..as reported in onWallStreet Magazine
Twice-Bitten Retiree Takes Wells Fargo To Task
By Larry Barrett
Before she received a sizeable divorce settlement in 2007, Peggy Boyles was a housewife for 25 years and had never opened any type of investment account on her own.
The fact that this $843,272 represented her entire net worth and that she was unemployed didn’t stop the Wachovia Investments financial advisor with whom she entrusted this windfall from immediately investing it in seven different speculative investments — including, among others, mutual funds in Latin America and China and “ultra bull” leveraged exchange traded funds — according to her attorney, Mark Tepper.
Two weeks after making these high-risk investments, the Wachovia broker, according to Tepper, unloaded them, leaving Boyles’ IRA more than $300,000 lighter in the process.
After transferring her IRA to another broker-dealer in March 2008, Boyles two months later was persuaded by the Wachovia — now part of Wells Fargo Advisors — broker to give him a second chance to “do a better job” the second time around.
Boyles decided to give him another shot, only to be disappointed once again as her losses continued to mount, trimming another $128,000 from her nest egg.
Now, Boyles and her attorney are taking Wells Fargo to arbitration with FINRA, hoping to recover the all her losses plus attorney fees and interest if a three-personal panel finds, as it has in previous arbitration cases, that the advisor mismarked Boyles’ investment objectives and risk tolerance and that the firm breached its duty to adequately supervise the advisor and detect or prevent him from making “excessive” and unsuitable investments.
“Like most people who are victims of these types of things, she was a good person who trusted and expected to be treated well and professionally,” Tupper said. “They find a professional and have trust in the professional. As long as that person determines what the customer’s financial situation and needs are and accurately records their risk tolerance, it usually works out.”
“It’s only when those things break down, as they did in this case, that things go wrong,” he added.
Wells Fargo representatives were not immediately available to comment on Boyles statement of claim, a copy of which it will receive this week and, unless a settlement agreement is reached, will be presented to a regional FINRA panel in Florida sometime in the next year.
According to Boyles’ statement of claim, the Wachovia rep originally marked her annual income as $60,000 — even though she was an unemployed recent divorcee — and listed her net worth as “$1.2 million” despite the fact that her only asset was the divorce settlement check for $843,272.
Boyles told the advisor, according to the claim, that she was 60 years old, had limited job skills, no investment experience and that the settlement check had to last her for the rest of her life.
Tepper chalked up the deliberate mismarking of Boyles’ information, which directly impacts the types of investments and risks her broker was then able to consider for investment portfolio, is just the latest example of how brokers are pressured to take unnecessary and unwelcome risks to protect their jobs.
“There’s a lot of pressure on these guys to produce, whether it’s pressure from their branch manager or, in some cases, themselves,” Tepper said. “They think they’re smarter than the market and eventually when the risk they’re taking is realized, the game is up.”
It’s this pressure, combined with the collapse of several prominent banks, brokerage firms and ponzi schemes, that led Congress to pass the Dodd-Frank Wall Street Reform Act and, in turn, the early stages of creating a uniform fiduciary standard for brokers, advisors and financial services firms to ensure investors are properly protected.
In Boyles’ case, her broker allegedly generated an annual turnover rate of more than 17 times the average monthly equity in her IRA.
In January, a FINRA panel awarded another Tepper client full recovery of all losses, interest and attorney fees after another Wachovia Securities advisor allegedly mismanaged her account under similar circumstances.
According to Tepper, that client, also a retiree living in Florida, has received her compensation and said she has now placed most of it in a money market account rather than return it to the investment machine.
Pre-dispute arbitration with FINRA is a condition of most, if not all, customer agreements with broker-dealers. The size of the arbitration panel is determined by the
amount of the claim. Any claims in excess of $100,000 are heard by a three-person panel that can award, modify or vacate an arbitration award.
“By opening a customer agreement, any dispute that should arise from the business of a broker-dealer must be submitted to FINRA arbitration,” Tepper said. “If we went to court, it would be thrown out immediately.”
Tepper, who before going into private practice served as chief trial counsel at the Bureau of Investor Protection and Securities, has represented customers in claims against a number of major and regional brokerage firms including Merrill Lynch, Morgan Stanley and UBS and expects he will represent many more in the future.
“I think that regardless of the profession we’re talking about, approximately 20% is dedicated, customer-oriented and tries to do their best for their customer,” he said. “Another 60% percent is the mediocre middle.”
“It’s the bottom 20% who can really do serious damage and that’s especially true of financial advisors,” he added.