sirius
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Post by sirius on Sept 28, 2017 19:25:20 GMT
Fraud Act 2006
2 Fraud by false representation
(1) A person is in breach of this section if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation—
B2 Fraud Act 2006 (c. 35)
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A representation is false if—
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
(3) “Representation” means any representation as to fact or law, including a
representation as to the state of mind of—
(a) the person making the representation, or
(b) any other person.
(4) A representation may be express or implied.
(5) For the purposes of this section a representation may be regarded as made if it
(or anything implying it) is submitted in any form to any system or device
designed to receive, convey or respond to communications (with or without
human intervention).
3 Fraud by failing to disclose information
A person is in breach of this section if he—
(a) dishonestly fails to disclose to another person information which he is
under a legal duty to disclose, and
(b) intends, by failing to disclose the information—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
4 Fraud by abuse of position
(1) A person is in breach of this section if he—
(a) occupies a position in which he is expected to safeguard, or not to act
against, the financial interests of another person,
(b) dishonestly abuses that position, and
(c) intends, by means of the abuse of that position—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A person may be regarded as having abused his position even though his
conduct consisted of an omission rather than an act.
My guess is that Section 2, (2) b would likely apply, should it be found that FS did give misleading information, but as in anything lawful/legal, the devil is in the detail!
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mikes1531
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Post by mikes1531 on Sept 28, 2017 22:42:05 GMT
Fraud Act 2006 ... 2 Fraud by false representation ...
(2) A representation is false if—
(b) the person making it knows that it is, or might be, untrue or misleading.My guess is that Section 2, (2) b would likely apply, should it be found that FS did give misleading information, but as in anything lawful/legal, the devil is in the detail! Thanks to sirius for the info. ISTM that it'll all hinge on what FS knew at the time they posted the updates that appear not to have been correct. The lawyers would have a field day trying to prove or disprove that. They'll probably be the winners if it comes to that.
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phil
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Post by phil on Sept 29, 2017 4:12:37 GMT
If it does turn out that FS have given misleading information, then that is definitely fraud. Couldn't FS hide behind the fact that they only reported what they were told, so they didn't do anything fraudulent? Doesn't 'intent' have anything to do with it? (As in knowing something is untrue at the time you report it.) Please note: I'm not trying to defend FS. If they made no attempt to verify what they were reporting then IMHO that is a major failure to act appropriately. I agree, I don't believe FS had any intent to mislead, why should they want to enrichen a borrower at the risk of being open to claims of fraud. It's the borrower who may have conveyed information that they may have known was untrue or misleading.
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sirius
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Post by sirius on Sept 29, 2017 7:40:48 GMT
There is also the isse of FS having a 'duty of care' to lenders and I think that this in particular would be their achilles heel.
Whether FS checked that the woodwork had actually been ordered; that money had been spent on-site and not used for a court case, which would be fraud and FS should have stopped it right there; that they checked all subsequent tranches had been spent properly; that they checked when lenders stated their concerns; when they saw photographs of the site, especially after stating that the alleged 'rendering' work had been done, when said photos clearly showed this to be untrue...........I may have missed something, but this is a long thread and you get the drift.
I am not in this loan, but I am taking great interest in it all the same.
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r1200gs
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Post by r1200gs on Sept 29, 2017 8:12:56 GMT
There is also the isse of FS having a 'duty of care' to lenders and I think that this in particular would be their achilles heel. Whether FS checked that the woodwork had actually been ordered; that money had been spent on-site and not used for a court case, which would be fraud and FS should have stopped it right there; that they checked all subsequent tranches had been spent properly; that they checked when lenders stated their concerns; when they saw photographs of the site, especially after stating that the alleged 'rendering' work had been done, when said photos clearly showed this to be untrue...........I may have missed something, but this is a long thread and you get the drift. I am not in this loan, but I am taking great interest in it all the same. I have no idea what legal remedy there is here, if there is one at all. I do suspect though that the fact(?) that FS did not deliberately deceive lenders would not be a great help if you were after them on the basis of negligence. If/when a loss is announced on tranche five, then I will be taking legal advice.
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Post by harryvederci on Sept 29, 2017 11:19:04 GMT
I think this is a good summary of the legal position;
An action for misrepresentation can be brought in respect of a misrepresentation of fact or law.
There are three types of misrepresentation:
Fraudulent misrepresentation: where a false representation has been made knowingly, or without belief in its truth, or recklessly as to its truth.
Negligent misrepresentation: a representation made carelessly and in breach of duty owed by Party A to Party B to take reasonable care that the representation is accurate. If no "special relationship" exists, there may be a misrepresentation under section 2(1) of the Misrepresentation Act 1967 where a statement is made carelessly or without reasonable grounds for believing its truth.
Innocent misrepresentation: a representation that is neither fraudulent nor negligent.
The remedies for misrepresentation are rescission and/or damages. For fraudulent and negligent misrepresentation, the claimant may claim rescission and damages. For innocent misrepresentation, the court has a discretion to award damages in lieu of rescission
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sirius
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Post by sirius on Sept 29, 2017 17:35:57 GMT
If the chronological order of events, as we appear to understand them, are true, then I would think FS may find it hard to defend both:
Fraudulent misrepresentation: where a false representation has been made knowingly, or without belief in its truth, or recklessly as to its truth:
Possibly all three; probably at least one.
and
Negligent misrepresentation.
I say, "if", of course as this is pure speculation until the full facts emerge.
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r1200gs
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Post by r1200gs on Oct 2, 2017 9:49:25 GMT
Latest update is that there is no update and they know it. But there will be. As soon as they can work out a way to put some lipstick on this pig.
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ashtondav
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Post by ashtondav on Oct 2, 2017 10:12:28 GMT
"Ongoing", perhaps?
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invester
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Post by invester on Oct 2, 2017 10:13:58 GMT
Made me laugh really. You would think by now people should not make promises they can't keep, I rather think it's more likely than not that an update will be later than 48 hours due to some kind of 'unforeseen circumstance'.
The whole debacle is pretty much proof that you can't keep on building a tower based on weak foundations, it'll eventually end up collapsing.
I'd expect that they have read this entire thread and will updating something very bullish to absolve themselves of potential future action.
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rs
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Post by rs on Oct 2, 2017 10:58:56 GMT
Made me laugh really. You would think by now people should not make promises they can't keep, I rather think it's more likely than not that an update will be later than 48 hours due to some kind of 'unforeseen circumstance'. The whole debacle is pretty much proof that you can't keep on building a tower based on weak foundations, it'll eventually end up collapsing. I'd expect that they have read this entire thread and will updating something very bullish to absolve themselves of potential future action. Maybe the court case is back in the frame and going to pay out!
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sb
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Post by sb on Oct 2, 2017 19:55:11 GMT
Latest update is that there is no update and they know it. But there will be. As soon as they can work out a way to put some lipstick on this pig. I thought that your post was a joke. I've just checked the FS website and the latest update really says that there is no update. "We are aware that a meaningful update has not been posted for two weeks now. We will be posting a comprehensive update within the next 48 hours."
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Post by martin44 on Oct 2, 2017 20:13:32 GMT
Latest update is that there is no update and they know it. But there will be. As soon as they can work out a way to put some lipstick on this pig. I thought that your post was a joke. I've just checked the FS website and the latest update really says that there is no update. "We are aware that a meaningful update has not been posted for two weeks now. We will be posting a comprehensive update within the next 48 hours."Maybe some more pictures of some more scaffolding.
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sb
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Post by sb on Oct 2, 2017 20:36:59 GMT
I thought that your post was a joke. I've just checked the FS website and the latest update really says that there is no update. "We are aware that a meaningful update has not been posted for two weeks now. We will be posting a comprehensive update within the next 48 hours."Maybe some more pictures of some more scaffolding. Based on my rough calculation it will take 10-20 years to finish this development at the current speed. I don't think there is any profit left for the borrower in this project. I wonder what leverage FS has to press him/her to finish it.
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Post by martin44 on Oct 2, 2017 21:06:01 GMT
Maybe some more pictures of some more scaffolding. Based on my rough calculation it will take 10-20 years to finish this development at the current speed. I don't think there is any profit left for the borrower in this project. I wonder what leverage FS has to press him/her to finish it. Not going to happen unfortunately.. this is a nailed on unredeemed loan, in the real world it would be a defaulted loan, but in the fundingsecure twilight world, unredeemed.
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