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  • Charles Ponzi created a new topic ' Crown Casino Investigation by Integrity Comm'n' in the forum.
    Law Enforcement Integrity Commission Lacks Independence
    21/01/2020 by Sonia Hickey & Ugur Nedim
    Australia government logo

    Well before the creation of the ‘Super Ministry’ – the Department of Home Affairs – headed up by Peter Dutton, the government created a key anti-corruption body. The problem is that not many have heard of it until recently.

    Despite being set up in 2006, the Australian Commission for Law Enforcement Integrity (ACLEI) remains one of the country’s best kept secrets. In fact, most Australians wouldn’t even know it exists, let alone what it’s primary function is.
    What is ACLEI?

    According to the organisation’s website, the ACLEI’s primary role is to support the Integrity Commissioner in providing independent assurance to government about the integrity of prescribed law enforcement agencies and their staff members.

    But, since its inception, the body has suffered a great deal of criticism for its lack of openness and transparency.

    The creation of the Department of Home Affairs put the Australian Federal Police (AFP) under the same departmental umbrella as the people and agencies it is meant to be investigating in partnership with the integrity commission.

    As such, there have been widespread concerns that this arrangement not only compromises the independence of the ACLEI and potentially tainting the outcome of the investigations it undertakes. More worryingly, it also meant that the outcome of investigations could be kept well hidden, behind the closed doors of the department.
    Investigating the Department of Home Affairs

    Currently the ACLEI is investigating allegations of corruption surrounding interactions between the Crown Resorts VIP high-roller programme and the Department of Home Affairs.

    Information published by mainstream media including The Age, Sydney Morning Herald and 60 Minutes claimed that Crown Resorts had partnered with tour companies backed by organised crime syndicates implicated in drug running, money laundering and human trafficking, in order to attract wealthy Chinese gamblers.

    Leaked emails also suggested that Australian visa and consulate officials in China often fast-tracked visas for wealthy gamblers to come to Crown venues in Melbourne and Perth, despite some posing potential security risks or being persons of interest to law enforcement. Allegations have also been levelled against Border Force official, Andrew Ure, who it’s alleged was able to provide private protection for an international fugitive and Crown high-roller recruiter, known as a junket agent, and in doing so, potentially breach strict professional standards as well as the law. Media reports also revealed that Mr Ure worked at least once for junket agent, a man named Tom Zhou, who is wanted by Interpol for serious crimes.

    One of the original criticisms of the ACLEI was that it never conducted investigations in public forums, so many were surprised when it took the unprecedented step late last year of holding public hearings in Melbourne. At the time, head of the agency, Michael Griffin said he believed there was significant public interest in these matters and the investigation would be best served by hearing matters in public. It has been proven time and again that corruption investigations which involve public hearings are far more successful at exposing and prosecuting corruption.

    Undoubtedly, given the severity of the allegations and the interest accompanying the investigation, this is an opportunity for ACLEI to prove itself as a credible, professional and independent oversight body, capable of thoroughly investigating corruption and misconduct.

    4 days ago
  • Westpac linked to international paedophilia case after Australian man charged
    By Chris Vedelago and Sarah Danckert
    January 16, 2020 — 11.30pm

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    Westpac has been linked to an international paedophilia case following the arrest of a notorious Australian sex offender who is suspected of using the bank’s transfer system to pay for live-streamed child abuse videos in south-east Asia.

    It is the first instance where an attempt to procure abuse of a child has been tied to Westpac’s failure to heed warnings since 2016 from money laundering watchdog AUSTRAC that lax standards for its LitePay and other money transfer systems could be used to facilitate the international child sex trade.

    The Victorian man allegedly attempted to arrange for a child to be exploited in a south-east Asian country recently. It is not known whether the alleged abuse went ahead.
    Current Time 2:41
    Duration 2:41

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    The criminal charges against the man come after Westpac had been privately suggesting to the market since the scandal broke in late November that there was no evidence any act of child exploitation had occurred despite more than 3000 suspicious payments being identified.

    The man, who cannot be named for legal reasons, has been arrested and charged by the Australian Federal Police with soliciting child abuse material and possessing child abuse material.

    Police are still examining thousands of the man's private social media messages.

    The AFP declined to comment because the matter is before the courts.

    Legal restrictions prevent the publication of details of the case, except that the man allegedly used Westpac systems to send tens of thousands of dollars to a south-east Asian country in more than 100 transactions since late 2018 and recently attempted to solicit live-streamed child sex abuse.

    The man has denied any wrongdoing.
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    The registered sex offender had already served a substantial jail term for ordering live-streamed child sex abuse from contacts in a south-east Asian country.

    A Westpac spokesman said the bank was unable to provide comment on specific matters while proceedings are before the court.

    “We have made a number of changes to our transaction monitoring to lift our standards and ensure our financial crime processes meet our obligations,” he said. “Westpac is working co-operatively to resolve this matter with AUSTRAC.”

    The revelation will be a further blow to the embattled institution, which has already lost its chief executive Brian Hartzer, experienced massive share price drops and suffered an intense backlash from the public, politicians and shareholders.

    Westpac announced on Thursday that it had appointed Colin Carter, president of the Geelong Football Club, as the third member of an advisory panel reviewing the bank board's risk, governance and accountability.
    The Victorian man is alleged to have used the bank’s transfer system to pay for live-streamed child abuse videos in south-east Asia.

    The Victorian man is alleged to have used the bank’s transfer system to pay for live-streamed child abuse videos in south-east Asia.Credit:AAP

    The federal and state police Joint Anti-Child Exploitation Team has been investigating numerous referrals about Australian-based sex offenders since AUSTRAC launched civil proceedings against Westpac in November 2019 for committing 23 million violations of anti-money laundering laws stemming back to 2013.

    Among AUSTRAC's allegations are that Westpac should have detected the activities of at least 12 customers, including a convicted child abuser, who were making transactions through the bank’s systems “consistent with child exploitation typologies” since 2013, according to Federal Court documents.

    AUSTRAC claims Westpac was specifically warned in late 2016 about the risk of international funds transfers being used to purchase child exploitation material, a risk that the bank had already identified internally regarding its LitePay and other payment systems earlier that year.

    It is alleged Westpac repeatedly failed to implement an “adequate” system for detecting and responding to financial activities potentially related to child exploitation, at least until June 2018.

    Even then, AUSTRAC claims, suspicious transfers still occurred for some customers into 2019 that were “indicative of child exploitation typologies”.

    The bank’s alert system identified some of these transactions but no action was taken.

    In one case, AUSTRAC alleged that Westpac became aware of one customer’s convictions for child sex abuse in June 2019 but allowed them to continue to send money to the Philippines.

    Financial institutions are legally required to monitor for, prevent and report to authorities any suspicious financial transactions under anti-money laundering and terrorism financing laws.
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    During Westpac’s annual general meeting chairman Linsday Maxsted, who following the AUSTRAC allegations announced his intention to retire, said the bank “absolutely accepts responsibility” for its errors.

    “It’s these claims that have deeply affected all of us. That a possible failing of the bank could put anyone at risk of harm is incredibly upsetting and completely at odds with everything that Westpac stands for.

    “Westpac’s monitoring had identified and filed suspicious matter reports for the customers outlined in AUSTRAC’s claims. However, we acknowledge we should have implemented more robust transaction monitoring earlier than we did. This would have generated more suspicious matter reports to AUSTRAC.”

    LitePay, which Westpac has now shut down, is a low-cost payment system for making international money transfers up to $3000.

    AUSTRAC case against Westpac continues in the Federal Court.

    6 days ago
  • Charles Ponzi replied to the topic Natalie Mouat Ombudsman and Pedophiles in the forum
    Assoc Professor Dr Peter Doherty is referred to in Exhibit J in the filing at the 9th Circuit with the terror/pedophile agency AUSTRAC whose chief is now on Westpac's Panel as result of the pedophile scandal.

    And the CBA "spies" on anti-pedophiles,G4S, are also sued under the Antiterrorism Act by Wilkie Farr (Ravelo's old firm) representing hundeds of US citixens harmed by the 'protection money' paid to the terror organization designated prior to 9/11 namely the Al Quada-Taliban Coalition. The case cites the US Constitution war powers provisions.

    less than a minute ago
  • Exhibit J is with the Global Counterterrorism Council and cites Melbourne IME Associate Professor Dr Peter Doherty in a case about the War Powers in the US Constitution.

    1 week ago
  • NATIONAL WHISTLE BLOWERS DAY CELEBRATIONWALK INORANGE COUNTY CALIFORNIAJULY 30, 2019&NOTICE OFTHEREMEDYTO HELP ORANGE COUNTY,CALIFORNIA AND THE NATION HEAL OUR HOMELESS,BRING AFFORDABLE HOUSINGAND SUSTAINABILITY TO HOME OWNERSHIP"Together we are endinghomelessnessand the theft of property title across America"To: The Orange County Board of Supervisors;Hello, we are Whistle Blowerscoming forward with ourNotice of Remedyand inviting youto join us on July 30 inCelebrationof Whistle Blowerseverywhere. We haveFaith that what we sharewill not only be heard,but acted upon by the Public Servantsin returned good Faith. As the Chairwoman of the National Committee in Support of Resolution 6021 I amtasked with writing this missiveand to deliver the notice of remedy to you.We firstly give you notice and appreciation for your service.Whistle Blowershave come forward for centuries, none more than in the last 15 years as the housing genocide has evolved. Whistle Blowerstake a risk of losing their friends, colleagues, jobs and even lives as they come forward. We on the Committee have suffered great atrocities to bring the evidence of the crimes stealing the land, homes and lives of millions. We network across the globe with other Whistle Blowersseeking to end the corruption that has engulfed our court records as we seek to bring remedy to end the crime spreeand a cure for the housing genocide. Human Trafficking, drug running, gun running and more are connected. On July 30, 2019 Whistle Blowersacross America celebrate the work and sacrifices all Whistle Blowers face in revealing the crimes theywitness, experience and die from. We bring you this information, most of youhave seen it before, and today we have Faith in yourpublic servants oath of office to do the right thing and take action with us.GO TO: the National Whistleblower Day Campaign!"The U.S. Continental Congress passed America’s first whistleblower law during the height of the American Revolution on July 30th, 1778.To honor this history, the first Congressional celebration of National Whistleblower Day took place in the U.S. Senate Kennedy Caucus Room on July 30th, 2015. It was a huge success.Since then, the National Whistleblower Center has held an annual celebration to honor and celebrate the great contributions of whistleblowers. We are strongly advocating for July 30th to be permanently recognized as National Whistleblower Day, and weneed your support."The intent of this missive is peaceful and to invite you to stand in celebration with Whistle Blowerson July 30 and to giveyounotice of a remedy being handed toOrange County. The remedythat bringsan end the financial problems of the county regarding budgeting to address the needs of the Californians and Orange County communities regarding housing and property titles. The growing issues of homelessness, affordable housing and property title theft, identity theft and the use of counterfeit securitiesare at massive genocide proportions, we believe it is a National Emergency. You have the opportunity to bring this remedy to the men and women of Californiaand Orange County (we are sending this to Representatives of other States too).Attached to this mailed missive is a thumb drive withdocumentation of Financial Crimes Against Humanity(a Dropbox link is also providedherefor the evidence and information attached to this missive: crimes are
    continuing every minute of everyday across America,and the world, but today we ask the public servants of California to hear the remedy we bring as the gift we offer. This gift crosses allreligious, racial, political, domiciles and religionsas there is no boundary to the problems of housing and the theft of one's identity being attached to counterfeit securities.Miami Florida Resolution 6021has come to existence because of men who built bridges, Miami Mayor Suarez, Miami Commissioner Ken Russell and Florida Attorney Bruce Jacobs. These men co-authored Resolution 6021and our Committee is supporting them in sharing this information across America.Resolution 6021holds the criminals accountable to pay for the genocide of housing.The accountable are the entities, banks, servicers their assigns and representatives who use fraud upon the courtsthat maytrick public servants into a falsebelief of the Banksstanding to commit unjust takings. Imagine being able to have a self funded budget item that doesn'tcall for taxation orbonds, but is funded millionsof dollars, and even potential for hundreds of trillionsof dollarsthrough criminal fines. This is a reality already in motion. Who can be against having the criminals pay for their crimes as the victims and survivors benefit by the implementation of projects that end the genocide?additionally,To whom it may concernregarding mailed missive,The enclosed thumb Drive contains pertinent documents and videos which are related to this notification and have been pre-scanned for any Trojans, malware and viruses as to ensure network and computer system safety. We have no intent to cause harm, on the contrary, we are seeking to build bridges and bring remedy. Thank you to Whistle Blowerseverywhere and to Public Servantswho chose togive their dedication to the protection of the Constitution and the men, women and children of these beautiful lands we cherish as our home.We build families on California land, Orange County land, on Americaso let us build the bridges that will keep us in our homes (whether it be a tent, sleeping bag on the ground, rental house, or a house we own) and protect our lives from the pirating creating the genocide via Financial Crimes Against Humanity. In celebration of Whistle Blowersand BuildingPublic Servant Bridges with us. See you on July 30.Billie949-535-3090/powersbillie@yahoo.comNational Chairwomanof www.resolution6021&founderof Cc: OCDA Todd Spitzer: 401 Civic Center Drive West. Santa Ana, CA 92701California Governor Newsom130310thStreet,Suite1173.Sacramento,CA95814OC Risk Management600 West Santa Ana BlvdSuite 104. Santa Ana, CA 92701President Donald Trump: The White House1600 Pennsylvania Avenue NW. Washington, DC 20500OC Commission to End Homelessness:333 W. Santa Ana Blvd. 10 Civic Center Plaza room 465, Santa Ana, California, 92701ACLU125 Broad Street, 18th Floor. New York NY 10004Congresswoman Maxine Waters: Head of US Financial Oversight CommitteeCongressman Levin Congressman Hunter Congresswoman Katie Porter Senator Lisa Murkowski: 522 Hart Senate Office Building. Washington, DC 20510San Diego Board of Supervisors: 1600 Pacific Hwy #335, San Diego, CA 92101Los Angeles Board of Supervisors: 500 W. Temple Street #383. Los Angeles California 90012Riverside Board of Supervisors: 4080 Lemon Street -4th Floor. Riverside, California 92501San Diego, Riverside, Los Angeles & Orange County are also noticed as the owners of S.E.C.U

    2 weeks ago
  • Dear Members,

    This is an update on the current status of the Petition of Remonstrance. Valerie Naif and I have successfully gotten our Petition of Remonstrance filed into the Illinois General Assembly. We were also successful in getting Gene Warner’s also filed into the Hawaii Assembly. We have other parties coming forth now who want to join in our Petition of Remonstrance as a Third Party Intervenors, in which I have created a template for, which is attached herein. There are also two other templates on the drop box link, for committee members and non-committee members to get that sent out to the first 8 original parties in California and DC, CC’d as you come forth making your claim as a Third Party Intervenors, in the Powers V BONYM case and the Brashear Qui-Tam.

    We have another packet going out today in response to the 3 committee members recent communications and on-going’s in their Appeals cases (Wyler, Powers and Warner). Everyone will receive an email with the contents of that packet as soon as it gets in the mail today. Val and I have 16 parties that are being notified today (8) original parties in CA and DC and (8) parties in Illinois. Dr. Warner will duplicate the mailing in his Hawaii (6 parties), so the parties involved in the Investigation and Public Order can see the doings of these Criminal Kangaroo Courts and Attorneys in these matters.

    Thank you to all of you who are working diligently to get your claim in and the Remonstrance filed in your State. It is very important to follow-through, as we move fwd, you will only get behind on the filings, as we move these 50 Nation States back to their respective box of limitations in our Republic and end FINANCIAL CRIMES AGAINST HUMANITY.

    In Love and Service,

    :Lorie-Ann: Cole

    2 weeks ago
  • She must be wrong because they re investigated IMEs and WorkSafe's lack of

    2 weeks ago
  • Austrac the FBI and SEC subsequently prosecuted the bankers.

    4 weeks ago

    Nature of claims
    Common causes of action

    What are the most common causes of action brought against banks and other financial services providers by their customers?

    Common causes of action commenced against banks and financial service providers by customers include:

    breach of contract - both express and implied terms;
    breaches of statute - most particularly in relation to standards of conduct such as engaging in misleading or deceptive conduct, ‘unconscionable conduct’ or, in relation to consumer credit activities, breaches of responsible lending legislation.

    Statutory consumer protection provisions, such as unconscionable conduct and misleading or deceptive conduct, are generally mirrored in the Australian Securities and Investments Commission Act 2001 (ASIC Act) for banks providing credit facilities, and the Corporations Act 2001 (Corporations Act) for other financial product and service providers. Although not applying to financial services, the Australian Consumer Law similarly reflects these provisions to protect consumers of other products and services.

    Additionally, for financial service providers other than banks, such as financial advisers, common causes of action brought by customers also include negligence and breach of fiduciary duty.
    Breach of contract

    The legal relationship between a bank and its customer is essentially one of contract, supplemented by laws in equity and tort and by statute.

    Breach of contract claims frequently arise in the context of the Code of Banking Practice, soon to be the Banking Code of Practice (Code). The Code sets out standards and obligations of the banking industry and applies to individual borrowers as well as small businesses. Adherence to the Code is voluntary but all of the large banks are signatories. Although the Code currently does not have legislative force, banks that adopt it by incorporation into their lending documentation are contractually bound by it. Claims under the Code have been used by both borrowers and guarantors to challenge debt recovery action by lenders and as a ground for damages. The most common claim made under the Code is an alleged breach of the bank’s obligation to ‘exercise the care and skill of a diligent and prudent banker’ in selecting and applying its credit assessment methods when forming an opinion about the borrower’s ability to repay the subject facility. Although generally a bank does not owe its customers a duty to exercise care, in contract or tort, when performing its serviceability analysis, this effectively imposes a contractual warranty by the bank about the stipulated standard of care.

    Customers may also allege that the bank has breached an implied term of the contract. Implied terms arise at both common law (such as an implied duty of good faith) and via statute, such as the implied warranty that services will be provided with due care and skill.
    Unconscionable conduct

    Given the expansive yet amorphous nature of ‘unconscionable conduct’, it is a cause of action regularly invoked by customers against banks and other financial service providers. Unconscionable conduct claims are available both at general law (as an equitable doctrine) and under statute.

    To establish a claim of unconscionable conduct in equity, it must be shown that:

    there is a relationship that places one party at a ‘special disadvantage’ of some kind as regards the other party;
    the stronger party has knowledge of the special disadvantage; and
    the stronger party takes ‘unconscientious advantage’ of its position.

    However, under statute, unconscionable conduct operates on a wider basis. For example, a customer under the statutory regime need not establish a ‘special disadvantage’, and a court may take into account a broad range of factors set out in the ASIC Act, including not just any inequality of bargaining power but also the numerical and financial literacy of a customer, any undue influence exerted over the customer, and the amount paid for the relevant services.

    The wider scope of the statutory unconscionability regime means it has almost entirely superseded the equitable doctrine of unconscionable conduct in practice.
    Misleading or deceptive conduct

    Banks and other providers of financial products and services must not engage in conduct that is misleading or deceptive or likely to mislead or deceive. What is ‘misleading or deceptive’ is an objective test, and a bank or institution need not intend to mislead or deceive customers - rather, it is only necessary to show that a customer was in fact or likely to have been misled in relation to a particular matter.

    In some circumstances, mere silence can amount to misleading conduct, for example, where a financial services provider offers a ‘half-truth’ or otherwise there is a reasonable expectation from the customer, on the facts of the case, that the provider, in fairness, would require the institution to have disclosed more.
    Responsible lending

    Responsible lending laws have received significant attention in recent times, being a topic of emphasis in the 2018 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission) (discussed below). Responsible lending laws regulate consumer lending, as distinct from lending for business purposes. Chiefly, it requires lenders to make an assessment as to whether a contract is ‘unsuitable’ for the consumer and make reasonable inquiries about their requirements, objectives and financial situation, and to verify their financial situation. However, the responsible lending provisions are broad, particularly insofar as they require ‘reasonable’ inquiries and ‘reasonable’ verification steps. Reasonable minds may, and do, differ over what precisely is required. Ultimately, the Royal Commission did not find that any structural amendment to the current responsible lending framework is necessary. The view taken was essentially that the current laws should be upheld and enforced (as guided and monitored by the corporate regulator, ASIC). Banks and other lenders have significantly amended their origination practices as a result, which has increased the formalities and burdens on both lenders and their customers.
    Non-contractual duties

    In claims for the misselling of financial products, what types of non-contractual duties have been recognised by the court? In particular, is there scope to plead that duties owed by financial institutions to the relevant regulator in your jurisdiction are also owed directly by a financial institution to its customers?

    Non-contractual claims in connection with the mis-selling of financial products are generally actionable by both customers and regulators. These protections span disclosure requirements, anti-hawking provisions, suitability assessments and general conduct provisions.

    Key non-contractual duties affecting banker or customer relationships in Australia include: the statutory prohibitions on misleading or deceptive conduct, false or misleading representations, and unconscionable conduct. Consumer credit legislation also prohibits misselling consumer products that are unsuitable for the customer. The National Consumer Credit Protection Act 2009 (NCCP Act) specifically states that a consumer product will be considered unsuitable where the consumer is unable to comply with the relevant financial obligations or making the repayments would result in substantial hardship. Additionally, the loan will be considered unsuitable where the loan agreement does not meet the consumer’s objectives or requirements.

    Further, financial services licensees and credit providers are both under a general licensing condition to ensure that their financial services or credit activities are provided ‘efficiently, honestly and fairly’. A breach of this provision can result in penalties for the institution as well as imposition of licensing conditions and, in serious cases, loss of licence.

    The mis-selling of financial products was a key issue examined by the Royal Commission, particularly in connection with the sale of add-on insurance - that is, insurance sold with other financial products (such as consumer credit insurance with credit cards). These were often found to be of little value, either because the customer was ineligible to make a claim from inception, or because the cover, when called upon, provided little benefit to the customer.

    Australia also has anti-hawking provisions that generally prohibit offering financial products in an unsolicited meeting or telephone call with a retail client. In addition to the penalties imposed by the Corporations Act for committing an offence, the person who is impacted by the anti-hawking provision is given a right of return and refund within a designated cooling-off period.

    A raft of disclosure provisions also operate to prevent the mis-sale of products through the imposition of obligations to inform customers before they acquire a financial product, including the obligation to provide Product Disclosure Statements. Chapter 3 of the NCCP Act places disclosure obligations on financial institutions to aid consumers in understanding the relevant credit activities. The Code also contains consumer protections in this area, including disclosure requirements and particular obligations in connection with vulnerable customers or low-income earners.
    Statutory liability regime

    In claims for untrue or misleading statements or omissions in prospectuses, listing particulars and periodic financial disclosures, is there a statutory liability regime?

    As noted in question 1, the ASIC Act provides the core regulations that control the publication of untrue or misleading statements in relation to financial products or services.

    However, misleading or deceptive conduct in relation to disclosure documents (such as prospectuses and product disclosure statements), as well as in relation to material provided to satisfy an entity’s continuous disclosure obligations, is regulated specifically by the Corporations Act (and the ASX Listing Rules for listed entities).

    These laws operate to ensure that any statement provided in prospectuses, listing, and periodic financial disclosures must be accurate, complete and able to be substantiated. The Corporations Act specifically addresses disclosure documents that contain a misleading or deceptive statement, or omit required information.

    Liability for a contravention of these provisions may extend to both the company and individuals who made or authorised the misleading statement. In addition to both criminal and civil penalties for contraventions, the regime also allows aggrieved parties who have suffered damage or loss to bring a civil claim against the company.

    As to the issuance of a prospectus, the Corporations Act provides that the issuers must ensure that the information provided is not misleading or deceptive. Disclosed information will be considered misleading where it is speculative or based on mere matters of opinion or judgement, and not made on reasonable grounds.

    The Corporations Act and ASX Listing Rules also set out continuous disclosure obligations, which require listed entities to inform the ASX immediately of any information that a reasonable person would expect, if it were generally available, to have a material effect on the price or value of the entity’s securities.

    This aims to ensure that investors have equal and timely access to relevant company information. Breach of continuous disclosure obligations has become the primary basis upon which shareholder class actions are commenced in practice in Australia, with shareholders seeking to recover the diminution in the value of their shares once the information that an entity ought to have disclosed at an earlier time eventually comes to light.
    Duty of good faith

    Is there an implied duty of good faith in contracts concluded between financial institutions and their customers? What is the effect of this duty on financial services litigation?

    The courts are willing to imply a duty of good faith in certain commercial contracts, such as franchise agreements. However, there is no prima facie duty of good faith imposed in contracts between financial institutions and customers, and this issue has received little judicial consideration. Accordingly, customers generally invoke the statutory duties mentioned in question 1, including a duty not to act unconscionably (which itself requires consideration as to whether the parties acted in good faith). Typically, those duties are imposed to avoid instances of particular unfairness in the operation of the contract.

    Where the duty of good faith applies, it generally requires the parties to act honestly and have due regard to the legitimate interests of both parties, and in particular, not to act capriciously or arbitrarily to defeat the objects of the contract. However, the financial institution is under no obligation to subordinate its own interests to that of the customer.
    Fiduciary duties

    In what circumstances will a financial institution owe fiduciary duties to its customers? What is the effect of such duties on financial services litigation?

    As noted in question 2, the typical legal relationship between banker and customer is one of debtor and creditor arising from contract. It is not an accepted fiduciary relationship. However, in special circumstances, a financial institution may owe fiduciary duties to a customer. For a fiduciary relationship to arise between banker and customer, the bank must have exceeded its usual role and engendered in the customer an expectation or understanding that it will act in the customer’s best interests by providing financial or investment advice (gratuitously or otherwise) for example. Common situations include where:

    the relationship is one of confidence;
    there is inequality of bargaining power;
    there are agency elements;
    one party undertakes to perform a task in the interests of the other;
    there is scope for one party to unilaterally exercise discretion; or
    there is particular dependency or vulnerability.

    Today, more than ever, banks and financial institutions engage in a variety of transactions and roles. In circumstances where the bank takes on particular fiduciary obligations, in particular where it acts as a trustee (for instance, in the context of financial advice, investment management and superannuation), typical allegations in this context involve advisers or trustees acting in conflict with their duty or failing to sufficiently prioritise the customer’s interests. Even where fiduciary obligations arise, the precise content of a bank’s duties depends on the circumstances and context of the matter.

    In the context of financial advice, there is a specific statutory regime involving the imposition of a ‘best interests’ duty. One recommendation from the Royal Commission, which will likely be implemented, is that this duty should be extended to mortgage brokers such that, when acting in connection with home lending, mortgage brokers must act in the best interests of the intending borrower.

    While a fiduciary can contract to modify their fiduciary duties, they cannot exclude liability for fraud or the deliberate disregard of their duty.
    Master agreements

    How are standard form master agreements for particular financial transactions treated?

    Australia uses standard form master agreements such as ISDA. Those provisions are accorded the full force of contract, but there has been limited judicial consideration of ISDA in Australia.
    Limiting liability

    Can a financial institution limit or exclude its liability? What statutory protections exist to protect the interests of consumers and private parties?

    Financial institutions can seek to limit or exclude particular kinds of liabilities. Most commonly, this is done in relation to institutional clients. As a general proposition, a financial institution is not able to limit its liability or exposure to statutory claims such as misleading or deceptive conduct, on that basis that it would be against public policy. Each of the Corporations Act, NCCP Act and ASIC Act contain prohibitions from contracting out of certain legislative provisions. Australian courts also construe exclusion clauses against the party seeking to rely on them. However, as noted above, parties can contract to exclude or modify fiduciary obligations.

    Australia also has an unfair contract terms regime that precludes certain types of contractual terms in consumer and small business standard form contracts, including limited liability clauses that go beyond protecting the parties’ legitimate business interests.
    Freedom to contact

    What other restrictions apply to the freedom of financial institutions to contract?

    While the general position is that parties are free to bargain and contract, there is an overlay of statutory and regulatory requirements and prohibitions, including under:

    the Code, which imposes particular requirements on banks; and
    statutory regimes in the Banking Act, Corporations Act and ASIC Act (including the unfair contract terms regime) and Superannuation Industry (Supervision) Act 1993.

    The unfair contracts regime regulates standard form contracts to both consumer and small business customers. Unfair terms are those that would impose a significant imbalance in the rights and obligations of the parties, are not reasonably necessary to protect legitimate interests; and would cause detriment to the other party if applied, for example, unilateral variation clauses. The Contracts Review Act 1980 (NSW) also enables the court to make void a contract in its entirety if a provision is considered unjust in the circumstances.

    In terms of financial charges to customers, banks are restricted from charging penalties, being liquidated damages charged pursuant to the contract that are not commensurate with the actual loss suffered as a result of a breach or other contractual implication. This is particularly so in the context of late fees or charging default interest.

    There are additionally laws restricting certain restraints of trade, such as conduct constituting exclusive dealing.
    Litigation remedies

    What remedies are available in financial services litigation?

    Customers can, depending on the underlying cause of action, generally apply for the following remedies:

    specific performance of a contract;
    setting aside an agreement; and

    The remedies available to ASIC, the corporate regulator, are set out in question 21.
    Limitation defences

    Have any particular issues arisen in financial services cases in your jurisdiction in relation to limitation defences?

    As a matter of procedural law, there is a statutory limitation regime in Australia. Each Australian jurisdiction has enacted legislation limiting the period within which certain claims may be brought. Generally, the time period begins to run from the date on which the cause of action accrues. For example, in most Australian jurisdictions, the limitation period for breach of contract is six years from the date of the breach.

    As a general proposition, courts enforce statutory limitation periods strictly, although some particular jurisdictions have exclusions such as matters that are ‘fraudulently concealed’.

    Although not a judicial body, the Australian Financial Complaints Authority (AFCA), being the new external dispute resolution body (see question 27), resolves certain types of complaints, including up to six years after the customer first became aware, or ought to have become aware, of the loss suffered or, if they have already complained to the financial institution via its internal dispute resolution process, then two years following that response. In February 2019, AFCA’s remit was expanded to establish a temporary ‘legacy complaints jurisdiction’ to consider eligible financial complaints outside of AFCA time limits. The Australian government announced the measure as part of its response to the Royal Commission, which considered cases of financial misconduct dating back to 1 January 2008. Between 1 July 2019 and 30 June 2020, AFCA will consider disputes since 1 January 2008 that have not previously been heard and that fall within AFCA’s current monetary limits and compensation thresholds.

    Specialist courts

    Do you have a specialist court or other arrangements for the hearing of financial services disputes in your jurisdiction? Are there specialist judges for financial cases?

    While there is a commercial list in the Federal Court and certain state Supreme Courts for case management purposes, there are no specialist courts for adjudicating financial services disputes. However, AFCA is the new one-stop shop external dispute resolution body for financial disputes (see question 27). AFCA hears both financial and superannuation complaints (previously heard by separate third-party external dispute resolution bodies).
    Procedural rules

    Do any specific procedural rules apply to financial services litigation?

    There are no specific procedural rules applying to financial services litigation. By way of guidance, there is a Central Practice Note dealing with the management of cases in the Commercial and Corporations National Practice Area. This covers commercial and corporation disputes within federal jurisdiction, of which banking, finance and insurance are sub-areas as well as economic regulation, competition and access.

    May parties agree to submit financial services disputes to arbitration?

    Arbitration in Australia is voluntary and it is possible for financial service institutions to agree to arbitration provisions; a more common practice with institutional clients. However, ASIC does not use arbitration as a dispute resolution method with financial service providers.

    Australia is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention). As such, Australian courts will give effect to private agreements to arbitrate and recognise and enforce arbitration awards made in other contracting jurisdictions.
    Out of court settlements

    Must parties initially seek to settle out of court or refer financial services disputes for alternative dispute resolution?

    There are legislative requirements for financial services providers to seek to resolve their disputes out of court, if possible (see question 15). However, generally, they are not required to refer matters to alternative dispute resolution before commencing proceedings.

    While customers are not required to first raise their dispute with AFCA, membership of AFCA is either required by law or is a licence condition of financial institutions that provide financial products and services. Accordingly, in practice, this is often the first step to a dispute, becuase customers can pursue a court outcome if unsatisfied with AFCA’s recommendations. AFCA is also free to consumers and small businesses because it is funded by contributions from subscribed financial institutions.
    Pre-action considerations

    Are there any pre-action considerations specific to financial services litigation that the parties should take into account in your jurisdiction?

    In Australia, there are no specific pre-action formalities generally applicable to financial services litigation. Some states have such formalities as a matter of course in litigation generally.

    Various state jurisdictions and courts have particular pre-action requirements before commencing proceedings, including, by way of example, an obligation to take genuine steps to seek to resolve the matter and subsequently filing a ‘genuine steps statement’.

    There are, however, some requirements regarding agricultural customers as a result of farm-debt mediation regulations. This requires a mediation to be held in certain circumstances before the bank can take enforcement action. While this is only applicable in some jurisdictions, a recommendation of the Royal Commission was the implementation of a uniform national scheme, which will likely be carried out.
    Unilateral jurisdiction clauses

    Does your jurisdiction recognise unilateral jurisdiction clauses?

    Unilateral jurisdiction clauses, also known as ‘asymmetric’ or ‘one-sided’ jurisdiction clauses, limit one party to suing the other in a court of a particular country while the other party is free to sue the former party in a jurisdiction of its choice. Accordingly, this favours one party. While there is little judicial consideration of such clauses, it is likely that these would be enforceable under Australian law, although this is not the case in certain overseas jurisdictions (such as where the term is regarded as unfair or unconscionable).

    Disclosure obligations

    What are the general disclosure obligations for litigants in your jurisdiction? Are banking secrecy, blocking statute or similar regimes applied in your jurisdiction? How does this affect financial services litigation?

    Australia has wide-ranging ‘disclosure’ obligations for litigants (most commonly referred to as ‘discovery’).

    Unlike other jurisdictions, this process is limited to discovery of documents and does not extend to the taking of witness statements.

    There are only limited exceptions to the obligation to disclose relevant documents, most notably, documents prepared for the dominant purpose of seeking or being provided legal advice (legal professional privilege, which is a fundamental common law immunity). Another exception is without prejudice material - that is, material (which is often full and frank) evidencing a willingness or an attempt to settle the matter, which may include concessions not to be relied upon in court. However, without prejudice material may be shown to the court at the conclusion of the matter on the question of costs.

    Courts can, in certain circumstances, draw inferences where documents likely to exist are not produced without reasonable excuse or where it appears that documents or particular evidence that could have been adduced in support of a party’s position were not.

    This common process varies within Australian jurisdictions. Most relevantly, in the Federal Court, parties must apply for court orders for discovery and this must be in circumstances where it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. In state and territory jurisdictions, the rules generally allow for discovery of documents relevant to the issues in dispute. Particularly in larger cases, the parties will often seek discovery by categories of documents (as opposed to general discovery).

    Although there is no banking secrecy or blocking legislation in Australia, the courts have considered the operation of such laws from extraterritorial jurisdictions where necessary - typically in the context of a foreign applicant seeking to set aside a notice to produce certain documents or a subpoena to produce documents, if compliance would require the applicant to commit serious criminal offences in breach of local banking secrecy laws.
    Protecting confidentiality

    Must financial institutions disclose confidential client documents during court proceedings? What procedural devices can be used to protect such documents?

    As a general proposition, financial institutions will be required to disclose client information to the extent it is relevant to the issues in dispute. That being said, where third-party information is relevant to a dispute, courts will usually entertain specific confidentiality requirements in relation to that information. In some circumstances, parties can seek ‘preliminary discovery’ of documents that may give rise to a cause of action or are required to complete information necessary to bring a cause of action. Courts seek to balance an overriding principle of access to relevant information with the burden on the parties and any associated third-party rights.

    Procedural devices to protect confidential information include suppression or non-publication orders. Courts may also allow redaction of confidential and irrelevant information, such as bank account details of third-parties or those not in dispute. Circumstances in which a suppression order may be granted include, for example, where it is required to prevent prejudice to the proper administration of justice or national security, or to protect the safety of any person or to avoid causing undue distress or embarrassment in particular cases.
    Disclosure of personal data

    May private parties request disclosure of personal data held by financial services institutions?

    As noted in question 18, where proceedings are brought against a financial services institution, a party will ordinarily be entitled to discovery and inspection of all discoverable documents in the institution’s possession or control. Disclosure of personal data could also be sought by a private party issuing a subpoena to produce on the institution.

    An ‘open banking’ regime was recently introduced in Australia, which is in effect a data sharing regime to support customer choice and competition. This will see the introduction of a comprehensive right for consumers to access information about them held by certain entities and, where the customer has elected, share this information with third parties. Data will be shared in a usable, machine-readable form. While the implementation is being completed in stages, the ‘big four’ Australian banks have voluntarily commenced publishing certain data in accordance with the first phase of the regime. This data sharing will assist banks and other lenders to assess suitability.
    Data protection

    What data governance issues are of particular importance to financial disputes in your jurisdiction? What case management techniques have evolved to deal with data issues?

    There are complex regimes in Australia to deal with the extraction and use of data in court proceedings. Courts will entertain a range of different technological solutions for the extraction and compilation of potentially relevant data. Electronic discovery is now commonplace. There are also instances of courts permitting artificial intelligence solutions such as predictive coding to reduce the size of disclosure sets. Parties may agree (with or without court intervention) on regimes to lessen the burden of discovery, such as by excluding certain types of electronic data from discovery. The Federal Court has developed a template protocol that sets out the terms under which information may be electronically exchanged between parties, typically during the discovery process.

    Interaction with regulatory regime
    Authority powers

    What powers do regulatory authorities have to bring court proceedings in your jurisdiction? In particular, what remedies may they seek?

    Various regulators have broad powers to bring court proceedings against financial service institutions for matters such as contravention of financial services or credit laws or corporations laws.

    The available remedies range from preservative actions (to avoid or limit the damage), recovery action (to recover assets or obtain compensatory damages), and remedial and protective actions (to remedy contraventions and otherwise prevent further loss or damage). The remedies regulators may seek include:

    injunctions (both interlocutory, mandatory and preventative);
    imposition of civil penalties;
    imposition of criminal penalties and custodial sentences;
    damages (on behalf of the corporation, or registered scheme, or by those persons who suffered as a result of the contravention);
    imposition of compliance regimes; and
    other remedies such as orders to disclose information or publish advertisements.

    Regulatory authorities may bring court proceedings for a range of purposes, most notably:

    to act as a public deterrent to similar conduct by the entity or other entities;
    for the imposition of civil penalties (which cannot be imposed by simple agreement); and
    for any criminal sanction.

    The corporate regulator also has powers to intervene in proceedings already on foot.

    Court-based enforcement is commonly used by regulatory authorities in Australia. Following the Royal Commission, all major regulators (particularly the corporate regulator, ASIC) have indicated they will seek to commence court-based enforcement more frequently.

    Australian regulators have broad investigative and information-gathering powers and can require financial institutions to provide documents and information, attend examinations to answer questions and provide assistance to investigations.

    Generally, if ASIC has sufficient evidence to support a criminal offence, particularly in cases of serious conduct that is reckless, dishonest or intentional, it will refer the matter to the Commonwealth public prosecutor.

    ASIC can also take administrative protective action (ie, action that does not involve the courts) including disqualification from managing a corporation, revocation, suspension, variation of licence conditions, enforceable undertakings and public warning notices.

    Significant litigated regulatory matters in recent times include allegations of market manipulation in connection with financial benchmarks, anti-money laundering and alleged breaches of responsible lending provisions.
    Disclosure restrictions on communications

    Are communications between financial institutions and regulators and other regulatory materials subject to any disclosure restrictions or claims of privilege?

    In recognition of the commercially sensitive material they hold, the key financial services regulators - ASIC, the Australian Competition and Consumer Commission (ACCC) and the Australian Prudential Regulation Authority (APRA) - are subject to confidentiality obligations. Regulators are required to take all reasonable measures to protect from unauthorised use or disclosure the information given to it in confidence or in connection with the performance of its functions. ASIC and the ACCC will generally give the relevant parties notice before disclosing confidential material so as to give the owner of the material the opportunity to take any action to protect their interests.

    Regulators cannot compel the production of communications or documents subject to a valid claim of legal professional privilege. However, parties may voluntarily elect to provide privileged documents to ASIC on a limited and confidential basis under its standard form disclosure agreement. This ‘limited waiver’ regime was introduced to enable ASIC to obtain the relevant information needed to make regulatory and enforcement decisions. The standard agreement provides that the disclosure of information to ASIC is not a waiver of any privilege existing at the time of the disclosure. ASIC will generally treat the information as confidential, but the privilege holder retains responsibility for otherwise safeguarding any privilege claims he or she wishes to maintain (eg, asserting any privilege where ASIC is compelled by law to disclose information under a court order for discovery).

    It is important to note, however, that the agreement does not prevent third parties from asserting that privilege has been waived. There is some case law in Australia to support the proposition that a voluntary ‘limited waiver’ should not amount to a wider waiver of privilege, although the authorities have not directly considered the position of ASIC’s standard agreement. Until such time, and in the absence of legislative protection being enacted, there will remain a risk of waiver of privilege for parties voluntarily disclosing privileged communications to ASIC.

    Specific statutory secrecy provisions may also operate to prohibit disclosure of information shared between financial institutions and the prudential regulator, APRA. Using its statutory confidentiality powers as set out in the Australian Prudential Regulation Authority Act 1998 (Cth), other than in permitted circumstances, APRA does not allow disclosure of certain information (referred to as protected information). APRA uses these prohibitions so that inadvertent disclosure does not provoke a market overreaction or lead to an unwarranted loss of confidence on the part of beneficiaries in the institution the subject of the disclosure.
    Private claims

    May private parties bring court proceedings against financial institutions directly for breaches of regulations?

    Prosecution of corporate, securities and financial service laws is not exclusive to regulators. Private parties can bring proceedings against financial institutions directly for certain kinds of breaches of regulations. However, there must be specific remedial provisions in the statute giving such persons standing to seek relief. Some provisions are enforceable only by regulators. Often, regulatory investigations will, in fact, act as catalysts for private claims, especially class actions.

    In a claim by a private party against a financial institution, must the institution disclose complaints made against it by other private parties?

    The disclosure of complaints made by other parties of a similar nature would usually not be relevant but that question may fall to be determined on the particular facts and allegations at hand.

    Often, claimants will seek to subpoena a regulator to produce documents obtained by the regulator in its investigations, to the extent they are relevant to the extant action. Whether such orders are made by the court will depend on the relevance of the material and whether it is protected by public interest immunity, or other immunities such as those afforded by APRA to ‘protected information’.

    Where a financial institution has agreed with a regulator to conduct a business review or redress exercise, may private parties directly enforce the terms of that review or exercise?

    Generally, private parties (customers or otherwise) cannot enforce an agreement between a financial institution and a regulator. Enforceable undertakings are often agreed between financial institutions and ASIC in lieu of legal proceedings (although ASIC has been criticised for overreliance on this method of resolution), which are essentially administrative out-of-court settlements that are enforceable by ASIC in court if breached. While, private parties cannot directly enforce enforceable undertakings, as a practical matter, if they were to alert the regulator, the regulator is likely to enforce on their behalf.
    Changes to the landscape

    Have changes to the regulatory landscape following the financial crisis impacted financial services litigation?

    There have been significant regulatory landscape changes since the financial crisis, characterised by a significant increase in the suite of regulatory requirements. Notably in 2018, the federal government conducted a Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, which focused in part on the role of the regulators. Among the recommendations from that Commission was additional regulation and changes to the approach to enforcement that would include the conduct of more investigations and an increased level of court-based enforcement.

    Particular attention has also been given to the role of corporate culture, governance and remuneration and their links to corporate misconduct. This has drawn the attention of the prudential regulator, APRA, which has recently been requiring financial institutions to undertake self-assessments into governance, accountability and culture.
    Complaints procedure

    Is there an independent complaints procedure that customers can use to complain about financial services firms without bringing court claims?

    Australian Financial Services Licensees and Australian Credit Licensee (licensees) are both under a general licensing condition to have an internal dispute resolution procedure that meets certain criteria, and to be a member of the AFCA scheme (as an external procedure).
    Internal disputes resolution

    Internal dispute resolution procedures must comply with the standards and requirements made or approved by ASIC and cover disputes in relation to the credit activities engaged in by the licensee or its representatives. ASIC has published a regulatory guide that it is currently seeking to update (RG 165 - Licensing: Internal and external dispute resolution), which aims at ensuring consumer complaints are dealt with efficiently and quickly, and that the licensee is able to identify potential systemic issues. This guidance also sets out time frames in which disputes should be dealt with internally.
    AFCA - external disputes resolution

    AFCA is a non-governmental organisation that administers a free and independent dispute resolution scheme as an alternative to courts and tribunals. AFCA reviews complaints about credit, finance and loans, insurance, banking deposits and payments, investments and financial advice and superannuation. It has jurisdiction to award compensation for indirect financial loss (capped at A$5,000 per claim), compensation for non-financial loss (also capped at A$5,000), and compensation up to A$2 million but the subject credit facility must generally not exceed A$5 million.

    Once a dispute is lodged, the lender is notified and must cease all enforcement action relating to the dispute (which has been used as a delay tactic by many consumers, particularly where there is imminent enforcement action such as a court hearing). AFCA may require information to assess the dispute, usually by requesting documents or interviewing either party.

    AFCA aims to resolve complaints using informal methods and by reaching a negotiated settlement. It can make a preliminary assessment that will result in a recommendation of how the dispute should be resolved. If the parties do not accept this, AFCA can make a formal decision called a determination. If the applicant accepts the determination, it will be binding on both parties. If the applicant rejects it, neither party is bound, and the applicant customer is free to pursue a court-ordered outcome.

    AFCA can award financial damages (albeit not punitive, exemplary or aggravated damages). Other remedies include forgiveness of debt, release of security, waiver of fees or reinstatement or vitiation of a contract etc.

    The Code (referred to in question 1) also stipulates lender requirements as to dispute resolution (both internal and external) and supplements this with obligations, such as obligations relating to complaints handling.
    Recovery of assets

    Is there an extrajudicial process for private individuals to recover lost assets from insolvent financial services firms? What is the limit of compensation that can be awarded without bringing court claims?

    In the event that a bank or other authorised deposit-taking institution (such as credit unions and building societies) fails, the Australian government has a financial claims scheme, also known as the Australian Government Deposit Guarantee, to protect and support the stability of the Australian financial system. This also covers the situation where a general insurer fails (for claims up to A$5,000). The scheme must be activated by the government and is administered by APRA. The scheme acts to protect deposits up to A$250,000 for each customer.

    Updates & Trends
    Recent developments

    Are there any other current developments or emerging trends that should be noted?
    Challenges and trends29 What are the principal challenges currently facing the financial services litigation landscape in 2019? What trends are apparent in the nature and extent of financial services litigation? Are there any other noteworthy features that are specific to financial services litigation in your jurisdiction?

    The financial services landscape in Australia in 2019 is a challenging one for financial services institutions. There has been a significant increase in the number and nature of consumer protection regulations affecting banks. Combined with heightened regulator interest and activity, there is a strong correlation between financial services investigations and civil litigation, including class actions. In February 2019, the government substantially increased penalties for corporate misconduct and introduced a penalty for contraventions of the obligations to ensure that financial services and credit activities are provided efficiently, honestly and fairly. The imposition of those penalties, in conjunction with other statutory developments and regulatory attitudes, means that enforcement litigation and later corresponding claims will be a much more significant feature of the landscape in the years to come.

    An upcoming area in modern litigation is the use of litigation funding. Due to strong demand, attractive returns and limited regulation, third-party litigation funding has evolved in Australia over the past decade and is now commonplace, particularly in class actions. Such funders are not subject to licensing or capital adequacy requirements. However, there are particular court rules applying to litigation funding - for example, litigation funding agreements must be disclosed early on in the proceedings.
    Gilbert + Tobin - Andrew Floro, Harish Ekambareshwar, Kasia Dziadosz-Findlay and Richard Harris

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    4 weeks ago

    At the 6 minute mark, Lindsey Graham asks if VP Biden knew about the FISA abuse ... by the lawyers at National Security Prosecutor Decker's level who the Victorian Legal Services Board were reported as 'spying on' during the NSD investigations into the Commonwealth Bank of Australia and 1MDB.

    What sort of bar association

    tries to find out about Vice President Biden's prosecutors during Bruce Ohr's Organized Crime Task Force investigations into the evidence racket run by the lawyer for Mastercard and the Mexican Banking Assoc' lawyer Ravelo and her transnational narcotics running colleagues who operated bogus "litigation service companies" that altered Reserve Bank and Amex and Visa evidence

    gets complained about for hindering investigations into possible violation of witness tampering law 18 USC 1513 and ends up with the bank's CEO Matthew Comyn admitting at the Royal Commission to the bank, under FOS' director Turner, hampering investigations by counterterrorism and moneylaundering investigators

    has a Chairwoman who works/worked in health and bank regulator APRA and mining giant BHP - and APRA was aware that the Commonwealth Bank was under years of red rated audit reports before AUSTRAC found Al Quada used the bank

    has directors from the audit firm KPMG that was working for the bank on its red rated moneylaundering/terror problem

    has a fellow in a naval uniform, barristers wig, and photoed with Assange's QC Sir Geoffrey Robertson

    lawyers that former policeman-turned-radio host-FBI Complainant Michael Smith reports was 'saving' one of Hillary Clinton's biggest donors and co-campaigner Julia Gillard

    was headed by a colleague of Cardinal Pell's who claimed to the Victorian Opposition Minister for Counterterrorism Robert Clarkthat he and his Mr Bowles weren't aware of the US investigations that were in their own files before and after the arrests of Ravelo and the CBA's IT Executives

    was threatened by a Mr Jones with defamation if it use his name as part of a cover up that it defied complaints to stop procuring under pretences

    is named in SEC Reports as blowing whistles on its senior levels' plans to get information about politicians, law enforcement investigations, reports and complaints

    has the same official Shirley Joseph named to the FBI by relatives of George W Bush's friends for backing the Mokbel property partner William Jordanou regarding a mortgage fraud racket by the international poker player Bill Jordanou with loans from the CBA?

    and has complaints that it threatened people and lent on affidavit material about the LSBC's stories like the story that nurses or a landlord called Glenn Jones broke into a Gippsland farmhouse or its lawyers office in Lakes Entrance to cart away child protection orders against travellers to Asian orphanges and other evidence for the Organized Crime Task Force?

    1 month ago

    At the 6 minute mark, Lindsey Graham asks if VP Biden knew about the FISA abuse ... by the lawyers at National Security Prosecutor Decker's level who the Victorian Legal Services Board were reported as 'spying on' during the NSD investigations into the Commonwealth Bank of Australia and 1MDB.

    What sort of bar association

    tries to find out about Vice President Biden's prosecutors during Bruce Ohr's Organized Crime Task Force investigations into the evidence racket run by the lawyer for Mastercard and the Mexican Banking Assoc' lawyer Ravelo and her transnational narcotics running colleagues who operated bogus "litigation service companies" that altered Reserve Bank and Amex and Visa evidence

    gets complained about for hindering investigations into possible violation of witness tampering law 18 USC 1513 and ends up with the bank's CEO Matthew Comyn admitting at the Royal Commission to the bank, under FOS' director Turner, hampering investigations by counterterrorism and moneylaundering investigators

    has a Chairwoman who works/worked in health and bank regulator APRA and mining giant BHP - and APRA was aware that the Commonwealth Bank was under years of red rated audit reports before AUSTRAC found Al Quada used the bank

    has directors from the audit firm KPMG that was working for the bank on its red rated moneylaundering/terror problem

    has a fellow in a naval uniform, barristers wig, and photoed with Assange's QC Sir Geoffrey Robertson

    lawyers that former policeman-turned-radio host-FBI Complainant Michael Smith reports was 'saving' one of Hillary Clinton's biggest donors and co-campaigner Julia Gillard

    was headed by a colleague of Cardinal Pell's who claimed to the Victorian Opposition Minister for Counterterrorism Robert Clarkthat he and his Mr Bowles weren't aware of the US investigations that were in their own files before and after the arrests of Ravelo and the CBA's IT Executives

    was threatened by a Mr Jones with defamation if it use his name as part of a cover up that it defied complaints to stop procuring under pretences

    is named in SEC Reports as blowing whistles on its senior levels' plans to get information about politicians, law enforcement investigations, reports and complaints

    has the same official Shirley Joseph named to the FBI by relatives of George W Bush's friends for backing the Mokbel property partner William Jordanou regarding a mortgage fraud racket by the international poker player Bill Jordanou with loans from the CBA?

    and has complaints that it threatened people and lent on affidavit material about the LSBC's stories like the story that nurses or a landlord called Glenn Jones broke into a Gippsland farmhouse or its lawyers office in Lakes Entrance to cart away child protection orders against travellers to Asian orphanges and other evidence for the Organized Crime Task Force?

    1 month ago
  • Mokbel's ex-girlfriend, her daughter in St Kilda hostel building feud
    By Cameron Houston and Chris Vedelago
    November 8, 2019 — 1.00am

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    A Melbourne builder has launched legal action against Brittany Leigh McGuire, daughter of Melbourne underworld associate Danielle McGuire, over claims she refused to pay more than $600,000 for the construction of a backpacker hostel in St Kilda.

    Brittany McGuire, 23, is the partner of accused murderer Abdullah El Nasher and the director and owner of Punt Road Hostel Pty Ltd, which is also listed as a defendant in documents lodged in the County Court on November 4.
    Brittany McGuire, daughter of Danielle McGuire, with Abdullah El Nasher

    Brittany McGuire, daughter of Danielle McGuire, with Abdullah El Nasher

    However, her mother, who famously travelled to Greece with underworld figure Tony Mokbel as he tried to flee, is the operator of the budget accommodation business near St Kilda junction, and runs another hostel in a former Collingwood pub.

    Building company RPA Construction claims in a County Court writ that it agreed to a "cost-plus contract" in June 2018, after meeting with Danielle McGuire and an architect in 2017.
    Danielle McGuire.

    Danielle McGuire.Credit:Angela Wylie

    The 47-year-old had introduced herself as Danielle Legh at the meeting, and used the same name in email correspondence regarding construction of the 113-bed hostel, which has since opened.

    Court documents allege that Brittany McGuire's company was issued with three invoices over a three-month period in 2018 that totalled $616,576, but the builder received just one payment of $137.09.

    But her mother, using the name Danielle Legh in correspondence on October 4, accuses the builder of breaching his contractual obligations and denying her access to the site for inspection.

    In the writ, the builder claims he is owed $692,078.05, which includes interest of $79,308.88.
    The planning application for a St Kilda youth hostel run by underworld associate Danielle McGuire.

    The planning application for a St Kilda youth hostel run by underworld associate Danielle McGuire.

    The hostel project was originally rejected by Port Phillip Council, which cited noise, rowdy behaviour and property damage by backpackers "returning from nearby licensed premises" in its objection to the plan.

    But the Victorian Civil and Administrative Tribunal made a contentious decision to overrule the council.

    It is unknown if VCAT was aware of Danielle McGuire's involvement in the budget accommodation project, which marks a significant shift from her previous career in a beauty therapy business called Hollywood Hair Extensions Pty Ltd.

    The company was registered in 2005, not long after her release from an 18-month prison sentence for trafficking $800,000 in ecstasy.

    When police raided her Collingwood apartment they found contact details for her then-lover Mark Moran, who was shot dead by Carl Williams in 2000.

    In 2006, she joined her then-partner Tony Mokbel when he was hiding out in Bonnie Doon after jumping bail while awaiting trial on drug-trafficking charges.

    She followed him to Greece, but their life on the run came to an abrupt end in 2007 when detectives from the Purana taskforce arrested him in Athens.

    After Mokbel was sentenced to a minimum 22-year prison term, Danielle McGuire consorted with Bandido enforcer Toby Mitchell. The mother-of-two maintained a bedside vigil when Mitchell was shot six times in 2011.

    In March, Brittany McGuire attended a boxing event where 30-year-old Ben Togiai was killed in a shooting and kickboxer Omar Bchinnati and Joseph Abouchaya were injured.

    Her partner, Abdullah El Nasher, is charged with murder, while Brittany McGuire has been ordered to face questions about the fatal shooting in the Magistrates Court next year.

    Mr El Nasher is due to face a five-day hearing in March to determine if he will stand trial.

    1 month ago
  • Bruce Ohr's Organized Crime Task Force arrested the racket

    2 months ago
  • Always get a 2nd opinion from the Organized Crime Task Force on the caveat rackets, the lawyers who lodge the caveats, the lawyers who use color of law to keep the caveat on title for massive fees, and the inaction on the part of the legal regulators to pinge the caveat lodging lawyers.

    Judge Wilmott in this case says its very real and jailable blackmail.

    Standover bikie used fake tongue in debt threat
    Rebekah Cavanagh, Herald Sun
    December 6, 2019 8:00am
    Subscriber only

    A bikie enforcer used a bag of off-cut meats as a prop human tongue to threaten a man in a bid to settle a debt dispute ­between Melbourne restaurateurs.

    Christopher “Spider” Soutar, 37, from Point Cook, flashed a “1%” diamond tattoo on his chest to show he was from the Black Uhlans outlaw motorcycle gang during the standover attempt on Bobo Diner part-owner Liam McDonnell.

    “Show him what we do to c---s who mess us around,” Soutar told an associate, who produced a ziplock bag that ­appeared to contain flesh and blood.

    “That’s some c---’s tongue who tried to get smart with us.”

    The standover men had arranged to meet Mr McDonnell in Werribee, where he handed over $2400 of $40,000 being demanded, on October 1 last year.
    MORE IN news

    Two days later they met again and Mr McDonnell handed over $15,000.

    Soutar later that month left a severed pig head at the home of Mr McDonnell’s business partner, Rocco Veneziano. Wedged inside its mouth were photos of Mr Veneziano with his family.

    “There is a head in your front yard. Look inside its mouth,” Soutar texted Mr Veneziano.

    Earlier, Soutar had threatened to burn down Mr Veneziano’s house, leaving a note in his letterbox saying “Nice house”. He also sent a text message to Mr Veneziano’s wife, saying: “You never know what happens when you pick up your kids from school.”


    Opinions you can't ignore. Watch Rita Panahi 9am Sundays, Sky News. For more

    The County Court heard Mr McDonnell and Mr Veneziano had been in a financial dispute with their third ­business partner, Vaughan Thompson.

    The trio had operated two Bobo’s Diner restaurants in Melbourne and Geelong from 2013, but when the businesses started having financial difficulty in December 2017, debt collectors came knocking.

    When Mr Thompson tried to sell his house in September last year, he couldn’t because Mr Veneziano had put a caveat on the property to secure debts owed to him from an earlier loan agreement.

    The court heard Mr Veneziano called Mr Thompson asking about “Spider”.

    “What else did you expect me to do? You put a caveat on my property,” Mr Thompson allegedly said.





    County Court judge Wendy Wilmoth described Soutar’s offending as “grave”.

    She noted he had no criminal history and had since ­severed ties with the outlaw motorcycle club, which he had joined in 2015 after the breakdown of his marriage and his dog was baited.

    Giving him a discount for his plea of guilty to two counts of blackmail, Judge Wilmoth jailed him for two years and nine months.

    He will be eligible for parole after 18 months.

    This email address is being protected from spambots. You need JavaScript enabled to view it.

    2 months ago
  • Westpac's pedo and terror law scandal could breach US Sanctions too. Do you think McGarvie's legal services board led by APRA's executives knew? Yes, say victims: Claire Marshall's file notes at the SEC say she knew about US Treasury's Elliot Ness anti Al Capone Unit , OFAC.

    2 months ago
  • Charles Ponzi created a new topic ' Shirley Joseph's Mokbel Jordanou Files' in the forum.
    GW Bush's friends relatives in Victoria Australia weren't happy with the Legal Services Board's Shirley Joseph handling of the William Jordanou case or the Commonwealth Bank's delays with compensation. Is it true they got compensated after the FBI and Nevada Gaming Commission were asked to look into it?

    Bikies, petrol bombs and the disputed $73 million land deal
    By Cameron Houston and Chris Vedelago
    November 3, 2019 — 4.45pm

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    The past two years have been eventful for property developer Nick Bochrinis after he purchased a prime development site in Melbourne's west for $73 million in November 2017.

    The Alphington home of Mr Bochrinis was fire-bombed last year, which destroyed his Mercedes C63 AMG and was investigated by Victoria Police's anti-bikie Echo taskforce.
    Bill Jordanou (left), Nick Bochrinis and the Mercedes that was torched at Mr Bochrinis' Alphington home.

    Bill Jordanou (left), Nick Bochrinis and the Mercedes that was torched at Mr Bochrinis' Alphington home.

    And the 42-year-old developer and money-lender was recently refused bail after being charged by police with extortion, aggravated burglary and assault charges.

    Now on remand, Mr Bochrinis must mount a legal battle from behind bars for control of the 60-hectare site in Mount Cottrell, while also defending serious criminal charges.

    The high-stakes dispute also involves a notorious silent partner - former professional poker player and convicted conman Bill Jordanou, who was sentenced to a 12-year prison sentence last year over his role in a $76 million fraud.

    Mr Bochrinis bought the land with a downpayment of just $100,000 from long-term owner John Portelli. His company Champion Investment Group placed two caveats on the title in 2017 after agreeing to settle the multimillion-dollar deal in several instalments over almost five years.

    The fate of the prime land, near Tarneit, has remained in limbo for almost two years but its value has soared since new A-League franchise Western United announced plans to build its stadium nearby.

    Several sources familiar with the deal said Mr Bochrinis had worked closely with Jordanou during negotiations on the property.

    The pair had agreed the property would be onsold or "flipped", with Jordanou's share of the proceeds to be paid to a relative.

    At the time of the deal, Jordanou was on bail but would eventually plead guilty in June 2018 to using fraudulent loan documents in the name of clients to obtain funding for property developments.

    However, their plan fell over when Mr Bochrinis failed to make the first payment of $7.2 million by June 2019 and was served with a notice of rescission, according to a sworn affidavit by Mr Portelli filed in the Supreme Court of Victoria.

    By then, Mr Portelli had already done a "side deal" to sell the land to rival developers Mark Casey and Mario Salvo, who also agreed to pay $73 million on the same terms.

    Mr Casey and Mr Salvo formed a company called 1228 Leakes Road Land Pty Limited and paid a $7.3 million deposit to a trust account on May 17, which can be accessed by Mr Portelli only once the caveats are removed by Mr Bochrinis.

    But Mr Bochrinis claims in an affidavit that his company had not been provided with the contract and vendor's statement on May 17. He said he would have made "immediate arrangements to organise payment of the deposit and to execute those documents".
    Former professional poker player Bill Jordanou leaves court in 2014.

    Former professional poker player Bill Jordanou leaves court in 2014.Credit:Joe Armao

    He claims in an affidavit that he could have stumped up the $7.2 million within 14 days after entering into an agreement with another company called Pramana Capital Pty Ltd owned by lawyer James Podaridis.

    Mr Bochrinis' company refuses to remove the two caveats on the property, leaving the future of the site at an impasse.

    The dispute has been further complicated by Mr Bochrinis' arrest on serious criminal charges.

    Court records show Mr Bochrinis and a former member of the Mongols outlaw motorcycle gang were both charged with aggravated burglary, extortion, and intentionally causing serious injury. Mr Bochrinis is also charged with committing an offence while already on bail.

    The fire-bombing of his Fulham Road property last year is unrelated to the legal dispute over the Mount Cottrell land, but has been linked to members of the Comanchero bikie gang.

    His Mercedes, worth more than $150,000, was destroyed by a petrol bomb, while three bricks were also hurled through the front window of his property on February 11.

    Mr Bochrinis has also run afoul of Horty Mokbel – brother of jailed drug kingpin Tony Mokbel – after a luxury car he provided a finance guarantee over for Mokbel was repossessed, embarrassing the noted underworld figure.

    Russell Kennedy lawyer Leonard Warren declined to answer questions on behalf of Mr Bochrinis.

    "We have acted for Champion Investment Group Pty Ltd in Supreme Court proceedings. We have never acted for Mr Bochrinis," Mr Warren said.

    Mr Portelli's lawyer Peter Darrer declined to comment while the matter was before court.

    Mr Salvo also declined to comment.

    Correction: an earlier version of this story incorrectly used an image of land at 1135 Leakes Road, Mount Cottrell.

    2 months ago
  • Hetty Johnson: AFP reports that 50% of children in child exploitation material they find are in fact Australian. This does not just happen to little kids in other countries. It is happening across Australia. Please be vigilant with your children to online predators.…/…/2c2f20f0d94e4a9dc884b0ca11fd1869

    2 months ago
  • Charles Ponzi created a new topic ' Matt Norman supporter says:' in the forum.
    "One System of Laws for Us, Same Set of Laws for the Lawyers." (site managed by This email address is being protected from spambots. You need JavaScript enabled to view it.)
    Skip to content

    The People are Speaking
    Victim Impact Register

    The People are Speaking

    … ☞☞☞ … Lawyerocracy On Trial: PM Gillard, AG Roxon, MHR Turnbull, 9 MPs, 16 Judges, 10 Govt Agency Heads &more Summoned for @21May12 Hearings #auspol … ☞☞☞ …

    I am encouraged and enheartened by the positive messages of encouragement and support I have received from victims and survivors of Australia’s genocidal family courts, our ruling lawyerocracy and debtocracy, over the past 24 hours.

    Over 100 members of the public and media turned up at short notice to the start of the hearings on Monday 21 May 2012. Their responses, and the responses from several public meetings held so far (with more than 100 people at every meeting) and via my radio interviews to date have been overwhelming. There is every reason to expect many more than a 100 members of the public (and many more in the press gallery) when the hearings resume at 10 am on 6 July 2012.

    More importantly, a better informed public is now gathering momentum to lobby State and Federal Government to “turn back the clock” to 2004, to reintroduce ethical and legal standards of conduct for the legal profession, to clean up the mess that a frightfully conniving pair of Victorian publicly-funded, lawyer-dominated government agencies created when they contrived to have the High Court of Australia affirm the absence of legal standards of care for (7,000) Australian barristers and to abolish legal standards of care for (77,000) Australian solicitors – making Australian the only country since 2000 to retain such “special lawyers” for barristers, and the only country ever, and only since 2004, to create the same “special laws” for solicitors.

    I am endeavouring to respond personally to everyone who writes to me to offer good wishes and support.

    And, while I cannot hope to reproduce every goodwill message here on this blog, I shall from time to time over the next fortnight be publishing some of the more encouraging and remarkable survival stories that people are kind enough to share with me.

    Every one who endures, every one who survives the horrific genocidal practices of our unconstitional, killer family law courts, and every one who survives the aboriginating greed and abuse of our debtocracy laws, every one of you is a hero in my books, every one who survives being arrested for “tresspassing” in a “public space” [the modern reincarnation of the 1200s and 1800s enclosure laws ?], every one of you is a hero, a Gandhi and a Martin Luther King, a List full of Schindlers, no matter how bad the scars you carry from the maulings unjustly and unlawfully inflicted on you.

    The following is just one message I have received over the past 24 hours. With my next blog post, I will post a copy of my thank you letter in reply to “Strawman”, along with a few of the other amazing messages of encouragement:

    James Johnson, Independent Federal Candidate for Lalor

    STRAWMAN (6:14 PM (17 hours ago)
    James Johnson – a Lawyer/Barrister is putting Lawyerrocracy on trial… .. All Melbournians – put it in your diary 21st May at 10am @ 55 King St Melbourne… Not To Be Missed

    Hi James,

    I am a friend of Matt Norman’s & we too are fighting to hang onto our home through the illegal practices of the banks. There are so many of us now in this situation.

    We had our 5 hour appeal in December last year in Supreme Court Melbourne – when not one shred of our evidence was looked at, the banks did not provide one single document that was subpoenaed and we were ambushed and railroaded by corrupt lawyers & judges beyond anything most people can even imagine.

    We are now in the process of the banks trying to evict us….. it is not fun at all.

    Do you take on any new cases?

    If so, I would love to talk to you as I have a few ideas on how to save our home and would love to set a precedent in this country as there has not been one single win for a defendant fighting “foreclosure” in Australia, yet other countries have stopped the process very successfully.

    Our problem has always been trying to find an ethical lawyer to help us who would not sell us out – and up until now – I thought that they did not exist…..

    We started a class action last year – only to have the lawyer run off with all the $$ & only ever represent one person (of the 100 in the action) and was obviously told by the powers-to-be to stop the action & disappear – which he did. Most of us are exhausted, almost bankrupt & scathing of the legal profession and judicial system. It would be so nice to have our faith restored in finding a lawyer who gives a damn & prepared to go the hard yards to expose the truth.

    2 months ago
  • Charles Ponzi created a new topic ' Natalie Mouat Ombudsman and Pedophiles' in the forum.
    Complainants to US law enforcement aren't happy Ms Natalie Mouat - your website says you're investigating WorkSafe's IMEs and "Assoct Prof Dr Peter Doherty" is one of them (and is not to be confused with the Nobel Prize winning Professor Dr Doherty.).

    From: "Ombudvic (VO)" <This email address is being protected from spambots. You need JavaScript enabled to view it.>
    Subject: Your complaint about Professor Peter Doherty - File No: C/19/21224
    Date: November 21, 2019 at 8:14:24 PM HST
    To: "Email:" <This email address is being protected from spambots. You need JavaScript enabled to view it.>

    22 November 2019

    File No: C/19/21224

    Dr Eugene Warner
    Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

    Dear Dr. Eugene Warner

    Your complaint about Professor Peter Doherty

    Thank you for your online complaint dated about Worksafe accredited Independent Medical Examiner Professor Doherty.

    While this office can consider complaints about most Victorian government authorities, we cannot deal with complaints about private individuals.

    You may wish to contact the The Australian Health Practitioner Regulation Agency (AHPRA) at:

    Telephone: +61 3 9275 9009

    For further information about the Ombudsman, visit our website at

    I hope this information helps you. If you have any questions, contact us on +61 3 9613 6222 or via reply email.

    Yours sincerely

    Natalie Mouat

    Investigation Officer


    Level 2, 570 Bourke Street
    Phone: +61 3 9613 6222 | Regional Callers (excl. mob.): 1800 806 314
    Fax: +61 3 9602 4761 | DX: 210174 Melbourne

    2 months ago
  • Charles Ponzi created a new topic ' REMIC Case Beverley v Bank New York Mellon' in the forum.

    UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITPATRICIA BEVERLY, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. THE BANK OF NEW YORK MELLON, FKA The Bank of New York, a New York corporation, as Trustee for the Certificate-holders of the The CWABS, Inc. Asset-Backed Certificates, Series 2005-16; DITECH FINANCIAL LLC, FKA Green Tree Servicing; DOES, 1-10, Defendants-Appellees.No.17-55557D.C. No. 8:16-cv-01928-DOC-KESMEMORANDUM*Appeal from the United States District Courtfor the Central District of CaliforniaDavid O. Carter, District Judge, PresidingSubmitted October 10, 2018**Pasadena, CaliforniaBefore: HURWITZ and OWENS, Circuit Judges, and PRESNELL,***District Judge.*This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.**The panel unanimously concludes this case is suitable for decision without oral argument. SeeFed. R. App. P. 34(a)(2).***The Honorable Gregory A. Presnell, United States District Judge for FILEDOCT 17 2018MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS
    2Patricia Beverly bought a house in 2005, executing a promissory note (the “Note”) andadeed of trust (the “Deed of Trust”) secured by the property. Her complaintalleges thatin 2011the Note and Deed of Trust were purportedly transferredto Defendant Bank of New York Mellon (“BONY”) as trustee for a Real Estate Mortgage Investment Conduit (“REMIC”) trust.In 2014, she further alleges, BONYpurportedto substitute MTC Financial, Inc.,d/b/a Trustee Corps (“Trustee Corps”),for itself as trustee under the Deed of Trust. After Beverlydefaulted,BONY instructed Trustee Corpsto initiate foreclosure proceedings, whichresulted in the November 2015 sale of her house(to BONY) at public auction.A REMIC trust is defined in the Internal Revenue Code asan entity“substantially all of the assets of which consist of qualified mortgages and permitted investments.” 26 U.S.C. §860D(a)(4). The Code defines “qualified mortgage” as any obligation principally secured by an interest in real property and which is transferred to or purchased by the REMIC trust within certain specified time frames. 26 U.S.C. § 860G(a)(3). In 2016, Beverly filed a putativeclass action, arguing that the 2011 transfer failed because it occurred years too late for the Deed of Trust to meet the requirements to be a“qualified mortgage,” and therefore its transfer into the the Middle District of Florida, sitting by designation.
    3REMIC trust was precluded both by the terms of that trust’s Pooling and Servicing Agreement (“PSA”) and by the Internal Revenue Code. Because the transfer failed, her argument continues, BONY never hadauthority to initiate the foreclosure proceedings.In the alternative, she argues that the foreclosure was improper because of various problems with foreclosure-related documents, such as notary signatures and notices of default that (wrongly, in her view) showed BONY as the beneficiary of the Deed of Trust. She asserted one claim for wrongful foreclosure and anotherforviolation of California’s Homeowner Bill of Rights, Cal.Civ.Code §§2920-2924(the “HBOR”).1BONY and its co-defendant, Ditech Financial LLC, f/k/a Green Tree Servicing (“Ditech”),filed a Rule 12(b)(6) motion, arguing that Beverly’s claims were barred by res judicatabased on an earlier unlawful detainer actionand that she lacked standing to challenge the 2011 transfer to BONY. The district court rejected theres judicata argumentbutfoundthat Beverly lacked standingand therefore dismissedher claims with prejudice. Beverly timely appealed.We have jurisdiction under 28 U.S.C. § 1291, and we review a dismissal pursuant to Fed.R.Civ.P. 12(b)(6) de novo. We affirm.1Beverly also asserted claims under the Rosenthal Fair Debt Collection Practices Act, Cal.Civ.Code §§1788-1788.32, and California’s unfair competition statute,Cal. Bus. & Prof. Code §§17200-17210,but she does not challenge the dismissal of these claims on appeal.
    4After the foreclosure but before the filing of this action, BONY filed an unlawful detainer action against Beverly. She stipulated to an entry of judgment in favor of BONY on October 26, 2016. The districtcourtfound thatres judicatadid not apply becausethe issues resolved in the unlawful detainer action did not encompass Beverly’s failed-transfer theory.SeeVella v. Hudgins, 572 P.2d 28, 30(Cal. 1977) (noting that unlawful detainer action “is summary in character,” that “ordinarily, only claims bearing directly upon the right of immediate possession are cognizable,” and that,as a result, “judgment in unlawful detainer usually has very limited res judicataeffect”). As an additional ground for affirmance on appeal, the Defendants argue that res judicatashould have applied. However,they have made no showing that the failed-transfer issue wasactually addressedin the unlawful detainer action. See Vella, 572 P.2d at 31(finding exception to general rule of limited res judicata effect where essential issues of later action were “fully and fairly disposed of” in the unlawful detainer action). We find no errorinthe district court’s resolution of the res judicata issue.The district court did not err in finding that Beverly lacked standing to pursue her wrongful foreclosure claim. In Yvanova v. New Century Mortgage Corp., 365 P.3d 845, 859(Cal. 2016),a wrongful foreclosure case,the California Supreme Court held that where a home loan borrower is not party to a transaction (such as the transfer of a deed of trust), she has standing to challenge itonly where
    5the transaction at issuewas void, rather than merelyvoidable. Relying on Yvanova, the district courtfound that Beverly lacked standing because her allegation that the transfer occurred too late to satisfy both the requirements of the PSAandthe Internal Revenue Code’s definition of a “qualified mortgage” would resultat mostin a transaction that was voidable, rather than void.See, e.g., Rajamin v. Deutsche Bank Nat’lTrust Co., 757 F.3d 79, 88-89(2d Cir. 2014) (holding that under New York law only the intended beneficiaries of a private trust may enforce its terms and that unauthorized actsby trusteesare generally subject to ratification by its beneficiaries, making them voidable rather than void).2On appeal, Beverly has not citedany case law suggesting that the district court misconstrued NewYork law. Neither has Beverly, as the district court pointed out, cited any case law showingthat, as a matter of law, only qualified mortgages may be transferred into a REMIC trust (thereby makingsuch an attempted transfervoid rather than voidable).3See alsoMendoza v. JPMorgan Chase Bank, N.A., 212 Cal. Rptr. 3d 1, 12-14(Cal. Ct. App. 2016) (holding that late transfer of loan to REMIC trust, which might jeopardize trust’s favorable tax treatment, was voidable rather than void).2ThePSA for the REMIC trust here was governed by New York law. 3As noted,the statutory definition of a REMIC trust only requires that it “substantially” consistof qualified mortgages and permitted investments. 26U.S.C. §860D(a)(4).
    6The district courtalso found that Beverly lacked standing to challenge the foreclosure based on the alleged forgery of the notary signature on the 2014 document substituting Trustee Corps as trustee on the Deed of Trust, as that also would result, at most, in a voidable transaction. Beverly offers nothing to challenge this conclusion on appeal.4The plaintiff in Yvanova did not assert any claims under the HBOR. Nonetheless, after finding that Beverly lacked standing under Yvanovato assert a wrongful foreclosure claim, the district court dismissed her HBOR claim as well.The HBOR does not itself provide a private right of action for homeowners to challenge wrongful foreclosures or failed assignments of their deeds of trust. However, §2924.12(b) of the HBOR provides that, after a trustee’s deed upon sale has been recorded, a mortgage servicer or trustee (among others) shall be liable to a borrower for actual economic damages resulting from a violation of enumeratedprovisions of the HBOR. Among those provisionsare§2924.17(a), which requires thatforeclosure-relateddocuments such as notices of sale “shall be accurate and complete and supported by competent and reliable evidence,” and §2924.17(b), which obligates mortgage servicers such as Ditech toreview 4Beverly alleged a third basis for the failure of the 2011 transfer –that the previous beneficiary lackedthe authority to transfer beneficial interest in the Note and the Deed of Trust to BONY. This argument wasrejected by the district court, andBeverly does not challenge that decision on appeal.
    7“competent and reliable evidence to substantiate ... the right to foreclose.” Beverly’s complaintalleged that the notices of default and notices of sale recorded in connection with her foreclosure were not “accurate, complete, or supported by competent and reliable evidence” because they identified BONY as the beneficiary of the Deed of Trust. Beverly based this allegation on her contentionthat,because the Deed of Trust was not a “qualified mortgage,” it could not have been transferred into theREMICtrust, meaning that BONY could not have gained a beneficial interest in it. Based on this same reasoning, Beverly alleged that Ditech failed to review competent and reliable evidence to substantiate BONY’s right to initiate a foreclosure. The district court did not specify the basis for its dismissal of Beverly’s HBOR claim. But as the preceding discussion makes clear, the gist of Beverly’s HBOR claimis that the Deed of Trust and Note were not transferredinto the REMIC trust. She cannot raise theseallegedproblems with the foreclosure procedure –or, more precisely, she cannot establish that they caused her to suffer economic damages –without first challenging the 2011 transfer of the Deed of Trust and Note. Based on the reasoning of Yvanova, her lack of standing to attack the transfer in connection with a wrongful foreclosure claim is also fatal to her ability to attack that transfer in connection with an HBOR claim. As such, the district court did not err in dismissing theHBOR claim.

    2 months ago


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