The scammers and fraudsters are alive and active. The Boards of Realtors, Title Companies, Bar Associations and local and national news media have all written warnings. Frequently. I have even written about it (see my blog HERE). Yet, some people miss the warning signs and get caught.
Unfortunately, I am in the middle of one such situation – the other side. I represent the seller of the assets of a small business. We closed 2 months ago. As per the contract, $50,000 of the seller’s proceeds were held in escrow at closing by the buyer’s attorney to give the buyer time to determine whether any undisclosed liabilities pertaining the assets popped up. The escrow was to last for 60 days. 10 days ago, on the 61st day, on behalf of my client, the seller, I e-mailed the escrow agent and requested that the escrow agent, buyer’s attorney, release the money to the seller. I directed the escrow agent to wire the funds to the same account as used for closing pursuant to the same wire instructions. The escrow agent responded shortly thereafter via e-mail that she would do so but that she would need both the buyer and seller to execute a release and that she would prepare and send one to me that afternoon. The next day, Friday, the release was signed by both the buyer and seller. The escrow agent indicated that she would process the wire.
However, I learned 5 days later that my client never received the wire. When the broker and I inquired, the escrow agent advised that the seller had sent a confirming e-mail to the escrow agent acknowledging receipt of the wire on the Monday following. The client denied sending the e-mail. The escrow agent produced the e-mail and it was clear that the e-mail had not come from my client. The e-mail account had been spoofed. We then asked the escrow agent where she had sent the wire. It turned out that 90 minutes after my initial e-mail to the escrow agent, the escrow agent had received a second e-mail purporting to come from me, forwarding an e-mail from my client which attached new wire instructions. These wire instructions were to a 3rd party bank account in New Jersey. The e-mail address from me was not my address, though it looked similar to mine (used my domain name in the sender field but had a mail.com domain name). The client’s e-mail address was similarly spoofed. The grammar and spelling in my e-mail and the client’s e-mail was poor and inconsistent with all prior correspondence with the escrow agent. And, the client’s purported e-mail instructions to me were time stamped 2 hours prior to my initial e-mail to the escrow agent.
The timing of the contradictory wire instructions should have been a big enough red flag to the escrow agent for her to call me to confirm whether I had in fact sent those instructions. But, the e-mail addresses, the grammar and spelling, the time stamps on the e-mails, the 3rd party to receive the wire all should have given pause to the escrow agent. Nevertheless, she wired the money to the wrong account. She is a victim of the scam and is now responsible for making my client, the seller, whole.
This is a classic example of a common e-mail/wire scam. It could have been easily avoided with simple attention to detail and one phone call to verify the new wire instructions. Best practice requires those who are responsible for wiring money to verify ALL wire instructions by telephone follow up, not just revised wire instructions.
At this point, the escrow agent, an attorney, will be responsible for making her trust account whole. While her malpractice policy may cover the shortfall, settlement might take some time. Though this is clearly a theft of funds, it remains to be seen whether law enforcement will be able to track the perpetrator or whether law enforcement has an interest in the case. Though $50,000 is a lot of money to the victim, wire fraud cases don’t generally get the attention of federal law enforcement until there are a lot more zeros involved.
Hopefully, a lesson has been learned. Verify all wire instructions by confirming on that antiquated device – the telephone!