It seems like every innovative leap forward creates a new opportunity for financial abuse. But while the products may be new, many of the old tricks remain the same. For example, much of the fraud that we are seeing today with the door-to-door sales of solar panels and solar energy mirrors the tactics used with door-to-door home insulation sales in the 1980s. Fraud is still fraud. The Conn Law, PC team is experienced in helping consumers enforce their rights against rogue companies in areas that include:
Door-to-Door Sales: Both California and Federal law provide protections for consumers against high-pressure “door-to-door” sales. California’s Home Solicitation Sales Act sets forth extensive requirements for door-to-door sales and gives consumers three business days to cancel covered contracts. If a company violates the Home Solicitation Sales Act the consumer can cancel the contract until the violation is fixed.
California Translation Act: The California Translation Act protects California’s diverse population and generally requires that consumers who negotiate consumer contracts in Spanish, Chinese, Tagalog, Vietnamese, or Korean, be provided with a contract written in the negotiated language. If no contract translation is provided, the consumer can cancel the contract.
Financial Elder Abuse: Many elderly and disabled Californians are unable to protect themselves against financial abuse by their caretakers and others. California’s Elder Abuse and Dependent Adult Civil Protection Act was enacted to combat this type of abuse and provides special protections for the elderly and dependent adults.
Door-to-Door SalesCalifornia has one of the strongest “Three Day Cooling-Off Rules” in the United States. California’s Home Solicitation Sales Act covers almost all consumer transactions, which take place in the buyers home, or away from the sellers normal business premises, that involve $25 or more. The statute applies to deals made at swap meets, in airplanes, or even some deals made over the phone. (There are some exceptions to the Act’s coverage. It does not apply to attorneys, real estate brokers, doctors, and some other services).
The statute gives the consumer three business days to cancel covered contracts.
The Home Solicitation Sales Act has other robust requirements. For example:
The consumer’s right to cancel the contract is extended until the merchant complies with these requirement. That means, if the merchant fails to provide any of the above notices, then the consumer can cancel at any point, and the merchant may not be entitled to any compensation.
This law has been on the books since 1971. But even today, many companies still do not comply. California residents whose home solicitation contracts do not set forth the three-day right to cancel may be entitled to cancel their contracts and receive a refund for any money paid.
California Translation ActCalifornia is the most diverse state in the country. Millions of Californians either do not speak English at all or do not speak it well. They certainly do not use English are part of their everyday life. This is why California Civil Code Section 1632, known as the “California Translation Act” (“CTA”) exists. In many situations, it protects non-English language speaking consumers that negotiate a transaction in that language from being tricked into signing an English-language contract with different terms.
In amending the CTA in 2011, the California Legislature found that 15.2 million Californians spoke a language other than English at home. 3.8 million of those either do not speak English well or do not speak English at all. 3.5 million of those 3.8 million speak at least one of the following five languages: Spanish, Chinese, Tagalog, Vietnamese, or Korean. These numbers have only gone up since 2011.
In order to protect California’s sizeable non-English speaking population, the CTA requires that if certain contracts are negotiated in Spanish, Chinese, Tagalog, Vietnamese, or Korean, then the written contract must be written in the language that it was negotiated in. At the very least, a translation must be provided before it is signed. Covered contracts include:
If any of theses types of contracts are negotiated in Spanish, Chinese, Tagalog, Vietnamese, or Korean, then the consumer has to be given an in-kind language translation before they sign the contract.
Civil Code Section 1632 also applies to any subsequent documents related to a transaction that changes the rights and obligations of the parties. This could include refinancing documents, or post-repossession notices.
There is one important exception. If the non-English speaker consumer uses his or her own interpreter, to negotiate the transaction. But the interpreter cannot be employed by the selling business and must be not be a minor.
If the CTA is not complied with and no translation is provided, then the consumer may have the right to cancel the original contract.
Please fill out our online contact form or give us a call if you have any more questions.
Financial Elder AbuseCalifornia was one of the first states in the country to enact a comprehensive law to provide civil protection for elderly and dependent adults. The Elder Abuse and Dependent Adult Civil Protection Act, California Welfare & Institutions Code § 15600, et seq. (“EADACPA”) was enacted in 1982 “to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.”
In enacting the EADACPA, the California Legislature recognized that the abuse and neglect of elders and dependent adults is a growing problem and that the state had a responsibility to protect them. The Legislature found that, at the time, “cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits.”
As a result, the Elder Abuse and Dependent Adult Civil Protection Act was specifically written “to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.”
While the impetus behind the Elder Abuse and Dependent Adult Civil Protection Act may have been a specific type of abuse by nursing homes and other types of caretakers, as written, it has a much broader application.
The EADACPA protects “Elders” and “Dependent Adults.”
The term “Elder” is straightforward; it means any person residing in California that is 65 or older.
“Dependent adult” is broader and includes any person in California, between the ages of 18 and 64, “who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.”
In California, “physical and mental disabilities” can include “chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease.” California Government Code § 12926.1(c). Physical limitations can also include any: physiological disorder or condition, cosmetic disfigurement, or anatomical loss substantially affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; or endocrine." California Civil Code § 1761(g)(1)(A)
And, physical or mental impairment includes, but is not limited to: "diseases and conditions that include orthopedic, visual, speech, and hearing impairment, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, and emotional illness." California Civil Code § 1761(g)(1)(B)
In any case, the disability must create a “limitation” on a major life activity. California Government Code § 12926.1(c). Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. California Civil Code § 1761(g)(2)
Financial abuse of an elder or dependent adult happens when a person or entity takes, secretes, appropriates, obtains, or retains (or assists in doing so), real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both, or does so by undue influence.
Property is considered “taken” when the elderly or dependent adult is deprived of any property right.
And wrongful use means that the person knew, or should have known, that their conduct is likely to be harmful to the elder/dependent adult.
With such broad definitions, the EADACPA applies to almost any situation where a company take financial advantage of Californian that is over the age of 65 or otherwise a dependent adult. It does not just apply to abuse by caretakers. The EADACPA claims can be brought against unscrupulous car dealers, hearing aid providers, real estate developers, banks, and insurance companies.
The EADACPA provides for wide remedies and provides for compensatory damages, attorneys’ fees and costs, “all other remedies provided by law,” and potential punitive damages.
If you believe that you or a loved one is protected by the EADACPA and has been a victim of financial abuse please give us a call or fill out our online contact form.