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Victim of Fraud for Loan Application: My father is now a bankrupt and the accused wants to take action against him

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asked on Feb 13, 2018 at 08:51
by   Qiena
edited on Mar 11, 2018 at 03:01
 
My father has been a victim of fraud for a loan application. One (the accused) of his friends had all his necessary documents and applied for a hire purchase loan under his name to buy a BMW car. The accused forged my father's signature and paid someone to be my father's imposter and had been successful in getting the loan approved by Maybank.

In 2009, my father received a Bankruptcy Notice. He has no idea about the loan and made several trips to the court. Unfortunately, the court finally adjudged my father a bankrupt. My father has to make payment to the Insolvency Department every month which is burdening.

This case had been taken over by the police in locating the car. Chemist lab test revealed that the signature was forged. Also, the CCTV footage at Maybank counter shown that the person was not my father.

In mid 2017, police tracked down and arrested the accused. The accused pleaded not guilty. He wants a trial. However, yesterday the accused has been released under discharge not amounting to an acquittal (DNAA) order since the investigation officer (IO) didn't come to the court, and the IO only informed my father early in the morning of proceeding day. The trial was at High Court Kota Kinabalu, Sabah and right now my father is in Negeri Sembilan, which the IO knows about this.

After the DNAA order, the accused started threatening my father saying he wants to "saman malu", and claims all his damages and loss during the police remand until the trial.

Can he actually claim all the damages from my father since this is a criminal case. And even if he managed to prove himself not guilty whether my father would still be liable for all the claims?
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7 Answers
answered on Feb 13, 2018 at 09:23
by   jeff005
edited Mar 11, 2018 at 02:38
 
Victim of Fraud for Loan Application: How to stop payment to the Insolvency Department?

Asked on Feb 13, 2018 at 09:11

My father is a victim of fraud and has been bankrupt since 2012. Now the accused had been arrested and there is a police investigation report stating that this case is a fraud case.

My father has already sent a letter to the Jabatan Insolvensi Malaysia (JIM) with a copy of the police report attached to apply for stop payment to JIM. However no response given.

How to discharge from bankruptcy or stop the payment to the Insolvency Department because my father's case is already confirmed as criminal case?
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answered on Feb 13, 2018 at 09:32
by   jeff005
edited Mar 11, 2018 at 02:42
 
Personal Comments (non-legal, non intrusive)

1. One (the accused) of his friends had all his necessary documents and applied for a hire purchase loan under his name to buy a BMW car.
Your father is not without fault too. There was intention to purchase a BMW car regardless of the modus operandi. This is very common scam cases for motor vehicles.

2. In mid 2017, police tracked down and arrested the accused.
Now the accused had been arrested and there is a police investigation report stating that this case is a fraud case.
Fraud case is hard to prove and tedious to fight. Classified as fraud does not mean your father has been cleared of the case and still remained as a party to the fraud case. Worst case scenario, a notable accomplice.
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answered on Feb 13, 2018 at 09:53
by   jeff005
edited Mar 11, 2018 at 02:55
 
3. Can he actually claim all the damages from my father since this is a criminal case.
YES under Torts Claims.

And even if he managed to prove himself not guilty whether my father would still be liable for all the claims?
YES under Torts Claims.

Since your father has been adjudged a bankrupt and is under the Jabatan Insolvensi Malaysia (JIM) case management, the accused has to seek permission from JIM DGI to sue your father in court. In the event of any awards to the accused, he has to file proof of debt to JIM to make claims... hahahahaha...

This accused is just making empty threats. Sue a Bankrupt? Be our Guest of Honour!!

4. My father has already sent a letter to the Jabatan Insolvensi Malaysia (JIM) with a copy of the police report attached to apply for stop payment to JIM. However no response given. 
Your father has been adjudicated a Bankrupt by a Court of Law. Only the High Court can annul or discharge him from bankruptcy. Barking up the wrong tree..!!

5. Chemist lab test revealed that the signature was forged.
How do chemical tests reveal signature forgery? Stupid evidence test..!!
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answered on Feb 19, 2018 at 03:38
by   prdv
edited Mar 11, 2018 at 03:02
 
DO NOT PANIC the chemist report is 100% proof of forgery the bank should set aside the
bankruptcy as the hp agreement is void if fraudster found guilty at criminal trial. Get a lawyer to do this. The fraudster should be charged again as it was only a DNAA (discharge not amounting to acquittal) as IO failed to attend?! After all IO discovered the fraud. Lawyer will know why IO did not attend and to get DPP to charge again.

Fraudster under DNAA has no basis for a defamation suit. Until fraudster is found guilty the bankruptcy cannot be set aside and all monies paid under insolvency repaid by bank.

Note: A bankrupt can be sued for defamation but in your dads case the fraudster has a hopeless defamation suit because of the DNAA.
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answered on Feb 19, 2018 at 11:54
by   prdv
edited Mar 11, 2018 at 03:00
 
When did your dad get personal knowledge of the forgery? Please check with the senior officer above the IO if investigation papers were opened by the IO as then the IO had  obtained a government chemist to analyse the signature.

Was the fraudster really charged in Court? If yes then from the date of the charge and chemist report the insurance company for the car must be aware of the fraudster obtaining insurance under your dad's name and by law must pay the market value at the time finance company sued your dad for car instalment and release /discharge your dad as a bankrupt.

Now if the Chemist Report is genuine and insurance company are not aware then your dad has 6 years from date of your dad's personal knowledge of Chemist report to get insurance company pay the bank financier for car. SO IF the criminal proceedings are genuine please put the BMW car insurance on notice. JPJ search will have the insurance company. If car is a "barang kes" for the trial not worth selling it after trial to pay bank.

My guess is that if there is no genuine criminal trial than the allegation of suing your dad for defamation for wrongful prosecution is baseless unfortunately your dad is still considered genuine owner & borrower and bankruptcy remains. Just get a lawyer to help with checking if criminal trial is genuine.
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answered on Feb 19, 2018 at 12:19
by   Anonmyous
edited Mar 11, 2018 at 03:03
 
Perhaps it would be prudent to investigate why the IO did not attend the hearing despite being aware of it. Thus allowing the DNAA. Not having a strong case for fraud or scam is wasting courts time. The IO is smart.

@Queina,

Your basic questions on Insolvency payments default, to be sued, can be sued have been answered. Can you afford a lawyer to go into Forensic Investigation of Frauds and Scams when the bankrupt maybe struggling on the monthly repayments?

How to pay for the services of a Criminal Competent Lawyer?
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answered on Feb 19, 2018 at 14:04
by   jeff005
edited Mar 11, 2018 at 03:11
 
DO NOT PANIC the chemist report is 100% proof of forgery the bank should set aside the bankruptcy
1. The bank do not have the power to set aside any bankrupt status.
2. If the signatures on multiple documents differs, definitely there is forgery. No need chemist report. Just file those documents as evidence in Court is good enough. We have yet to have a Judge with vision disability.

Also, the CCTV footage at Maybank counter shown that the person was not my father.
Who did it show? The accused? The accused went into the bank to submit those documents on his behalf? Did the CCTV show that the accused put his "signature" at that place where your father is supposed to sign in the presence of the officer? Was there MyKad verification for signing and submissions of all the documentations like signing on every page of the HP agreement?

since 2009
Could have made an application for discharge after 5 years of case management with Jabatan Insolvensi Malaysia (JIM). Now is 2018. Why spent huge amount of lawyer fees with no possible good ending. Even the IO has to give up.

Logic vs No Logic
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