Legal<\/strong> \u2013 procedural obstacle: Asset recovery involves working across borders, which is \r\ntough at best of times. Legal disharmony and restrictions can make accessing \r\ndocuments difficult. Individuals have rights and amongst them, in most societies, are \r\nrights to privacy, due process, protection of private property and equal and fair \r\ntreatment under the law. \r\nThe informal and financial obstacle: Investigators are trying to find money that has \r\nbeen deliberately concealed by a disciplined, well-funded, well-informed individual with \r\naccess to state power, global banks and smart lawyers. And money can be moved very \r\nrapidly. It is becoming harder to hide money because of changes in the way secrecy \r\njurisdictions are regarded, because of the spread of due diligence, and because of the \r\ntrend towards greater transparency, but many challenges still remain. The vast majority \r\nof asset recoveries involve overseas accounts, trusts and companies. In particular, \r\noffshore jurisdictions frequently have regulatory set-ups that are perfect to obscure \r\nlinks to money, with shell companies, nominee directors, and secrecy. \r\nThe political obstacle: In countries where assets have been transferred, there will also \r\nbe politics. Some country\u2019s governments are more supportive of private action than \r\nothers. Depending upon the targets of the investigation, the political process could be a \r\ndifficult barrier to overcome.<\/pre>\n
\n\u2022 Thorough understanding of asset protection schemes \r\n\u2022 Appreciation of legal restrictions \r\n\u2022 Judicial and investigative devices available in relevant \r\njurisdictions \r\n\u2022 Time, experience, and flexibility to handle changing facts\r\n\u2022 Well-conceived plan including asset freeze\/asset recovery, \r\ncarried out in three phases \r\nRecovery Requires<\/pre>\n
\nThe Approach<\/strong> \r\nPhase I: Investigating \r\nPhase II: Discovery - \r\nStarting the Process \r\nand Locating the Assets \r\nPhase III: \r\nFreezing the Assets \r\nSeizing the Assets \r\nRepatriating the Assets \r\nDetermine who, where, jurisdictions and amount. \r\nInves,gators trace assets via documents, electronic data, \r\ninformants, accounting, and information from banks and other third \r\nparties. Some may be available locally or via open sources; much will \r\nrequire help from foreign courts. \r\nOnce the assets have been located, they must be frozen in place by a \r\ncourt. Different jurisdictions have different rules. Again, it will be \r\ncritical to maintain confidentiality until the freeze is in place.<\/pre>\nThe assets must now be taken through a confiscation or seizure
\norder. There are different routes depending on jurisdiction and
\ncircumstance which requires working with other jurisdictions to get
\norders and to enforce them.
\nAssets must be transferred back to where they came from. This
\nraises a number of issues like: costs to other jurisdictions,
\ncompensating those who may have lost out in other ways, and
\nensuring that the proceeds go to the right place (and don\u2019t get
\nembezzled again).<\/p>\n
\nPhase I \u2013 Investigation and Scheme <\/strong>\r\nDevelopment<\/strong>\r\n1. Evaluate strengths\/weaknesses of case for damages and misappropriated \r\nfunds. \r\n2. Develop profile of fraudsters \r\n3. Analyze jurisdictions involved. Determine if they are favorable for recovery. \r\n4. Evaluate issues of legal reciprocity and mutual assistance between \r\njurisdictions. Decide most suitable forum(s) for recovery. \r\n5. Identify location of accessible assets. Determine what evidence will be \r\nnecessary for access and seizure. \r\n6. Identify concealment techniques utilized \r\n\u2022 Laundering money through local and international banks \r\n\u2022 Transfers to corporations, family members or friendly nominees \r\n\u2022 Transfers to discretionary trusts guarded by protectors \r\n\u2022 Payments into insurance policies held by captive insurance companies \r\n\u2022 Mortgage pay downs on assets held by family members \r\n\u2022 Purchases of cashiers or travelers checks \r\n\u2022 Purchases of art or jewelry<\/pre>\n
\nPhase I \u2013 Investigation and Scheme <\/strong>\r\nDevelopment (cont'd)<\/strong><\/pre>\n7. Multiple related parties \u2013 individuals and entities
\n8. Multiple accounts and financial instruments to hold and move assets
\n9. Variety of asset holdings, both as to the kind of assets and where and
\nhow held
\n10. Understand tiered holdings
\n11. Understand the function of knowing parties-facilitators
\n12. To constitute fraudulent transfer, many bank secrecy and tax havens
\nrequire that you must prove beyond reasonable doubt that:
\n– Trust was established with principal intent to defraud
\n– SeDler insolvent or without assets to satisfy creditor\u2019s claim<\/p>\n
\nWhere does the money go?<\/strong> \r\n\u2022 Belize: Caribbean nation; eight banks, one insurance company, 23 trust \r\ncompanies and 38,741 registered offshore corporations \r\n\u2022 British Virgin Islands: United Kingdom territory; 500,000+ registered \r\noffshore corporations \r\n\u2022 Cayman Islands: United Kingdom territory; 500+ banks and trust \r\ncompanies, 7,100 mutual and hedge funds \r\n\u2022 Isle of Man: Crown dependency of U.K.; 171 offshore service providers \r\n\u2022 Switzerland: Bank secrecy, stable currency and political system, recipient \r\nof most flight assets\r\n\u2022 Panama: Central American nation; 34 offshore banks, 350,000+ offshore \r\ncompanies \r\nThese jurisdictions require a high \r\nburden of proof to establish fraudulent intent.<\/pre>\n
\nUnited States<\/strong> \r\n\u2022 Discovery Action \r\n- Used to iden,fy poten,al defendants and theories of liability \r\n- Cannot be a fishing expedition \r\n\u2022 LeTers Rogatory\r\n- 28 USC \u00a71782(a), allows interested persons access to discovery orders to \r\nobtain evidence in the U.S. for use in foreign litigation \r\n- Party must be physically present in jurisdiction \r\n- Does not require pending proceeding \r\n- Judicial request to foreign tribunal, narrow in scope, cumbersome and slow\r\nEnglish Common Law<\/strong> \r\n\u2022 Norwich Pharmacal: Seeks informa,on from innocent third party holding \r\ninformation to assist victim to identify wrongdoers \r\n\u2022 Mareva Injunction: Allows complimentary discovery and enables seizure of \r\nassets to preserve for benefit of creditor until subsequent adjudication. \r\n\u2022 Anton Piller: Preserves evidence that could be destroyed. Needs to show \r\nstrong prima facie case and that respondent is in possession or control of \r\nevidence.\r\n10 \r\nPhase II \u2013 Discovery (cont\u2019d) \r\n\u2022 Hague Convention \r\n- Request to Central Authority that is transmiDed to foreign tribunal \r\n- Court conducts evidentiary proceeding, sends results back to U.S. court \r\n- Most member nations limit scope and extent of discovery \r\n\u2022 Compelled Consent Directives \r\n- Compel defendant to authorize third party to turn over documents and \r\nfinancial informa,on that might exist \r\n\u2022 Federal Rules \r\n- Compel one in possession, custody or control of documents to produce \r\nthem \r\n- Control means has legal right, authority and prac,cal ability to obtain \r\ndocuments<\/pre>\n
\nStatutory Freezing Orders<\/strong>\r\n\u2022 France \r\n- Existence of threat to ability to recover \r\n- Bailiff executes order \r\n- Must bring action against debtor within one month of order \r\n\u2022 Panama \r\n- Need proof of assets transferred to Panamanian party \r\n- Requires lawsuit to recover filed within six days of freeze \r\n\u2022 Switzerland \r\n- Criminal proceeding by public prosecutor \r\n- Seizure of assets is immediate \r\nPhase III \u2013 Freezing the Assets \r\n12 \r\nPhase III \u2013 Freezing the Assets (cont\u2019d) \r\nU.S. Asset Seizure Devices \r\n\u2022 Prejudgment ATachment \r\n- Legal right where assets are conveyed, concealed or removed \r\nto hinder, delay or defraud creditors \r\n- Assets present in jurisdiction if jurisdiction over defendant, \r\ncan prohibit defendant from disposing of foreign assets and \r\nfor unconscionable conduct, order repatria,on of foreign \r\nassets\r\n\u2022 Prejudgment Injunction \r\n- Only applicable when asserting equitable claims<\/pre>\n","protected":false},"excerpt":{"rendered":"nov-webinar-attacking-plans View Presentation Slides How to Break Through an Asset Protection Plan Presented by: TOOLS FOR RECOVERING ASSETS Paul Brown, Karr TuDle Campbell Common Misconceptions \u2022 Victim should rush to file suit\/obtain a judgment \u2022 Pre-judgment discovery is unlikely\/unavailable \u2022 Focus should be on tracing assets \u2022 Can only freeze and seize assets after a […]<\/p>\n","protected":false},"author":49,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[],"_links":{"self":[{"href":"https:\/\/www.assetprotectiontraining.com\/wp-json\/wp\/v2\/posts\/1719"}],"collection":[{"href":"https:\/\/www.assetprotectiontraining.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.assetprotectiontraining.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.assetprotectiontraining.com\/wp-json\/wp\/v2\/users\/49"}],"replies":[{"embeddable":true,"href":"https:\/\/www.assetprotectiontraining.com\/wp-json\/wp\/v2\/comments?post=1719"}],"version-history":[{"count":0,"href":"https:\/\/www.assetprotectiontraining.com\/wp-json\/wp\/v2\/posts\/1719\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.assetprotectiontraining.com\/wp-json\/wp\/v2\/media?parent=1719"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.assetprotectiontraining.com\/wp-json\/wp\/v2\/categories?post=1719"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.assetprotectiontraining.com\/wp-json\/wp\/v2\/tags?post=1719"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}