Articles Posted in Viaticals

UBS Financial Services Inc. of Puerto Rico (UBS) has agreed to pay $26.6 million to settle the Securities and Exchange Commission administrative action accusing the financial firm of misleading investors about its control and liquidity over the secondary market for nearly two dozen proprietary closed-end mutual funds. By settling, UBS Puerto Rico is not denying or admitting to the allegations.

Per the SEC, not only did UBS Puerto Rico fail to disclose to clients that it was in control of the secondary market, but also when investor demand became less in 2008, the financial firm bought millions of dollars of the fund shares from shareholders that were exiting to make it appear as if the funds’ market was stable and liquid. The Commission also contends that when UBS Puerto Rico’s parent firm told it to lower the risks by reducing its closed-end fund inventory, the Latin America-based financial firm carried through with a strategy to liquidate its inventory at prices that undercut a number of customer sell orders that were pending. As a result, closed-end fund clients were allegedly denied the liquidity information and price that they are entitled to under the law. UBS Puerto Rico must now pay a $14 million penalty, $11.5 million in disgorgement, and $1.1 million in prejudgment interest.

The SEC has also filed an administrative action against Miguel A. Ferrer, the company’s ex-CEO and vice chairman, and Carlos Ortiz, the firm’s capital markets head. Ferrer allegedly made misrepresentations, did not disclose certain facts about the closed-end funds, and falsely represented the funds’ market price and trading premiums. The Commission is accusing Ortiz of falsely representing the basis of the fund share prices.

In other stockbroker fraud news, the U.S. District Court for the District of Colorado has denied Morgan Keegan & Co. Inc.’s bid to vacate the over $40,000 arbitration award it has been ordered to pay over the way it marketed its RMK Advantage Income Fund (RMA). Judge Richard Matsch instead granted the investors’ motion to have the award confirmed, noting that there were “many factual allegations” in the statement of claim supporting the contention that the firm was liable.

Per the court, Morgan Keegan had argued that the arbitration panel wasn’t authorized to issue a ruling on the claimants’ bid for damages related to the marketing of the fund, which they had invested in through Fidelity Investment. Morgan Keegan contended that seeing as it had no business relationship with the claimants, it couldn’t be held liable for their losses, and therefore, the FINRA arbitration panel had disregarded applicable law and went outside its authority. The district court, however, disagreed with the financial firm.

In other stockbroker fraud news, the SEC has reached a settlement with a Florida attorney accused of being involved in a financial scam run by a viaticals company that defrauded investors of over $1 billion. The securities action, which restrains Michael McNerney from future securities violations, is SEC v. McNerney. He is the ex-outside counsel for now defunct Mutual Benefits Corp.

The MBC sales agent and the company’s marketing materials allegedly falsely claimed that viatical settlements were “secure” and “safe” investments as part of the strategy to get clients to invest. The viaticals company also is accused of improperly obtaining polices that couldn’t be sold or bought, improperly managing escrow premium funds in a Ponzi scam, and pressuring doctors to approve bogus false life expectancy figures.

McNerney, who was sentenced to time in prison for conspiracy to commit securities fraud, must pay $826 million in restitution (jointly and severally with other defendants convicted over the MBC offering fraud).

UBS Puerto Rico unit to pay $26.6 mln in SEC pact, Reuters, May 1, 2012

Morgan Keegan & Co. Inc. v. Pessel (PDF)

SEC Files Charges Against Former Attorney for Mutual Benefits, SEC, April 30, 2012

More Blog Posts:
Stockbroker Fraud Roundup: SEC Issues Alert for Broker-Dealers and Investors Over Municipal Bonds, Man Who Posed As Investment Adviser Pleads Guilty to Securities Fraud, and Citigroup Settles FINRA Claims of Excessive Markups/Markdowns, Stockbroker Fraud Blog, April 10, 2012

Commodities/Futures Round Up: CFTC Cracks Down on Perpetrators of Securities Violations and Considers New Swap Market Definitions and Rules, Stockbroker Fraud Blog, April 20, 2012

Institutional Investor Fraud Roundup: SEC Seeks Approval of Settlement with Ex-Bear Stearns Portfolio Managers, Credits Ex-AXA Rosenberg Executive for Help in Quantitative Investment Case; IOSCO Gets Ready for Global Hedge Fund Survey, Institutional Investor Securities Blog, March 29, 2012 Continue Reading ›

The Securities and Exchange Commission has charged Jody Dunn with fraud. Dunn is accused of soliciting $3.45 million from over 7,000 deaf investors in a Texas securities scam. He is also deaf. According to the SEC, he engaged in material misrepresentations, the fraudulent and unregistered offering and selling of securities, and the misappropriation of investor funds.

Per the commission, Dunn told investors he would place their money with Imperia Invest IBC, which guaranteed returns of 1.2% a day. He solicited investments for Imperia between August 2007 and July 2010.

While he did send the send the remaining funds to the Imperia-owned offshore accounts, he never confirmed that the financial firm was really investing the money-even though he allegedly knew that Imperia lost investor funds and wasn’t properly crediting clients’ accounts. Dunn also never paid investors the interest they were owed and he failed to tell them that his fee was more than 10% of the money he collected from them.

Last year, the SEC charged Imperio with involvement in a $7 million fraud scam and secured a court order freezing the internet-based firms assets. The SEC claims that Imperia defrauded approximately 14,000 investors, who were told that they could only obtain their money by paying a few hundred dollars for a Visa debit card. Apparently, however, the financial firm did not have ties Visa and it never paid any money back to its victims.

In the commission’s complaint against Dunn, it is accusing him of making a number of misrepresentations to investors including:

• Claiming he would help them get into Traded Endowment Policies (viatical settlements) by having them invest through Imperia even though none of their money was used to buy TEPs.

• Claiming he knew the people behind Imperia even though he had never met anyone affiliated with the financial firm.

• Not being able to give an accurate analysis of the way he calculated profits or fees.
TEPs or Viatical Settlements
With TEPs, the insurance policy owner sells the policy before it matures. These are sold at a discount but in an amount greater than the current cash surrender value. All beneficial obligations then go to the new owner. Investors of the Imperia-offered TEP investments had to put in at least $50 for an $80,000 loan from a foreign bank. The funds were then supposed to go toward buying a TEP. The SEC is accusing Dunn of violating sections of the Securities Act and sections of the Exchange Act and Rule 10b-5 thereunder.

SEC Charges Solicitor in Investment Scheme Targeting Deaf Community, SEC, September 9, 2011
Texan defrauded deaf investors out of $3.45M, Investment News, September 12, 2011
Read the SEC Complaint (PDF)

SEC Charges Internet Company With Defrauding the Deaf, New York Observer, October 7, 2010

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Morgan Keegan & Company Ordered by FINRA to Pay $555,400 in Texas Securities Case Involving Morgan Keegan Proprietary Funds, Stockbroker Fraud Blog, September 6, 2011
Texas Minister Pleads Guilty to Involvement in $7.2M “White Hat Guys” Securities Fraud that Bilked Thousands of Petro America Corporation Investors in the US and Canada, Stockbroker Fraud Blog, June 21, 2011
Alleged $800 Affinity Fraud Scheme Prompts SEC to Sue GTF Enterprises and Its Money Manager, Stockbroker Fraud Blog, June 4, 2010 Continue Reading ›

A district court issued an emergency order this month to freeze the assets of Imperia Invest IBC. The order came after the Securities and Exchange Commission accused the internet-based investment company of operating a securities scam involving the British version of viatical settlements.

According to the SEC, Imperia Invest IBC had raised over $7 million from more than 14,000 investors located in different parts of the world with the promise that they would earn returns of just above 1% a day. More than half of the money raised came from deaf investors in the US. The agency is seeking disgorgement of fraudulent gains, penalties, an injunction from future violations, and emergency relief for investors.

The SEC claims that the investment company solicited investors through its Web site, which stated that returns could only be accessed through a Visa credit card and purchased from Imperia for a few hundreds dollars. The company, however, did not have a business tie with the credit card company. Imperia also listed bogus addresses in Vanuatu and the Bahamas.

The Securities and Exchange Commission staff report is recommending that the US Congress define life settlements as securities to make sure that investors of these types of transactions receive federal securities law protection. The SEC says there are several benefits to making such an amendment to securities laws:

• This would clarify life settlements’ status under federal securities law, which would allow the federal government and the states to deal with them in a more consistent manner.
• Life settlement market intermediaries would then fall under the regular framework of the Financial Industry Regulatory Authority and the SEC.
• FINRA and the SEC would have clear authority to police the life settlement market, which could help detect securities fraud and discourage financial abuses.

The Life Settlements Task Force prepared the report, which notes “inconsistent regulation of participants” in the life settlements market and that pools of life settlements and individual transactions “would benefit” from “baseline standards of conduct to market participants.” SEC staff is also recommending that the commission:

• Urge Congress and state officials to think about regulating life expectancy underwriters in a more consistent and significant manner.
• Tell staffers to make sure that providers and brokers are meeting legal standards of conduct.
• Have staff members look for the development of a life settlement securitization market.

It was just in early July that US Senator Sen. Herb Kohl released a General Accountability Office report that found that the inconsistent regulation of life settlements create several challenges:

• Some police owners in certain states are not as well-protected.
• Some individual investors may have a hard time getting enough information about their investments and the risks that may be involved.
• Because laws across states are not consistent, this can pose a problem for some providers and brokers.

Related Web Resources:
SEC Releases Report of the Life Settlements Task Force, SEC, July 22, 2010
Sen. Kohl Says GAO Report Supports Tougher Settlement Regs, LexisNexis, August 2, 2010
Read the Life Settlement Task Force Report (PDF)
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State District Court Judge Stephen Yelenosky has frozen the assets of Retirement Value LLC and appointed a receiver to take control of the New Braunfels company, which faces allegations of Texas securities fraud related to the sale of investments linked to death benefits from life insurance policies. The Texas State Securities Board, which has been conducting an undercover investigation into the company, requested the court order against the investment firm.

Retirement Value, its President Richard “Dick” Gray, and Chief Operating Officer Bruce Collins are defendants in the court action. According to the securities board, between April 2009 and February 2010 the company allegedly collected $65 million from more than 800 investors. The securities board also claims that investment firm told investors that the expected rate of return would be 16.5% payable upon maturity.

The claim contends that from the $65 million that the Retirement Value received from investors, $9.3 million was paid in commissions to unregistered sales agents. Meantime, Retirement Value, Gray and other principals in the company retained $8.4 million. Only $20.2 million was used to acquire the interests in the life insurance policies, while another third was set aside to acquire additional policies.

In the U.S. District Court for the Southern District of Texas, the US Securities and Exchange Commission is suing Kelly Gipson and Charles Jordan for allegedly orchestrating a multi-million dollar viaticals scam (in the secondary market for life insurance). On March 22, the agency said the court had granted its request for a temporary order to freeze the defendants’ assets.

Also, a receiver has been appointed to take charge of their business, American Settlements Association LLC, and their assets. The SEC is seeking preliminary and permanent injunctions, civil penalties, disgorgement plus prejudgment interest.

Per the agency’s complaint, Gipson and Jordan made at least $2.3 million from March to December 2007 by selling interests in a life insurance policy to over 50 investors in 10 states. They told them they would spend the funds on future premium payments so that the policy wouldn’t lapse. Instead, Gipson and Jordan mixed investors’ money with their funds and diverted it toward their personal spending, including travel, jewelry, entertainment, and casinos.

The Securities and Exchange Commission is stepping up its efforts to combat senior investment fraud. In 2010, the SEC plans to focus on issues related to retirement investments, including product development, disclosures, and marketing issues.

The need to better regulate the retirement products arena and actively take action against securities fraud that targets elderly people has increased now that some 55 million senior investors are involved in defined contribution plans. The SEC is currently taking a closer look at life settlements (also called viatical settlements) and target date funds.

Viatical settlements involve transactions made by chronically ill or older people who sell their life insurance policy benefits to investors. In turn, these investors pay the premiums and collect the payout upon the seller’s death. According to the Senate Special Committee on Aging, the life settlement industry has doubled in value in the last 3 years and will likely exceed $150 billion in a few decades.

At this time, the SEC has limited authority over life settlement securities, which fall under its purview when they are solid in capital markets but also are sold in private offerings. On October 22, SEC Chairperson Mary Shapiro spoke at an American Association of Retired Persons forum. She called the life settlement market one of “emerging interest” and said its products could become Wall Street’s “next big securitized products.” The SEC has established a task force to determine whether this area of the market is regulated enough.

Shapiro expressed concern that many seniors may not comprehend the consequences of selling their life insurance policies to investors. She noted that tax benefits and the ability to get life insurance later on can be lost.

Shapiro says the commission is looking at target date funds and a target date’s use in the fund’s name. Target date funds are vehicles for college savings and retirement plans that move toward more conservative holdings as a specific date approaches. The SEC is taking a closer look at marketing and advertising collaterals to figure out if investors are getting accurate information about these products. Shapiro noted that some target-date funds lost up to 40% of their value when the economy collapsed last year.

Related Web Resources:
Schapiro: Settlements Need Watching


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House Financial Services capital markets subcommittee chairman Rep. Paul Kanjorski recently warned that unless “additional safeguards” are put in place, the growing securitization of life insurance settlements could lead to the next financial crisis. During a hearing on the issue, Kanjorski said regulators, Congress, and credit ratings agencies should have done a better job moderating the high demand for subprime mortgage backed securities. He says their failure to supervise contributed to the financial debacle.

Life settlements, also known as viaticals, are not securities, but they do fall under the purview of the Securities and Exchange Commission when they are pooled and put up for sale in the capital markets. They are, however, at this time not subject to a registration requirement and have been sold during private offerings. Because of this, the SEC only has limited authority over life settlements.

The agency has set up a task force to assess the issues involving life settlements. The task force will determine whether regulatory changes need to be made and if Congress should expand the SEC’s authority.

According to the SEC Division of Corporation’s associate director Paula Dubberly, life settlements investors need full disclosure so they can understand the risks that arise with the viaticals’ securitization. The task force will examine the “tension” between the insured’s privacy rights and providing investors with this type of disclosure.

Credit Suisse’s Life Finance Group global head Kurt Gearhart says that as only 35 states regulate life settlements, consumers are lacking protection in 15 states. National Association of Insurance Commissioners vice president Susan E. Voss, however, disagrees with Gearhart’s figures. He says there is some form of life settlement regulation in 45 states. Meantime, Life Partners Holdings Inc. chairman and chief executive officer Brian D. Pardo is calling for stronger federal regulation.

Related Web Resources:

Panel To Look At Life Settlement Securitization
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The US District Court for the Western District of Michigan says that under Oklahoma and Michigan laws, viatical settlements are securities. The court, however, did not rule on whether the instruments are securities under Texas law.

Investors in a number of states had sued Trade Partners Inc. and its affiliate partners for viatical settlements that were sold between 1996 and 2003. They wanted the courts to have the instruments declared securities under Texas, Oklahoma, and Michigan laws.

The court noted that earlier in the year, it found that under the Michigan Securities Act, the instruments were settlements under Michigan law. And, based on relevant information and the fact that in 2004, the Oklahoma Securities Act was amended and viaticals became included in the definition of what constituted an “investment contract” securities, the district court found that under the Oklahoma Securities Act, viatical settlements are securities.

The court pointed out, however, that the only Texas court that had considered the issue did not find that the instruments were securities under the Texas Securities Act. It also noted that the Texas Securities Board had told a defendant in a state criminal case that viaticals were securities. Because of these conflicting authorities, the district court opted not to determine whether, under the Texas Securities Act, viatical settlements are securities.

A viatical settlement is also called a life settlement. In this kind of transaction, a chronically ill or terminally ill person can sell his or her life insurance benefits to another party.

Oklahoma Uniform Securities Act of 2004

The Texas Securities Act

Michigan Legislature
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What do Bear Stearns, Deutsche Bank, Lehman Brothers, Merrill Lynch, UBS, Wachovia and Wells Fargo and other big securities firms have in common? No conscience. For decades we have thought that Wall Street will do anything for money. Now we are sure.

Two years ago, about 250 people attended an event in New York to discuss yet another exotic product to come out of Wall Street. This spring, as the subprime mortgage market was crumbling, nearly 600 representatives of most largest players in the finance industry met to talk about the product, one they could sell investors which had enough pricing difficulty that large mark-ups could easily be generated. That product is “death bonds.”

In brightly lit rooms with a festive atmosphere, the wizards of Wall Street discussed how they could profit off diseased and dying folks who happen to have life insurance. Death bonds are securitized products which, instead of mortgages, are backed by life insurance policies.

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