We have received many positive responses to our April 2, 2016 article on tackling scammers. Most of the responses came from people who have been victims of a scammer. In the week in which we wrote the article, “fake lawyers” were also in the news. There is a gang of scammers who approach their victims again. They then say that they are lawyers (in this case in London) and they ask for money to go after the perpetrators. Never go into this! A real lawyer never takes on cases and new clients by phone, with a real lawyer you always have a conversation at his office first.
We also received many questions about the legal means that a lawyer can use to recover the damage from a scammer. The article of April 2, 2016 was about tackling scammers through civil court. Words like “fraud” and “fraud” are not in the Civil Code. So what are the tools we use to recover money from a scammer in a lawsuit? In this article we give a look into our kitchen. This is how we work when we sue a scammer on your behalf.
If you have been scammed and you do not want to leave it at that, then you will draw up a plan of action together with your lawyer. You discuss with the lawyer what happened, how you were defrauded, what the weaknesses and strengths of the claim are, and so on. Perhaps for the first time in your life you need a lawyer.
Scammers and fraudsters think differently than you do. For example, they divert money when you start legal proceedings so that you miss out after the judge’s decision. The first thing you do with your lawyer is to investigate whether the fraudster’s property or bank balance can be pre-judged to secure your claim. Prejudgment attachment means attachment that is made in advance and unexpectedly. The judge can give permission for this without the other party being heard. So it is really an unexpected fitting, which increases the chance of success.
Legal basis required
A procedure against a scammer or a fraudster starts with a subpoena. The summons contains the claim, but it must also state on which articles of law the claim is based. It is the duty of a lawyer to define the correct legal basis. In doing so, he will consider strategically which basis best suits the requirement to maximize the chance of award by the court. Some grounds are more difficult to prove than others. In some cases more than one basis is put forward. The judge must then assess all of these.
This is an example of a legal basis that often occurs in fraud and fraud cases. You can get compensation for a wrongful act . Relatively high requirements must be met before a wrongful act can be established. The question of whether there is a connection between the wrongful act and the damage (causality) is also sometimes difficult. Wrongful act is not always the smartest ground, because the demands are high.
If a scammer embezzles money that he is not entitled to, because there is no valid agreement, then the recovery can be based on the legal provisions on undue payment . This is a claim that often stands a chance. It often falls for a fraudster if there is no agreement to prove that he is entitled to the money. For that reason, undue payment as a legal basis is usually smarter from a procedural point of view than tort. These types of cases often involve scammers who leave clear traces. Such as, for example, a caregiver who transfers money to his own account because he knows a PIN code. You will then find the payments in bank statements.
Defects of will
The word deceit appears literally in the law. In case of fraud, the court can annul an agreement. This also applies to threats, error and abuse of circumstances. This approach therefore only helps with forms of fraud if the agreement itself is valid. It therefore does not help against various forms of embezzlement or fraud where there is no agreement at all between the scammer/fraudster and the victim. If you bet on a “lack of will” you assume the agreement is valid, but you want to have it declared invalid by the court. So that is different from an undue payment; you use that basis if there has never been an agreement/contract/agreement. Incidentally, if the court indeed declares the agreement invalid (destroys it), then you are again dealing with undue payment: the money paid must then be repaid because there is no longer an agreement. But the claim for invalidity (nullification) is not assessed by the court by applying the rules about undue payment, but by applying the rules about defects of will: deception, threat, error and abuse of circumstances.
In lawsuits, you must state (“state”) the facts that are necessary to have the claim awarded on the basis of the section of the law you invoke. These facts can be contradicted by the scammer or fraudster (“deny” or “dispute”). If this is done with good substantiation, then the judge cannot simply assume that it went as the plaintiff states: the facts “have not been established”. Therefore, you should think in advance about whether the facts can be proven. A good litigator takes this into account. Evidence that is missing can sometimes be obtained in a convenient way. Evidence that there is must be presented at the right time. Sometimes in a doubtful case you can ensure that not yourself, but the other party has to provide (counter) evidence, so that the other party is at a disadvantage. Someone who has to prove something in a procedure runs the risk of not being able to provide the evidence; before that happens, you can cleverly shift the risk to the other party. As a lawyer, we can collect evidence in several ways. For example, by questioning a witness or by imposing the obligation on the other party to provide information.
Posted by Marius Hupkes
Marius Hupkes is a lawyer