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Financial Elder Abuse

Stock Broker & Financial Planner Fraud | Life Insurance Denial of Benefits | Real Estate Fraud | Car, Boat and RV dealership Fraud | FDCPA violations and other Financial Abuses (California and Arizona).

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With a tough economy and a growing senior base, fraud and bad faith against elders is on the rise.  We fight people who take advantage of elders and seek to hold them accountable.  We fighter elder abuse in all forms, from physical abuse and neglect, to predatory financial acts involving lawyers, real estate brokers, financial planners, life insurance agents, stock advisors, auto dealerships and more.  If there is abuse in the air, we will find it and root it out and seek the full range of money damages in your case.

CLICK HERE TO JUMP TO BLOG ON ARIZONA ELDER ABUSE LAW

Overview – California Financial Elder Abuse

California has one of the best elder protection statutes of all the United States (an elder is someone over the age of 65 at the time of entering into the financial transaction).  The law is embodied in the California Welfare & Institutions code section 15610.30. As the California court put it in Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734-35 [112 Cal.Rptr.3d 439, 445-46]:

“Since 1982, the Legislature has enacted numerous measures to prevent the abuse of elders. (See ARA Living Centers–Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1559–1560, 23 Cal.Rptr.2d 224; Zimmer v. Nawabi (E.D.Cal.2008) 566 F.Supp.2d 1025, 1033–1034.) Generally, “the Legislature has proceeded carefully and diligently in its effort to curb the worst practices against our elders.” (Balisok, Elder Abuse Litigation (The Rutter Group 2008) ¶ 1:22, p. 1–3.).  Pertinent here are section 15610.30, which defines “financial abuse’ of an elder,” and section 15657.5, which identifies remedies for financial abuse. As effective during the events alleged in appellant’s complaints (2006–2008), section 15610.30 provided:

Legal definitions

(a) ‘Financial abuse’ of an elder … occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, or retains real or personal property of an elder … to a wrongful use or with intent to defraud, or both;
(2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder … to a wrongful use or with intent to defraud, or both;
(b) A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.” (this can include FDCPA debt collection abuses aimed at elders).
Furthermore, during the period in question, section 15657.5 provided that in proven instances of financial abuse, a court could properly award attorney’s fees, costs, and damages in excess of enumerated statutory limits, “in addition to all other remedies otherwise provided by law.”  This means the damages are “cumulative.”

This section makes California’s financial elder abuse statute a powerful weapon to fight fraud in business and real estate transactions, and consumer transactions.

CLICK HERE TO LERARN MORE ABOUT “ENHANCED REMEDIES” UNDER THE WELFARE & INSTITUTIONS CODE.

What constitutes “bad faith” under California financial elder abuse statutes?

This is not an easy question, but it involves taking the money or property of an elder with knowledge of the elder’s rights:

“A person or entity shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative. For purposes of this section, a person or entity should have known of a right specified in paragraph (1) if, on the basis of the information received by the person or entity or the person or entity’s authorized third party, or both, it is obvious to a reasonable person that the elder or dependent adult has a right specified in paragraph (1).”  See Wood v. Jamison (2008) 167 Cal.App.4th 156, 164 [83 Cal.Rptr.3d 877, 884]

What types of financial elder abuse cases does our law firm take?

Our firm has been a leader in protecting and defending the rights of elders in their financial affairs and personal injuries to seniors and we handle the following types of “financial elder abuse” and serious injury cases (keep in mind, the gist of California elder abuse law is that it prohibits taking money or property of an elder in “bad faith” and personal injury laws are analyzed under a neglect or intentional injury standard):

  • Abuse of power of attorney
  • Bad faith Life insurance denial of benefits (two year contestability cases)
  • Nursing home abuse
  • Caregiver neglect and abuse
  • Abuse of trust (constructive fraud)
  • Undue influence
  • Duress
  • Telemarketing fraud (ex. timeshares)
  • Attorney fee gouging and over-billing cases
  • Real estate financial elder abuse by brokers, mortgage officers
  • Abusive tactics by car dealerships (ex payment packing, selling warranties without knowledge)
  • Abuse credit practices by banks and lenders (ex. reverse mortgage fraud)
  • Predatory lending (socking a senior away in a “pick-a-pay” or “option arm loan”)
  • Unconscionable loans
  • Predatory loan servicing (overcharging fees which can result in FDCPA violations)
  • Stock broker fraud (unsound investments, excessive trading)
  • Financial planner abuses
  • Fraud and embezzlement by accountants (CPA theft of funds)
  • Abuse of elder by family and relatives (signing grant deeds on deathbed for example)
  • Theft of property of elder (stealing money from drawers)
  • Internet fraud and investment scams
  • Identity theft (using credit cards without authorization)
  • Car, boat and RV dealership fraud
  • Estate planning fraud by law firms and attorneys
  • Arizona financial exploitation of elders

These are the main types of cases we will consider taking.  Financial elder abuse victims can seek recovery of costs and attorney fees and in some cases punitive damages may be available. In many cases we can take all or part of your case on a contingency fee basis.

Shifting the burden of proof in financial elder abuse cases

In some cases (especially where “undue influence” can be shown), an elder can shift the burden of proof onto the wrongdoer which (which helps out when the elder has a poor memory or is suffering other serious health conditions) which can seriously help out in seeking to prevail on the merits of the case.  To learn more about BURDEN OF PROOF IN CIVIL LAWSUITS click on the link,

In Sparks v. Sparks (1950) 101 Cal.App.2d 129, 136 [225 P.2d 238, 242] the California appellate court held:

“Persons standing in a confidential relation toward others will not be permitted to retain benefits which the others have conferred upon them unless they can show to the satisfaction of the court that the person by whom the benefits have been conferred were independently advised with reference to the transaction. See Burrows v. Burrows, 136 Cal.App. 323, 329, 28 P.2d 1072.
The Sparks court continued:
“No one who holds a confidential relation toward another will be permitted to take advantage of that relation in favor of himself or deal with the other upon terms of his own making. In every such transaction the law will presume that the person who held an influence over the other exercised it unduly to his own advantage. See Khoury v. Barham, 85 Cal.App.2d 202, 212, 192 P.2d 823.”
This means it is important to take a close look at the facts in every financial elder abuse case to see if there was a confidential position of trust by someone in a close relation to the elder (for example a life insurance agent), or was someone such as a trustee or another personal who owed the elder a fiduciary duty (such as a real estate agent, attorney, or other professional).

Pre-judgement “writ of attachment” process

In other financial abuse (and possibly in nursing home or caregiver neglect cases), you may be entitled to seek a pre-judgment “writ of attachment” to stop the wrongdoer from transferring property owed to you (i.e. from spending all the money, or transferring property owed to the elder.  A “protective order” application is also on the list of things to look at.  What a Plaintiff will need to consider filing is an:

EX PARTE APPLICATION FOR WRIT OF ATTACHMENT, OR IN THE ALTERNATIVE, A TEMPORARY PROTECTIVE ORDER. See C.C.P. 15657.01, C.C.P. 15657.07, 485.210, and 485.220).

Bonus Materials:  Click here to watch our real estate law video dealing with the Writ of Attachment Process in California Financial Elder Abuse Cases.

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Bonus materials:  Click on the video above to watch our video. Subscribe to our real estate law youtube channel by clicking on the RED “V” in the corner.

Financial Elder Abuse Resources:

1.  Great article from the Los Angeles Bar Association regarding litigating financial elder abuse claims

2.  Great Financial Elder Abuse Video

3.  Report Financial Elder Abuse in California

4.  Blog on Arizona Elder Abuse laws and cases

5. California Department of Justice – Citizens guide to detecting and reporting elder abuse.

Attorney Steve’s Financial Elder Abuse Library

1.  Overview of financial elder abuse in real estate cases

2.  Financial elder abuse in the foreclosure and lending process

Contact a Financial Elder Abuse Attorney

Call our California elder abuse legal hotline at (877) 276-5084 for immediate assistance.  We represent elder clients in both California and Arizona and in both state and federal courts as may be required.  Contingency fees are available in most cases of serious personal injuries and in those cases of financial elder abuse we do not recover in a contingency fee case until we recover money on your behalf.  We are here to fight for you.  Please fill out the form to have one of our elder abuse lawyers call you.  Leave your phone number and the best time and date to call.

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