Securities Industry Commentator by Bill Singer Esq

April 25, 2019

( Blog)
What is different about today's cranks is how technology -- especially social media -- lets them find each other so easily. It wasn't all that long ago that Woody Allen could turn the idea of a village idiots' convention into a sight gag.  But today, Lenny Pozner, an IT consultant whose son, 6-year-old Noah, was killed at Sandy Hook, has to battle a global network of village idiots, who claim he never even had a son.
In an Indictment filed in the United States District court for the District of Oregon, Onwuemerie Ogor Gift and Kelvin Usifoh were charged with one count each of conspiracy to commit wire fraud and money laundering and 11 counts of wire fraud. The DOJ Release asserts in part that"

[G]ift and Usifoh purchased the URL and published various webpages promising investors 20-50 percent returns on investments of bitcoin with zero risk and instant withdrawals. They actively encouraged victims to transfer bitcoin to private virtual currency wallets and made numerous false claims including that their bitcoins would be invested using "unique trading methods" and they would maintain a "constant high interest rate." They created additional websites perpetuating the same scheme including and

Beginning in December 2017 and continuing until at June 2018, Gift and Usifoh are alleged to have knowingly conspired to defraud three victims, one residing in Oregon and two in California. A photo of a fourth victim was used to create a false persona used in furtherance of the scheme. After receiving bitcoin transfers from their victims, Gift and Usifoh would transfer the bitcoin to other accounts and eventually exchange it for Nigerian Naira. The indictment alleges that in just over six months, the defendants stole 10.88 bitcoins worth approximately $59,000 from the three victims. In total, the government alleges Gift and Usifoh received more than 50 bitcoins as part of the scheme.

Passaic County, New Jersey, Man Admits Role in Business Email Scheme (DOJ Release)
Lawrence Espaillat, Amanda Suazo and Corry Pringley pled guilty in the United States District Court for the District of New Jersey to Informations charging each with one count of conspiracy to commit wire fraud; see the Espaillat Information As set forth in part in the DOJ Release:

From March 2017 to June 2018, Espaillat, conspirators Corry Pringley and Amanda Suazo, and others participated in the scheme to steal more than $1 million dollars from individual and corporate victims. The scheme involved recruiting "mules" - including Espaillat, before he rose to the level of recruiter - Suazo and Pringley, to provide their personal identifying information. This information was used to incorporate sham businesses with the N.J. Department of the Treasury under the mules' names. The mules eventually opened bank accounts in the names of the sham corporations.

A related cyberattack aspect of the scheme involved creating email addresses mimicking - but differing slightly from - legitimate email addresses of supervisory employees at various companies, vendors that did business with those victim companies, mortgage lenders that dealt with individuals in connection with real estate purchases, and brokerage firms and accountants who provided financial services. The conspirators used these deceptive email addresses to send emails that appeared to be requests for payment of legitimate invoices or debts owed by the victims. The victims were deceived into transferring funds by wire into the bogus bank accounts opened by the money mules and controlled by the conspirators. After the victims complied with the fraudulent wiring instructions, Espaillat, Suazo and Pringley, under the direction of other conspirators, quickly debited thousands of dollars from the accounts through in-person and ATM withdrawals and debit card purchases. They also transferred the funds to foreign bank accounts they controlled. Espaillat, Suazo and Pringley kept a fraction of the proceeds as payment.

For example, over a three-day period in April 2018, a corporate victim in Texas deposited $3.8 million dollars in a bank account opened by Pringley and controlled by Espaillat, Pringley and Suazo, who withdrew or transferred more than $1 million from the account.
Robert Pena, the President and founder of the defunct Mortgage Security, Inc. ("MSI"), pled guilty in the United States District Court for the District of Massachusetts to an Indictment charging him with one count of conspiracy and six counts of wire fraud. Pena was sentenced to 32 months in prison plus two years of supervised release, and ordered to pay $2.5 million restitution to the Government National Mortgage Association (Ginnie Mae). As set forth in part in the DOJ Release:

MSI contracted with Ginnie Mae to pool eligible residential mortgage loans and then sell Ginnie Mae-backed mortgage bonds to investors. MSI was responsible for servicing the loans in the pools it created, including collecting principal and interest payments from borrowers, as well as loan payoffs, and placing those funds into accounts held in trust by Ginnie Mae, which would ultimately pass them along to investors. Among other things, Ginnie Mae required issuers like MSI to provide regular reports to Ginnie Mae concerning the status of the loans in the pools.

Beginning in 2011, Pena began diverting money that borrowers were sending to MSI.  Specifically, Pena deposited high-dollar, loan-payoff checks into bank accounts unknown to Ginnie Mae and then used those funds for personal and business expenses. Pena also diverted borrowers' escrow funds and mortgage-insurance premiums for his own use. In total, Pena took approximately $2.5 million, which Ginnie Mae then had to pay to investors whose investments it had guaranteed. Pena also attempted to cover up his scheme by providing false reports to Ginnie Mae about the status of the loans MSI was servicing. These false reports made it appear that the loans were still in repayment.

Pena's co-conspirator, Gilda Andrade, who worked for Pena at MSI and helped Pena file false reports with Ginnie Mae, cooperated with the government's investigation. Andrade pleaded guilty to a misdemeanor charge of making a false statement to HUD in December 2017, and was previously sentenced by U.S. Magistrate Judge Judith G. Dein to one year probation and ordered to pay $108,240 in restitution to Ginnie Mae.

FINRA Publishes a Nearly Indecipherable Expungement Recommendation. In the Matter of the Arbitration Between Marc Layne Lowell, Claimant, v. Argentus Securities, LLC, Kestra Investment Services, LLC, and Securities America, Inc., Respondents (FINRA Arbitration Decision 18-02580)
In a FINRA Arbitration Statement of Claim filed in July 2018 and as amended, associated person Claimant Lowell sought the expungement of two customer complaints involving alleged unsuitable recommendations of a variable annuity and a variable life insurance policy. One of the customer complaints apparently settled after it had progressed to a FINRA Arbitration; and the other customer complaint apparently did not progress beyond the complaint and there was no settlement. 

Respondent Argentus did not file an Answer; Respondents Kestra and Securities America took no position on the requested expungement.  Respondents Kestra and Securities America were dismissed without prejudice pursuant to a conditional stipulation. Although both customers were notified of the expungement hearing, neither appeared at the hearing or contested the requested relief. 

The FINRA Arbitration Decision asserts in part that:

[T]he Panel noted that the settlement in Occurrence Number 1455352 was not conditioned on Claimant not opposing the request for expungement. The Panel noted that Claimant contributed to the settlement amount in Occurrence Number 1455352 and provided the following statement regarding Claimant's contribution: 

The Panel rules that Claimant believed that he was pressured into the contribution to the settlement and that the employer's attorney failed to properly represent Claimant in giving legal advice. It appeared to the Panel that the case settled by the Insurance Company as a matter of convenience at an amount less than the expected cost to settle it (nuisance value), and Claimant was pressured into the decision or would have to pay the full cost going forward.  . . .

Ummm . . . what? Who "provided" the "following statement?" Was that provided by the Panel or by Claimant Lowell? As much as I'm guessing that the "statement" is from the 2019 expungement Panel, I'm not all that certain. There is no indent for the statement. There are no quotation marks around the statement. If you think that I am taking this to extremes, go back and read the original mess for yourself.  Further, what are we to make of the "Panel rules that Claimant believed . . ." Three FINRA arbitrators are actually ruling on what they think someone "believed?" And what is it that they think Claimant Lowell believed? Oh, nothing more serious than that "he was pressured into the contribution to the settlement and that the employer's attorney failed to properly represent Claimant in giving legal advice." Holy shit, that's like alleging that the lawyer engaged in malpractice! Them thar's fightin' words. In any event, and most importantly, once we manage to get through the fog and haze of the Decision's language, it turns out that the FINRA Arbitration Panel recommended the expungement of both customer complaints' As noted in pertinent part in lucid and well-crafted explanations in the Decision:

With respect to Occurrence Number 1237607: 

There was never an arbitration claim filed nor were any allegations actually made of wrongdoing on the part of Claimant himself. The reporting to Claimant's CRD was clearly erroneous. The customer had voluntarily and with knowledge decided to terminate the annuity for personal reasons and was able to get the insurance company to waive the surrender charge. On Claimant's CRD records, however, the waiver of the surrender charge was erroneously characterized as a "settlement" with the customer. 

There were no damages or settlements. Claimant was not involved in any alleged investment-related sales practice violation, forgery, theft, misappropriation or conversion of funds. 

With respect to Occurrence Number 1455352: 

This is a case pertaining to the market correction in 2008-2009. The investment vehicle utilized in which to leave a substantial amount of assets to heirs was a variable universal life policy with growth assets as the underlying investments. 

Based upon the evidence presented, the Panel concluded that the information is clearly erroneous. The Panel also concluded that Claimant was not involved in the alleged investment-related sales practice violation, forgery, theft, misappropriation or conversion of funds. 

The Panel did not have a copy of the claim because it no longer exists but references to the claim and allegations contained therein were found in the Answer provided by Claimant. 

The Panel found no violations or errors in Claimant recommending the estate plan and purchase of variable life insurance at the time of creation, years prior to the FINRA action. The complaint centered upon the losses in the insurance years after purchase which was associated with a major market loss in 2008-2009. 

Testimony included that Claimant recommended, prior to the height of the market loss, several options to stem additional losses. The customer chose to disagree with this advice which lead to significant additional short term losses. 

We found no evidence that Claimant could be held responsible for the decisions of the customer.