Financial Elder Abuse – Sample Mediation Brief!
Persons over 65 in the state of California are a “protected class.” This means, when you are doing business with an “elder” you need to make sure you are engaging in a fair transaction. This is true whether you are a Real estate broker selling commercial real estate or a software company selling a software product to an elderly business owner. You have to deal fairly and honestly at all stages in the transaction. If not, elder abuse claims could be triggered, and the law favors the elder and a “shifting of the burden of proof” is possible as is the powerful “pre-judgment writ of attachment.” This blog provides an overview of some of the language of the California case law dealing with breach of fiduciary duty and Financial elder abuse. If you need a litigation attorney for a business, real estate or intellectual property case (mediation, arbitration or litigation), call as at the number above for a free consultation. We are able to take many cases on a full or part contingency fee case.
California case law
Here is some general case law that might help you in your briefs filed in a California state court, for example in Orange, Los Angeles, or San Francisco counties. This deals with breach of fiduciary duty and financial elder abuse (and the shifting of the burden of proof that is possible in these cases). Please confirm the case law is applicable and do not rely on this as this is only general legal information and not legal advice.
Dual agencies in California are not illegal, but the brokerage cannot breach their fiduciary duties owed to the Plaintiff and cannot abuse an elder (over 65) by taking their money or property in bad faith.
- Breach of fiduciary duty
A dual agency exists where “an agent acting, either directly or through an associate licensee, as agent for the both the seller and buyer in a real property transaction.” Cal. Civ. Code § 2079.13(e). An associate licensee is one who is licensed as a real estate broker. Cal. Civ. Code § 2079.13(b). A typical dual agency situation involves an agent that represents both the buyer and seller of a parcel of land, in one transaction. See, e.g., Assilzadeh, 82 Cal. App. 4th at 405 (agent and agent’s employer represent the buyer and seller in a transaction to purchase a condominium); Bonaccorso v. Kaplan, 218 Cal. App. 2d 63, 68 (1962) (same agent represents the buyer and seller in one transaction); Huijers v. DeMarrais, 11 Cal. App. 4th 676, 686 (1992) (same agent represents the buyer and seller in the sale of a parcel of property).
A dual agency is permissible when the seller and buyer have knowledge and consent that the agent represents both the seller and the buyer. “The general rule is that an agent may represent both parties to a contract with their full knowledge and consent. See Cisco v. Van Lew, 60 Cal. App. 2d 575, 585 (1943); Cal. Civ. Code § 2079.16; Assilzadeh, 82 Cal. App. 4th at 414. In California, a broker who has signed a contract to act as a sales agent for the seller can also represent the buyer and act in the capacity of a dual agent in order to complete the sale and purchase of the property.”); See Bonaccorso, 218 Cal. App. 2d at 68 which held that since both sides were aware of the broker’s activities and that the broker represented the buyer and seller, the dual agency was permissible).
TIMING: the statute requires disclosure to the seller “as soon as practicable prior to presenting the seller with an offer to purchase” unless disclosure already had been made. (Civ.Code, § 2079.14, subd. (b), emphasis added.) The contemplated disclosure is to be in writing. See Brown v. FSR Brokerage, Inc., 62 Cal. App. 4th 766, 777, 72 Cal. Rptr. 2d 828, 833 (1998).
DUTIES OWED TO SELLER: An agent in a dual agency situation has a fiduciary duty to both parties in a real property transaction. Cal. Civ. Code § 2079.16. This fiduciary duty includes:
(1) the duty to act with the utmost care, integrity, honesty and loyalty with respect to both parties,
(2) the duty to diligently exercise reasonable skill and care in the performance of the agent’s duties,
(3) the duty of honesty, fair dealing and good faith;
(4) the duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties. Cal. Civ. Code § 2079.16.
Additionally, the duty to disclose material information, includes a duty to “disclose reasonably obtainable material information.” See Field v. Century 21 Klowden-Forness Realty, 63 Cal. App. 4th 18, 25 (1998) A dual agent is not obligated to disclose to either party any confidential information obtained from the other party that does not involve the fiduciary duties listed in California Civil Code section 2079.16. Cal. Civ. Code § 2079.16; see also Holmes v. Summer, 188 Cal. App. 4th 1510, 1525 (2010) (acknowledging that a broker is not required to disclose confidential information that does not involve the enumerated affirmative duties under Section1 2079.16). Moreover, the “duties of the agent in a real estate transaction do not relieve a Seller or Buyer from the responsibility to protect his or her own interests.” Cal. Civ. Code § 2079.16.
The duty NOT to disclose confidential information about willingness to pay sales price – California Civil Code section 2079.21 specifically provides that a dual agent “shall not disclose to the buyer that the seller is willing to sell the property at a price less than the listing price, without the express written consent of the seller. A dual agent shall not disclose to the seller that the buyer is willing to pay a price greater than the offering price, without the express written consent of the buyer.” See also Cal. Civ. Code § 2079.16 (dual agents may not, without the express permission of the respective party, disclose to the other party that the Seller will accept a price less than the listing price or that the Buyer will pay a price greater than the price offered); Brown v. FSR Brokerage, Inc., 62 Cal. App. 4th 766, 777 (1998) (relying on Section 2079.16 and stating that a dual agent is forbidden from disclosing to the buyer that the seller will accept less than the listing price).
A breach of this duty can result in the loss of commissions:
“The duty of a real estate agent to faithfully represent the interests of his or her principal, and to make full disclosure of adverse interests, long antedated this statute. Breach of these duties may result in loss of the right to compensation. (See Baird v. Madsen (1943) 57 Cal.App.2d 465, 475, 134 P.2d 885; Sierra Pacific Industries v. Carter (1980) 104 Cal.App.3d 579, 582, 163 Cal.Rptr. 764.) See Brown v. FSR Brokerage, Inc., 62 Cal. App. 4th 766, 777, 72 Cal. Rptr. 2d 828, 833 (1998).
Plaintiff alleges these duties were breached causing her significant damages.
- Financial elder abuse
(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.”
“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].
Many financial elder abuse claims derive from the exploitation of an elderly person’s real estate, often in the form of fraudulent financing schemes or transfers of title. A mortgage broker’s solicitation of a refinance agreement from an elderly mortgagor without disclosing actual the terms of the loan, and by instructing the mortgagor to sign loan documents without actually reading them, constitutes financial elder abuse. See Zimmer v. Nawabi, 566 F. Supp. 2d 1025 (E.D. Cal. 2008) (applying Cal. Welf. & Inst. Code § 15610.30(a)(1) in ruling that a broker’s fees were wrongfully obtained as a result of false statements about the terms of the refinance, which it knew were less favorable to the mortgagor than a previous mortgage).
One particular form of financial elder abuse involving real estate is the targeting of elderly homeowners for inappropriate loans, such as those with misleading or excessive interest rates or repayment terms. See Wells Fargo Bank, N.A., 2011 WL 2066670 (S.D. Cal. 2011). For a discussion of these issues generally, see Cause of Action in Tort for Wrongful Foreclosure of Residential Mortgage, 52 Causes of Action 2d 119; Cause of Action for Reverse Redlining or Predatory Home Mortgage Lending Under Fair Housing Act [42 U.S.C.A. § 3605], 49 Causes of Action 2d 209. Plaintiff alleges she was targeted. Some cases of abuse by a real estate broker in California are subject to a BRE investigation, audit, accusation, and or other disciplinary proceedings.
A plaintiff sufficiently stated a claim for financial elder abuse against a successor bank of another bank that intentionally targeted elderly borrowers, such as the plaintiff, to place them in “toxic” loans, in order to generate substantial profits. The complaint further alleged that the predecessor bank trained, directed, and authorized its employees, agents, mortgage brokers, and loan officers to implement the type of scheme used on the plaintiff. Finally, the plaintiff contended that all defendants ratified each other’s conduct. Wells Fargo Bank, N.A., 2011 WL 2066670 (S.D. Cal. 2011). Here, the brokerage authorizes the types of advertising used – namely offers of full cash offers – “as is” deals knowing these are not going to happen this way. This is deceptive marketing designed to injure and abuse Plaintiff.
In another example, Borrowers, who were 78 and 77 years of age, stated an elder abuse claim under California’s financial elder abuse statute against lenders, who allegedly acted as their “financial advisers” when they fraudulently (and negligently) induced them to obtain two loans from the lenders and, as a result, wrongfully induced them to mortgage their property, and incur interest charges, fees, and other expenses associated with the loans and development of the property. Accordingly, the court declined to dismiss the plaintiffs’ cause of action for financial elder abuse. See Errico v. Pacific Capital Bank, N.A., 753 F. Supp. 2d 1034 (N.D. Cal. 2010). Here, Defendants induced Plaintiff to sell her house at a reduced price based on lies and misuse of confidential information.
- Shifting the burden of proof
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. 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.”
Sample Mediation Brief
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Don’t forge the Pre-Judgment Writ of Attachment
in CA financial elder abuse cases one of the most POWERFUL WEAPONS a Plaintiff has is the ability to attach assets of the Defendant WITHOUT NOTICE TO THEM in compelling cases.
VIDEO: Click on the picture above to watch this valuable video that explains (in two parts) the writ of attachment process in California for financial elder abuse cases. This could be the ONE TOOL that forces the Defendant perpetrator to settle their case. Make sure to SUBSCRIBE to our legal channel by clicking on the Red “V” for VICTORY and join over 1,500 others who believe in our mantra “Be smarter than your friends.”
Contact an Elder Abuse Lawyer in California
Our law firm handles cases across the state of California from San Diego, to Orange County, Los Angeles County, and San Francisco bay area. Contact us for a free initial consultation. Many financial elder abuse cases can be taken on a contingency fee (all or part of the case) basis. Call us at (877) 276-5084.
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