeds. They need some way to manage this money, so they can spend it without the authorities seeing that it is proceeds of crime. They need to clean the money – to launder it. Money laundering is the biggest financial crime there is, because it encompasses all the other crimes.

The money laundering of criminal proceeds is not easy, as most countries have enacted severe legislation (some say draconian) in an attempt to stop the proceeds of crime benefiting the criminals. In the UK the Proceeds of Crime Act 2002 was the beginning of the big thrust against the organsised criminal in an attempt to hit him where it hurst most – in the pocket. The Act and associated Money Laundering Regulations have brought in a raft of measures that include the appointment of professionals such as lawyers and accountants to act as gatekeepers between their potentially criminal clients and the law enforcement agencies.

Now professionals have a legal obligation to firstly ensure that their clients are legitimate individuals or organisations and secondly to report any suspicions they may have, that proceeds of crime may be being transferred. This means that they have to do detailed checks on their clients before accepting work from them, to make sure they are who they say they are, and also to educate all staff to know what to do if they should come across a suspicious transaction that might need reporting to the authorities.

Previously the criminals would recruit professionals in order to give them a veneer of respectability. Lawyers would be asked to set up corporations that would be used to layer the criminal proceeds in different cities or even countries. Accountants would prepare accounts that absorbed proceeds of crime within legitimate accounts. Bankers had already been targeted by the authorities in the fight against money laundering and have similar obligations to fulfil.

Professional negligence is now a major crime. A lawyer or accountant found to be assisting in the laundering of money can face up to 14 years in jail and would no doubt face swinging asset confiscation proceedings as a matter of course. It is not possible to claim client confidentiallity either. Even a lawyer, who is normally able to claim legal priviledge in communications with criminal clients, cannot turn a blind eye from reporting money laundering of the proceeds of crime to the appropriate authorities.

The Proceeds of Crime Act 2002 is often used as the relevant legislation in cases of professional negligence. It is difficult for an accountant to say that he thought criminal funds were legitimate, when as a financial expert he ought to have known something was amiss. The Fraud Act 2006 could also be used, as dealing with client’s ilegitimate funds could easily fulfil its definitions of fraud:

The professional must seek to protect himself and his staff by taking all appropriate measures, appointing a Money Laundering Reporting Officer (MLRO), ensuring Know Your Client Checks (KYC) are undertaken per the Anti Money Laundering Regulations, educating all staff and ensuring that appropriate action is taken when suspicious activities are discovered (SAR). There is now no excuse for inadvertant mistakes.