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SCAMPULSE
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SCAMPULSE
If you know any contact information for UBAY, help other victims by adding it!
Scammer's website ubaying.com
Country United States
Victim Location AK 99516, USA
Type of a scam Phishing
1
Bank of America
100 N Tryon St.,
Charlotte, NC 28202,
United States
Re: Demand Letter
For negotiation purposes only, without effect as to any and all rights
Attn: Claims/Fraud Dept.
Dear Sir/Madam,
The goal of this letter is twofold: first, it aims to establish that a duty of care has been breached,
inasmuch as you have failed to perform adequate due diligence and/or have not acted in a
reasonable and prudent manner to prevent foreseeable substantial damages that I have suffered as
a result of a fraud [1]. Second, it shall serve as a formal written demand for reimbursement based on
the aforementioned grounds, among others.
A comprehensive analysis of fraud prevention suggests that by processing atypical, non-routine
transactions, and/or by being aware of other fraudulent schemes similar to the one alleged herein
and/or ignorance of obvious warning signs of fraud, you have engaged in, is a pattern or a practice
of wrongful and negligent conduct which has enabled the commission of a fraud that resulted in my
financial and psychological damages. The facts and details concerning the actions in question are
set forth hereunder.
OVERVIEW
? Commencing on or about December 8, 2021, I fell victim to a multilayered scam operation
orchestrated by Ubay (the “Company”), with the design, development, manufacture,
promoting, marketing, distribution, labeling, and/or sale of illegal and outright fraudulent
“investment services," all of which aim at contributing to the goal of robbing and defrauding
clients, through a predetermined cycle of client losses to gains.
? Money was transferred from my account via bank wire and through an intermediary named
"Gemini" in the total amount of 948,000.00 USD utilizing your services.
1 FCA: “A more effective approach to combatting financial crime” (21 September 2016)
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? Additionally, it is vital that you will immediately take all actions within your power to remedy
the situation, whether by raising recall in respect of the transactions in question or reimburse
me and credit my account, for the full amount of these payments, in the total amount of
948,000.00 USD!
? This letter shall thrust into the spotlight, inter alia, the increasingly important role financial
institutions play in the fight against financial crime and fraud, and the pressing need for
higher levels of supervision and vigilance within your organization.
? Had you looked at the wider circumstances surrounding the above-referenced transactions,
this illicit transfer of wealth could have been prevented.
? Executing transactions without proper authority is not only a severe regulatory offense but
also an irresponsible and reckless disregard of the customer’s financial safety.
? Against this background, and without derogating any of my rights, I hereby hold you liable for
financial and emotional harm, and insist that you reimburse my account in full within 14 days
from the date of this letter.
INTRODUCTION
Financial crimes and fraud investigations often involve a high degree of sophistication, complexity,
and sensitiveness to detail. Accordingly, this letter aims to address the issue at hand as profoundly
and fairly as possible, by taking into consideration contextual regulations, laws, and bylaws, as well
as guidance, standards and rules promoted by supervisory authorities, relevant codes of practice
and (where suitable) what was good industry practice (GIP) at all times relevant hereto. The
allegations contained herein are predicated either upon knowledge with respect to myself and my
own experience, or upon facts obtained through investigations conducted by qualified third parties. I
strongly believe that substantive evidence in support of the allegations set forth herein will be found
after an appropriate opportunity for discovery. Key facts supporting the allegations contained herein
are known only to the Company and/or are exclusively within their control.
The Company cleverly orchestrated a prevalent scheme of deception to lead people to invest
significant sums while knowing that those would-be investors would ultimately lose the money that
they had entrusted to it. The overall purpose of the scheme, in other words, was to target and
defraud people who are often inexperienced and naive, in pursuit of illicit wealth through various
fraudulent representations.
I did not know, and through the exercise of reasonable diligence could not have discovered the
fraud that was being perpetrated upon me by the Company. Fraud is commonly conceptualized as
withholding from the weaker party in a financial transaction (e.g., an investor) information which is
necessary to make an informed, rational or autonomous decision.
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In this regard, even access to adequate information is insufficient to achieve complete autonomy. A
complication here is that the weaker party, amateur/unseasoned investors in particular, might have
trouble analyzing the data at hand sufficiently well to identify fraudulent schemes. Unfortunately,
because financial products are often abstract and complex, there’s no easy solution to this problem.
Therefore, full autonomy of investors might not only require access to sufficient information, but also
access to relevant technologies, know-how, processing capabilities, and resources to analyze the
information. A reasonable solution is that financial institutions would be required to promote
transparent communication in which they track the understanding of their customers.
The false representations and omissions made by the Company have a tendency or capacity to
deceive consumers, such as myself, into unwittingly providing funds that fueled the Company’s
fraudulent scheme and therefore by their nature are jointly — immoral, unethical, oppressive,
unscrupulous, and substantially injurious to consumers.
As a result of the Company’s deceptive trade practices, I was deceived into transferring my funds
for investment returns that were never delivered. I will certainly never receive any monetary value
for the investments considering the way the Company had their scheme rigged thus causing
significant economic damage to me. The false statements of material facts and omissions; and the
fraudulent transactions the Company perpetrated were unfair, unconscionable, and deceptive
practices perpetrated which would have likely deceived any reasonable person under the
circumstances.
MERCHANT’S FRAUD SCHEME — ALLEGATIONS
The Company hired, managed and trained personnel, and collaborated with others as
accomplices to their crimes to induce fraud that resulted in my financial and psychological
damages. These include, but are not limited to, the following allegations, all of which involve
criminal, non-regulated, and malicious activities:
1. The Company directed and instructed others to work from shell companies that were
operating from various unassociated locations across the globe.
2. The Company opened bank accounts and crypto currency wallets in multiple countries
and used them through their accomplices from around the world to conceal and disguise
the identity of illegally obtained proceeds so that they appear to have originated through
legitimate sources.
3. The Company intentionally committed fraudulent misrepresentation, and falsified its agent
names, credentials, competencies, qualifications and location. The Company’s name is
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merely a brand name, officially owned by shell corporations located offshore. In reality, the
entire operation is being conducted from elsewhere (supposed location is evidently
fictitious), and furthermore, the call center, marketing, and decision making, are all being
performed by completely anonymous and hidden entities. Concealing true identities and
utilizing front companies as a vehicle for a wide spectrum of financial maneuvers, is a
notorious practice of criminal organizations.
4. The Company has blatantly violated international laws, as it has been practicing without
a license and funneling enormous sums of money, through countries and jurisdictions
that require registration to operate.
5. The Company provided direct investment advice - not utilizing 3rd party recommendations
(e.g., “according to Bloomberg TV/Investing.com”)
6. The Company offered investment services/advice not related to real market/exchange
data (e.g.: the manufacture of false charts). The trading platform was purposely
manipulated, in a way that each client would ineluctably and unknowingly lose money,
as the existence of the trades was fabricated. Instead, the Company’s staff and its
accomplices simply pocketed the money, using it to purchase various luxurious, nonessential
items.
7. The Company prohibited my ability to withdraw my funds.
8. The Company was guaranteeing unrealistic returns/yields.
9. The Company furnished me with bonuses - which are not allowed to be given.
10. The Company was trading on my behalf (use of remote control of my computer).
11. My money was not held in a segregated account.
12. The Company did not advertise/disclose/was not transparent regarding the statistical data
representing the percentage of total client losses at the company.
13. The Company did not mention the commission and overnight swaps.
14. The Company did not read me the risk disclosure prior to my deposit(s).
15. The Company used high pressure tactics and outbursts, which took a severe toll on my
health.
Armed with my personal details, the Company’s staff seduced me, until I transferred all my
savings to them. They utilized their knowledge of my cultural context, which stressed square and
honorable business dealings along with honesty, to maliciously take advantage of my trusting
nature.
Please take notice that my funds were transferred through means of coercion and under false
pretenses.
Attached, please find supportive statements, screenshots and further evidence.
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EXPOSING YOUR ORGANIZATION’S MISCONDUCT
I hereby allege that your organization has breached the duty of care that is owed by a financial
institution to its clients in circumstances where there are reasonable grounds to suspect that the
sole purpose of a payment instruction is to defraud the client. Under such circumstances, you are
obliged to refrain from executing the payment instruction until you have been able to conclude that
there is a legitimate basis for the instruction. “Once the duty is engaged, the duty takes priority over
the usual obligation of a financial institution to execute customer instructions promptly.” The duty in
question is often referred to as the Quincecare duty, well established in the case of Barclays Bank
plc v Quincecare Ltd. (the “Quince Care duty”).
The Quincecare duty requires financial institutions to take reasonable care and skill when
executing the instructions of a client. It is recognized as authoritative by leading academic texts [2].
The duty arises in cases where it can be argued that an ordinary prudent staff member of a financial
institution would have “a reasonable basis for suspicion that a particular payment instruction would
result in the misappropriation of the funds of the client."
When the duty does arise, it can be discharged simply by “refraining from executing the instruction
unless and until such time as the financial institution is able to establish that the instruction relates to
a lawful obligation.” The financial institution should seek further information and/or
documentation from the client in order to help establish this.
Based on the above, and after conducting a comprehensive review of our
communication/interactions, it has become glaringly obvious to me that at best, no adequate
information and/or documentation were sought by your organization, and at worst, no
appropriate safeguards were implemented.
If a financial institution executed a customer’s order to transfer money knowing it to be “dishonestly
given, shutting its eyes to the obvious fact of the dishonesty or acting recklessly in failing to make
such inquiries as an honest and reasonable individual would make," it would be in breach of its duty
of care, even if the payment instruction is made in accordance with the terms of the mandate and
the bank is liable for negligence resulting in damages.
2 (E.P. Ellinger; E. Lomnicka; C. Hare (2011). Ellinger's Modern Banking Law (5th ed.). Oxford University
Press. p. 154. ISBN 9780199232093.)
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Compliance departments should ensure that staff members understand the legal requirements and
that where there are suspicions, these suspicions must be communicated to all relevant personnel
whilst being investigated.
For the avoidance of doubt, reasonable grounds should not necessarily be interpreted as proof. On
the basis of various signs, you should have assumed that something suspicious was going
on and suspended transactions until reasonable enquiries could be made to verify that the
transactions were properly executed. In other words, I am a victim of your negligence for
facilitating the misappropriation of funds, and doing little to safeguard public financial interests. Any
reasonable banker would have realized that there were many obvious, even glaring, signs that I am
a fraud victim. (Singularis Holdings Limited (in liquidation) v Daiwa Capital Markets Europe Limited
[2019] UKSC 50) [3].
A financial institution would never be as reckless with its own assets as has been the case with my
assets, and if you had treated my assets as though they were your own, this would not have been
made possible. The debits made from my account should be reversed as a result of your failure to
take proactive measures to protect it, just as you would do if your own assets were in a similar state
of peril. It is also libelous/defamatory to make false statements about an individual that adversely
affects their credit rating.
When discussing the responsibilities that a bank might incur, it is crucial not to forget the fact that a
legitimate complaint by, or cause of action on the part of a client might generate/give rise to further
statutory cause of action and/or additional liabilities beholden by a financial institution to the relevant
regulatory authority. Obligations/duties beholden by a bank to a regulator are distinct from those
beholden to the customer. Moreover, you may be liable to more than one regulator.
More often than not, such legal duties spring from the very facts that gave rise to the liabilities to
your clients in the first place. Similarly, to the foregoing, I may also have a cause of action against
you for breach of mandate as you have negligently transferred my funds without proper enquiry.
Instead, you should have been working hard with Artificial Intelligence [4] / Big data technologies to
discover automated and effective ways not only to detect fraud but also to prevent it. Furthermore,
the tremendous amount of data you possess is by no means self-evident let alone to be overlooked,
hence by not utilizing it systematically and effectively to pinpoint irregular and suspicious activities
3 Singularis Holdings Limited (in liquidation) v Daiwa Capital Markets Europe Limited [2019] UKSC 50
4 “Using AI in the fight against fraud” (23 October 2019)
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you are misleading your customers, who have taken the leap of faith and placed trust and
confidence in your honesty, authority, and competence. A plausible assumption here would be that
the pattern of the above-mentioned transactions was sufficiently suspicious that it should have been
flagged and blocked by your staff, even if you have never encountered similar situations.
Practically speaking, effective steps to prevent bad actors from taking advantage of future victims
(or at least to minimize this possibility) are abundant:
? The use of automated and human review of irregular or suspicious transactions and traffic
patterns to identify financial crimes in general and common fraudulent schemes;
? Human review of complaints from the public and law enforcement in connection with rapidlygrowing,
recurring, and popular fraudulent practices as well as suspicious merchants,
including creating special channels for such complaints;
? Cross-checking warnings, notices, cautionary announcements, and reports concerning
beneficiaries, merchants, associations, or countries often suspected to be associated with
cyber-fraud from governments, central banks, regulatory bodies, law enforcement agencies,
and watchdogs.
? Artificial Intelligence and Cyber-power: embrace and leverage Machine Learning
technologies and Big Data Analytics to identify fraudulent, or potentially fraudulent
merchants by scrutinizing publications and reports about such merchants in the digital
sphere (e.g., on forums and social media)
? Establishing contact with the recipient institution of fraud victims: any holds in place on new
related activities, or similar blockers that prevent rapid rebranding of related/similar
merchants.
It would also be wise to consider implementing additional safeguards where the movement of large
sums of monies are concerned. For instance, you could specify additional prerequisites for
executing the transfer of large sums such as: (1) requiring multiple levels of approval; (2) requesting
more information concerning the intended purpose of the transfers and cross-checking for similar
patterns of transfer; and (3) checking on a client's capacity to make such transfers. While such
measures entail additional compliance costs, it would be sensible for you to err on the side of
caution.
FURTHER POINTS FOR CONSIDERATION
What is egregious is that there is absolutely no information and no regulatory information about
them online. Their website is no longer active as though they never existed, which is evidence of an
unregulated scam.
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I have a reason to believe that Gemini, although being a regulated and licensed company (to the
best of my knowledge) fails to identify suspicious financial activity and that their client might be a
potential victim of fraud.
CONCLUSION
If a full refund is not administered within 14 days from the date of this letter, in addition to a
refund amount, a request for reimbursement of attorney’s fees, filing fees, and any further
costs associated with obtaining the refund amount may be pursued.
In the event of non-compliance with the demand mentioned above, your organization, knowingly or
unknowingly, manifestly jeopardizes its business through its failure to prevent fraud: those who are
not direct accomplices to the commission of a crime but rather are permissive of the criminal
behavior after the crime has been committed can also be charged with a crime. Being permissive,
even if not present when the crime was committed, by not reporting the crime to the authorities and
not trying to do your part in remedying the situation, makes you an accessory to the crime. In
accordance with moral law, if you unknowingly assist criminal behavior and remain impartial after
discovering such, you are seen as obstructing justice.
This letter does not realize the full extent of my claims, rights, and remedies against you or any of
your affiliates, parents and subsidiary corporations, including, without limitation, your representative
managing partners, officers, directors, shareholders, employees, agents, attorneys, assigns,
successors, servants, insurers, and representatives, in any matter whatsoever, including the present
context of this letter, as that will not detract from my rights and claims in any form or manner
whatsoever, or constitute any concessions on my behalf against you and against others.
Timothy J Keller