Pretext, Privacy & Private Investigators – Part 2
Debt Collection Skip Tracing & Recovery of Assets
Private detectives use pretext and databases to find witnesses, parties to litigation and missing debtors. Banks, trust companies, lawyers and insurance companies hire private investigators to collect debts, serve documents and to aid in executing judgments. Recipients who have child support orders use PIs to find where would be payers live and work. Collection agencies also have in-house skip tracers to find debtors who owe money on behalf of banks and other entities. Pretext is almost mandatory in this type of investigation. A PI might call a home of a debtor in attempts to obtain an alternative home number or a work number. The PI might pose over the phone as a sale person or attempt to conduct some form of a question and answer survey. This is done to obtain personal information so creditors and other parties can complete there litigation process. Without pretext in this area of investigation finding individuals would be non existent.
Private investigators are retained on behalf of retail head offices to pose as a customer at retail outlets. The private investigator goes into the retail outlet and purchases two items of clothing with the exact same price. The private investigator then watches the employee to see if both items are accurately processed through the cash register. This could also involve wearing a hidden video camera or even installing a hidden video camera in a discreet place in a retail outlet.
A similar form of deception is used owners of bar, and night clubs who hire PIs to to monitor their bar tenders to see if all drink orders are being purchased through the cash register. A PI will pose as a customer and continually watch the transactions processes or not processed the cash register.
While the insurance community continues to be the biggest client to Private investigators they are in fact loosing the battle of insurance fraud. This loosing battle is one of the main reason consumers continue to find their monthly premiums increasing at alarming rates every year. While PIs are involved in all aspect of insurance investigation they are most commonly involved in doing surveillance video taping on would be cheaters. Insurance claimant’s who are represented by a lawyers are already well protected under other legislation that would prohibit any PI (or any third party for that matter) of contacting the claimant at home or at work without their lawyer present. Pretext and or trickery in insurance claim investigation is almost non existent. However video taping cheating claimants continues to be a sensitive and controversial topic. Privacy advocates continue to fight that a residence should include the front and backyards as it has been legislated in many parts of the world. This is known as “the residence or any part there of” issue. If changed a private investigator sitting on surveillance watching a cheating claimant’s home will be refrained from video taping any movement if the claimant is in his backyard or front yard for example. So if while on surveillance a PI observed a claimant who was faking an injury jumping on a trampoline with his children on the front lawn of his home the video tape will be in admissible. The PI could find himself in charged, fined or imprisoned jail for taking the video no matter how obvious. This would also make it difficult for PI’s who investigate claimants who my be working from home. A claimant for example who is fixing cars in his driveway for cash moving and bending and not reporting the income. All of these observations at a household will soon be illegal and inadmissible. It’s believed that the legislation change will be right around the corner. While PIs are allowed to follow and video tape claimants who are suspected of faking their injuries, there has been a case before that went before Privacy Commissioner where an employer suspected an employee of faking an injury and being unlawfully on benefits. When the PI confirmed the employee was faking benefits by way of video taping the employee complained it was a violation of privacy. While the evidence held and the PI was not reprimanded it was recommend at the hearing that surveillance only be conducted “as a last resort”. It should only be contemplated if ll other avenues of collecting personal information have been exhausted. The decision to undertake video surveillance should be made at a very senior level of the organization; and Any seasoned insurance investigator would agree with the recommendations but most would argue what personal information is there that can be obtained by when the doors to obtain personal information are closing. How do we observe movements if we can’t follow?
Missing Persons & Children
Private investigators have been instrumental in finding our missing children. Many child abduction cases involve the parent who does not have formal custody kidnapping the child. Child abduction cases involve finding the parent who has abducted the hild. This involves a great deal of pretext where a Private investigator will concentrate on finding other family members who under the right pretext might give up the new home phone number, cell phone or work phone number of the parent who abducted the child. The PI might call up family members saying e is a potential employer checking references, sending a parcel etc. Many are unaware that a great deal of tracking down our missing children is conducted via phone inquiry and via lawful pretext. It is expect that a parent who has abducted child will not have his or her name in any published phone book or anything that might be a part of public record. It will be other family members and friends what will lead to the address of the parent who has abducted the child.
Private investigators are hired by industry to work undercover. They pose as one of the employees and report to management on internal and theft, drugs, just to name a few. Questions about pretext and deception would arise as to if a PI is working undercover if he or she is in fact violating privacy or pretext laws.
Private investigators have been investigating the underground economy from the very beginning. People work in the underground economy for many reasons, to evade taxes, creditors, child support, or mostly commonly are simply involved in crime and being paid in cash. Virtually the only way to show that a person wakes up every morning and goes to work at a job for cash is to have them followed. The controversy of surveillance and video taping continues. The PI might alternatively make pretext inquiries with the suspect or family members to obtain a work number where the person might be working. There are number of lawful pretexts that can be conducted by PIs to try to bring out a work number with family, friends or relatives.
The are a number of PI agencies that specialize in vehicle theft investigations on behalf of banks, finance companies and private bailiffs. PIs continue to be instrumental in not only finding stolen vehicles but identifying theft rings that usually involve organized crime. Many insurance companies have in house theft investigators that are working in the private sector most of them are ex-police officers.
The Back Fire of Privacy Legislation
If you’re a law abiding citizen, paying your debts and taxes this is a great piece of legislation. But the backfire of the legislation is protecting our criminals and debtors. Private investigators and the private sector require access to government services and private services that hold confidential information on people and companies. Important tools like access to driver’s record information, access to the computerized land registrar system, the use of the credit bureau in judgment debtor and collection situations just to name a few. But the legislation continues to backfire. The public is in panic over crimes like impersonation, bank fraud, mortgage fraud and insurance fraud all things we investigate every single day. We are the answer to this problem not the cause. All of the tools that hold the data we need to investigate are slowly cutting us off or will very likely cut us off over time.
In Provinces like Quebec and Alberta, PI’s have no access to government motor vehicle information. They can’t even run a license plate to follow an insurance claimant or a driver’s record to see previous driving infractions. How are we expected to do insurance claim investigation if we have no access to vehicle or driver information? How is a PI supposed to help a person enforce a judgment or child support order when for the most part credit bureaus make it virtually impossible for PIs to have access even if they have a certified copy of a Judgment or Support Order? The credit bureaus are already under scrutiny by the media because of impersonation and credit card fraud concerns.
Mortgage Fraud is out of control rest assure it will be a matter of time before the computerized land registry system will panic and closed to the private sector. It will only be lawyers and real estate agents who will be allowed access. How do we then conduct mortgage fraud investigations when we can’t even do a title search on suspects that might own other properties?
The newest growing scam which is similar to mortgage fraud is where fraudsters register a loan on your vehicle and skip out with the money. Someone who owns a luxury car for example wakes up one morning and finds their vehicle has be seized because a fraudster registered a loan against the vehicle and absconded with the money. The bank bailiff then seizes the vehicle right in your driveway. The insurance companies are going crazy with this new scam and many don’t even understand how it the scam works. All they know is that claims are coming out of the woodwork. While the police are involved in investigating these crimes so is the private sector. In order to investigate this crime we need continued access to both the Driver Record information and the Personal Property Security Registration system. PI’s in Ontario have been fortunate to have continued access driver vehicle information but this crime is Canada wide problem and we need access in every Province not just a few. The private sector is convinced these bodies of information will also panic and again cut off the private sector. We are the ones that investigate these crimes on behalf of the banks insurance companies and their legal counsel. There are not enough police in the world to combat this problem. The information bodies continue to panic because of privacy concerns and then close the door on the very industry that help to resolve to the problem.
Legal Community Already In Trouble
The legal is community is in big trouble they just haven’t realized it yet. Sooner or later would be Plaintiffs and the general public are going to realize that when they sue in court attempting to recover their losses even if they win their case if defendant simply refuses to pay there is every likelihood their court ordered judgment or monetary award could be nothing more then a worthless piece of paper. Millions of people have judgments, court orders, child support orders or even criminal compensation wards that are completely worthless and may never be collected. The public continues to be under the illusion that when they win these awards that if the defendant (now called the debtor) refuses to pay that the person will be thrown in jail. It doesn’t work that way. You’re essentially on your own trying to collect it. While costly lawyers can sometimes help trying to collect on these awards it is without any doubt an “investigative mission” to discover assets not a legal one. If you’re trying to enforce your award you’re on your own trying to find a bank account, employment, or non leased/financed vehicle so you can collect your money. All the doors to find this type of information are closing fast and this includes law firms.
How is anyone expected to find not only the bank account on a person but the actual branch so a garnishment can be issued? Even then there is virtually no way of discovering if there is money in the account before you spend the money on legals to complete the garnishment. Sometimes a credit bureau search can give leads but this door is already closed on some agencies. Don’t look to the banks to give up confidential information on their customers. The banks continue to have tightened their reigns because of fraud concerns. Depending on the Province where you live you might be able to do a vehicle search to find vehicles in a person’s name. A lien search also has to be conducted to make sure there are no liens on the vehicle so it can be seized. It’s just around the corner that access to these doors will be closed if not completely.
If Private investigators are not allowed to use trickery or pretext to obtain personal information such as a home address or employment how do we find employment on our debtors? A credit bureau search might help if access is available. What if the person is a participant in the underground economy working at a job for cash? The only way this can be found out is via a pretext call (trying to get a work number from someone at the household) or to follow the person into work at expensive surveillance rates.
There is no other way in the world to know where a person is working under the table then to follow them. If PI’s are allowed to use expensive surveillance to follow debtors into to work this is costly and will create more controversial privacy concerns. Lawyers will argue in this article that they can perform expensive judgment debtor examinations where debtors are compelled to come into an examination and reveal their assets under oath. If the debtor fails to show up the debtor can be committed to jail. Very often debtors who have been ordered into examinations do nothing more then lie and cover their tracks either before or after the examination.
While a debtor can be committed to jail for not attending the examination the public needs to know that the debtor is in fact being committed to jail for failing to comply with the order to attend. It has nothing to do with not paying. The process which is known as Warrant of Committal is not a collection process it’s a punishment process for not showing up to the examination when ordered. Our monetary awards in our court system continue to become worthless pieces of paper. Recipients continue to feel the pain trying to find their defendant/debtors and collect on their money. There is simply one road block after the other being unable investigate where the assets are. The televised O.J. Simpson case is a classic example. These civil plaintiffs who have won their judgment against Simpson continue to chase him with one road block after the next.
For every door that is closed the must be an opening to obtain information via lawful means. Policies have to be in place that allow for sensitive data to be released for people who have judgments, payment orders or third parties that are working under the direction of a lawyer or insurance company. For example if someone has a judgment or has a support order that individual should be able to retain a collection agency, PI Firm, lawyer or a Forensic Accountant to be able to conduct a credit search on the debtor that might give leads for bank accounts and employment. The credit bureaus cold require That they must be provided with a certified copy of the judgment or the order before the search is conducted. If a PI has retainer letter from an insurance company or a lawyer they should be able to do a motor vehicle search or a driver’s record search in any Province without restriction. How do they expect a single mother of three starving for child support to find the bank account bank branch on the father of her children that just refuses to pay? Would we ever see the day that a judgment or a support order could just be served at the head office of a major bank? Would bank head offices when provided with a garnishment search our their branches for accounts and register the garnishment for us? The banks would appose any attempt by parliament to implement such a strategy. What are the options then? Does the information system go underground? Do we move to a police state. Would the example of our mother of three have befriend a bank teller her information illegally for her? The doors are closing rapidly all in the name of privacy. With no consideration or exceptions for those who fight fraud, collect our debts, our child support or catch our criminals. Who will find are missing birth parents are family members? How we investigate lies, infidelity? Who will we find our witnesses, missing children, birth parents are missing vehicles and stolen property? Who will be allowed to investigate for defense and the wrongfully convicted? The continued and growing restrictions will affect every person either now or in the future right across the globe.
What Can We Expect
Banks will increase insurance rates going into loans, knowing perfectly well there is a poor likelihood collection if their customer defaults or defrauds them. Underwriters of insurance policies and their actuaries will take into account the investigative restrictions when they write insurance policies. Insurance premiums will increase out of control to the point that only the wealthy will be able to afford insurance. All aspects of insurance could be affected not just popular automotive and injury policies. With the increase premiums we can expect to find more individuals without insurance once again making it more difficult for victims to collect their losses either via insurance or through the courts. Defense Lawyers and accused persons who retain PI’s will be restricted to what PI’s can and can’t do in aiding a defense Investigation. Defense lawyers will maintain their accused clients are in a disadvantage and will ask judges to throw matters out and set their clients free. Certainly with the new pretext legislation we can expect that Crown Attorneys will see Defense lawyers file motion after motion requesting the courts set their clients free as a result of a pretext being used. Are we to believe that public law enforcement by itself will be able to tackle the civil unrest after the have the doors are closed on the private sector? Police forces and their specialized crime units are statistically backlogged out of control.
While privacy advocates continue to applaud the Privacy Protection legislation and will no doubt support pretext legislation. But will they will support the legislation when they themselves have become personally victimized by crime, wrongfully convicted, or discover the impossibilities of trying to collect a debt, judgments or child support order.
Fraud is the worst it has been in the history of man kind. With computerization, the internet, and the sophistication of scanners and copying machines the problems will remain out of control at alarming rates. Fighting crime can not be resolved by public law enforcement alone. Should every security guard in our malls and buildings be replaced by police ? There is no better time then right now to be a criminal and in particular committing the crime of fraud. Would you rather have ten thousand or a hundred thousand fighting the war on crime? The privacy of criminals, debtors and those who are participants in the underground economy who refuse to pay income tax are now protected under federal acts. The private sector that would seek to catch, collect or prosecute these people will continue to be legislated having their tools removed from them year after year with no exceptions. While we should all be supportive of privacy legislation we must all be aware of the backfire. There has to be legislated exceptions to give victims rights to by pass the protection of personal data when it comes to the examples given.
Many are intimidated by the work conducted by PIs only up until they need the help of one or anyone in the private sector for that matter. Once you feel the pain of being a victim of crime, wrongful prosecution, or have a judgment, child support order or a debt that can’t be collected you will feel the frustrations of the private sector that would serve to help you but can’t. Private investigators, security guards, forensic accountants, insurance adjusters, and employees of in house bank fraud departments may find themselves in a jail long before their targets of investigation. Their punishment for their methods may be more than the offences they were investigating.
About the Author
Kevin Bousquet has been a licensed PI since 1986. He is a graduate in Law Enforcement, The Law Clerk Admin Program and a Certified Fraud Examiner with the Association of Certified Fraud Examiners. He is president of The Corpa Group Inc a licensed Private Investigation agency established in 1991 working on behalf of major corporations, insurance companies and their legal counsel.
Kevin Bousquet can be seen giving lectures advocating on ways to combat fraud and changes to Adoption in Ontario with the Adoption Counsel of Ontario. Kevin Bousquet has his own TV show “Undercover With Kevin Bousquet” where shows depict real life examples of fraud, victimization, and the work conducted by the Private Sector. His show can be seen satellite, persona cable or streamed on the Internet at www.resourceschannel.com/programs-undercover.html