Immigrants, especially elderly immigrants, are exceptionally vulnerable to financial scams. Our elderly immigration clients are usually not fluent in English, and not familiar with U.S. financial and legal systems. They may not realize they have been defrauded before it is too late, and may not know that there are legal remedies that may allow them to recover some or all of their loss. This article discusses how immigration counsel can take a proactive role in protecting the client.
For instance, if the family of an elderly immigrant client notices unusual changes in their relative's manner or habits, immigration counsel can advise them that they should be aware of potential financial abuse. Unfortunately, as the economy worsens, the scams that focus on elderly immigrants worsen as well.
Here are some tips to give to clients and their families who may be susceptible to financial abuse:
When a victim is being defrauded of his or her money, it is most often accompanied by some activity regarding the victim’s bank account, personal property, or even the victim's home. Actions of the victim that are signs of potential financial abuse to be aware of include activities in which the victim:
- engages in bank activity that is erratic, unusual or uncharacteristic.
- withdraws large sums from his or her account in a secretive manner.
-engages in bank activity that is inconsistent with the older person's ability (such as use of an ATM card despite the fact that the customer is house-bound).
-suddenly acquires new acquaintances, particularly those who take up residence with the customer.
-makes changes to property titles, will or other documents and is confused about the consequences of those changes.
-executes a power of attorney and is confused by the consequences of this action.
-doesn't have amenities for which he or she can pay (complains about having no heat despite the fact that he or she can afford to have it).
-indicates that some of his or her property is suddenly missing.
-indicates that he or she is being evicted.
-has obvious health or mental problems that are not being treated.
-indicates that his or her mail is no longer being delivered to the customer's home.
-is normally friendly, but begins to withdraw socially from family and friends or is afraid to engage in conversation with them.
-is consistently accompanied by someone who encourages him or her to withdraw large amounts of cash.
-is worried that he or she will be harmed for not giving money to a caregiver or companion.
-a noticeable change in the appearance and grooming of the victim.
-becomes disoriented, doesn't know where he or she is or indicates that he or she is forgetting where things are.
-noticeable change in the disposition or mood of the victim.
If any of the above signs of financial abuse present themselves, two questions arise. First, can anything be done about the abuse? Secondly, is the reporter of abuse exposing him/herself to a potential defamation action by reporting the suspected abuser? The answers to these questions are yes, there are laws to protect victims from financial abuse; and no, there is protection under the law from being sued for reporting suspected abuse.
California has adopted the Elder Abuse and Dependent Adult Civil Protection Act. The Act defines "financial abuse" as occurring when any person or entity takes, secretes, appropriates or retains real or personal property of an elder or dependent adult with the intent to wrongfully use or defraud, or who assists in doing so. It protects both elders 65 and over, and dependent adults. A "dependent adult" is a California resident between the age 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.
The Act defines reporters of possible abuse as either "mandated" or "non-mandated." "Mandated reporters" include any person who has assumed full or intermittent care or custody of an elder or dependent adult, regardless of compensation or license, elder or dependent adult "care custodians," health care practitioners, employees of Adult Protective Services and law enforcement officers. Failure of mandated reporters to report is a misdemeanor.
All other persons, including, for instance, the victim's lawyer, accountant, financial institutions and their employees, and the family and friends of the victim, are "non-mandated" reporters, if they know, or reasonably suspect an elder or dependent adult has been, or is in the process of becoming, a victim of abuse of any kind.
The Act provides that a non-mandated reporter of known or suspected elder or dependent adult abuse shall not incur civil or criminal liability as a result of a report, unless it can be proven that a false report was made and the person knew it was false.
In a typical scenario, the family of the victim has noticed unusual behavior in their elderly relative. With education on recognizing the signs of abuse, the family decides that there is reasonable suspicion of financial abuse to their elderly relative. As a potential non-mandated reporter, the victim's family has only two reporting options to be within the qualified safe harbor of the Act: to report to either county Adult Protective Services (APS), or a local law enforcement agency, including a prosecutor's office.
In addition, non-mandated reporters should be able to show that reports have been made upon reasonable suspicion. "Reasonable suspicion" includes " . . . an objectively reasonable suspicion that a person would entertain, based upon facts that could cause a reasonable person in a like position, drawing when appropriate upon his or her training and experience, to suspect abuse." If the immigration lawyer has personal knowledge of the facts and circumstances that would lead to “reasonable suspicion”, he or she would be the reporter.
Immigrants, and especially elderly immigrants, are unfamiliar with the ways in which business is conducted in the U.S., and that they have any recourse from fraud. Because the relationship with most immigration attorneys and their clients often extends to various family members over a large expanse of time, the immigration attorney often is in a position help an elderly immigrant victim and/or his or her family and friends to recognize financial abuse, take appropriate action to signs of financial abuse, and be able to articulate the specific reasons for the suspicion. The abuse can then be reported and the abuser forced to return the property or money of the defrauded victim, often with appropriate penalties for their fraudulent actions.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
Thursday, February 25, 2010
Immigrants and Bankruptcy
Have you ever had an immigration client, with a very good case, who suddenly informs you he or she has decided to abandon the case and return to his or her home country? Clients such as these may not want to discuss the reasons behind their decision to give up and leave, but the chances are that the turn-down in the economy, and culturally-driven feelings of shame and disgrace, may be at the root of the client’s decision to throw away the chance to remain in the U.S., become a U.S. citizen, and to sponsor family members.
The concepts of insolvency and bankruptcy have been known for many centuries, and in almost all the world’s cultures. Bankruptcy systems around the globe reflect the legal, historical, political, and cultural values of the countries that have developed them; and are themselves reflected in the attitudes and actions of immigrants who find they can no longer pay their bills.
While many countries and regions have developed bankruptcy laws that more or less mirror those of the United States, nearly all foreign countries have far less forgiving cultural views toward debt and debt forgiveness than does the United States. In some parts of the world, declaring bankruptcy is the ultimate disgrace, and can lead to public humiliation and even incarceration. In other parts of the world, there simply is no personal bankruptcy system, and little in the way of business reorganization, either.
To the Chinese, for instance, it is a shameful thing not pay one’s debts, a disgrace that would follow one for the rest of his or her life. Culturally, like the Japanese, the Chinese are taught to value relationships over money and self-promotion. In Hong Kong, however, filing for bankruptcy does not carry the stigma it does in many other Asian countries, in part because Hong Kong’s community is internationally-oriented and transient. But among the traditional Chinese people who live in Hong Kong and other countries, the stigma is still present. As such, bankruptcies from Chinese owned business in the U.S. are rare. In general, both mainland Chinese and Hong Kong Chinese immigrants would rather avoid courts, preferring to work things out on their own, than to make public their shame.
In Japan, the stigma of bankruptcy is more deeply-rooted than in virtually anywhere else in the world. Executives of failed companies in Japan consider financial failure to be the ultimate societal disgrace, for which suicide is a common way out. As consumer debt levels rise in Japan, the insolvency rate (and suicide rate) also increase. Immigration attorneys representing clients from Japan sometimes become nervous about the wellbeing of the Japanese clients they suspect are having financial troubles, especially when they have not heard from them in a long time. Immigration counsel may take a proactive approach in dealing with clients they suspect of insolvency. Counsel may want to provide basic information about the American bankruptcy system, emphasizing that it is not punitive or personal.
Before a bankruptcy case can be filed, the immigrant client must decide whether bankruptcy is, in fact, the best vehicle for dealing with the problems that he or she faces. Because immigration counsel already has an established relationship with the immigrant client, counsel can informally discuss possible avenues of handling financial problems, other than bankruptcy, with the client. Because few immigration attorneys feel competent to give legal advice on areas of law other than immigration, the discussion should lead to a referral to competent counsel in the areas of law brought up in the informal discussion.
It is never possible to decide how to counsel or refer the client without a thorough knowledge of the relevant facts. The immigrant client must understand that keeping important information from counsel may worsen his or her financial position. For instance, a client who keeps secret essential information regarding his or property runs the risk that property such as a tax refund may be lost in bankruptcy, major debts will not be discharged, and real property might be incorrectly valued and, as a result, lost to creditors.
As immigrants build their lives in the U.S., they are exposed to more and more credit, easy to get but laden with penalties and fees they do not expect. (One of my Middle-Eastern clients had been paying his mortgage with cash advances on his credit card.) Long-held and negative cultural views of bankruptcy and insolvency may make your client reluctant to discuss financial issues with you or with bankruptcy counsel, but a proactive discussion regarding the relevant facts may save both the client’s immigration case and preserve his or her financial freedom.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
The concepts of insolvency and bankruptcy have been known for many centuries, and in almost all the world’s cultures. Bankruptcy systems around the globe reflect the legal, historical, political, and cultural values of the countries that have developed them; and are themselves reflected in the attitudes and actions of immigrants who find they can no longer pay their bills.
While many countries and regions have developed bankruptcy laws that more or less mirror those of the United States, nearly all foreign countries have far less forgiving cultural views toward debt and debt forgiveness than does the United States. In some parts of the world, declaring bankruptcy is the ultimate disgrace, and can lead to public humiliation and even incarceration. In other parts of the world, there simply is no personal bankruptcy system, and little in the way of business reorganization, either.
To the Chinese, for instance, it is a shameful thing not pay one’s debts, a disgrace that would follow one for the rest of his or her life. Culturally, like the Japanese, the Chinese are taught to value relationships over money and self-promotion. In Hong Kong, however, filing for bankruptcy does not carry the stigma it does in many other Asian countries, in part because Hong Kong’s community is internationally-oriented and transient. But among the traditional Chinese people who live in Hong Kong and other countries, the stigma is still present. As such, bankruptcies from Chinese owned business in the U.S. are rare. In general, both mainland Chinese and Hong Kong Chinese immigrants would rather avoid courts, preferring to work things out on their own, than to make public their shame.
In Japan, the stigma of bankruptcy is more deeply-rooted than in virtually anywhere else in the world. Executives of failed companies in Japan consider financial failure to be the ultimate societal disgrace, for which suicide is a common way out. As consumer debt levels rise in Japan, the insolvency rate (and suicide rate) also increase. Immigration attorneys representing clients from Japan sometimes become nervous about the wellbeing of the Japanese clients they suspect are having financial troubles, especially when they have not heard from them in a long time. Immigration counsel may take a proactive approach in dealing with clients they suspect of insolvency. Counsel may want to provide basic information about the American bankruptcy system, emphasizing that it is not punitive or personal.
Before a bankruptcy case can be filed, the immigrant client must decide whether bankruptcy is, in fact, the best vehicle for dealing with the problems that he or she faces. Because immigration counsel already has an established relationship with the immigrant client, counsel can informally discuss possible avenues of handling financial problems, other than bankruptcy, with the client. Because few immigration attorneys feel competent to give legal advice on areas of law other than immigration, the discussion should lead to a referral to competent counsel in the areas of law brought up in the informal discussion.
It is never possible to decide how to counsel or refer the client without a thorough knowledge of the relevant facts. The immigrant client must understand that keeping important information from counsel may worsen his or her financial position. For instance, a client who keeps secret essential information regarding his or property runs the risk that property such as a tax refund may be lost in bankruptcy, major debts will not be discharged, and real property might be incorrectly valued and, as a result, lost to creditors.
As immigrants build their lives in the U.S., they are exposed to more and more credit, easy to get but laden with penalties and fees they do not expect. (One of my Middle-Eastern clients had been paying his mortgage with cash advances on his credit card.) Long-held and negative cultural views of bankruptcy and insolvency may make your client reluctant to discuss financial issues with you or with bankruptcy counsel, but a proactive discussion regarding the relevant facts may save both the client’s immigration case and preserve his or her financial freedom.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
Immigrants' Homeowners' Association Issues
It is difficult enough to explain to our immigration clients that there are two levels of government, federal and state (counties and cities being political subdivisions of the state), let alone trying to explain a third level of government that has been imposed upon them once they move into a “common interest development” that is governed by a homeowners’ association.
A homeowners' association (HOA) is an organization created by a real estate developer for the purpose of developing, managing and selling a development of homes. In California alone, an estimated 45% of all housing are “common-interest developments” in which homeowner’s associations collect over $9 billion dollars per year in homeowner’s dues (called “assessments”) from the homeowners who live in the developments. Many immigrants currently live in common interest developments, having no idea of the unexpected problems that they may face after purchasing their homes. Some of these problems stem from:
- special assessments (dues other than the regular monthly assessments or dues)
- immigrants’ inability to be involved with HOA governance because of language or cultural issues
- intrusive and restrict HOA rules that may conflict with immigrants’ personal or cultural values.
Immigrants, in particular, are often unaware that they have not just bought a home, but have assumed a shared liability in managing a housing complex. In addition, some homeowners’ associations have taken up the enforcement of federal immigration laws. One homeowners’ association recently decided that it has the right to deny residency based on immigration status. The HOA, a trailer park in the Dallas, Texas, area, has required proof of legal status, and refused to allow a new buyer’s water or electricity to be turned on because he was not in status. Even though immigration matters are reserved for the federal government under the constitution, there is little regulation or oversight over HOA’s, and this constitutional violation goes unchecked.
The number one issue facing immigrants in common interest developments is foreclosure, which HOA’s will often pursue even when small amounts of money are overdue. In California, for instance, homeowners’ dues may increase up to 20% per year without the prior approval of the homeowners. In this way, even a home that is paid off may be foreclosed on if the dues are not paid. This concept is foreign and incomprehensible to many immigrants and limited English speakers, who often do not realize they are losing their homes until it is too late.
Given the above, there are seven basic rights that immigrants (and indeed all homeowners) in homeowners’ associations should know:
1. In order for the HOA to foreclose, the amount owed must be $1800 or more, or else must be more than 12 months overdue.
2. The HOA cannot foreclose for fines or penalties. (Fines and penalties accumulate quickly when the HOA has hired a collection agency.)
3. Before collecting assessments (i.e., homeowners’ dues), the HOA must give the homeowner annual, written notice of its collection policies, including any policies on foreclosure.
4. The HOA must give 30 days written notice to the homeowner before recording a lien on the homeowner’s home. Within the 30 days, the homeowner is entitled to meet with the HOA Board of Directors to verify whether the homeowner indeed owes the money. The homeowner may ask for a payment plan and can dispute the alleged debt using a neutral third party.
5. The homeowner is entitled to see all the HOA’s accounting records to verify the debt; and is not liable for collection costs or charges if the dues were actually paid on time.
6. If the HOA hires a collection agency to collect the homeowner’s debt, the collection agency must comply with state and federal fair debt collection laws.
7. If the HOA forecloses, the homeowner has 90 days in which to repurchase the home from the person or entity that had the winning bid at the foreclosure auction.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
A homeowners' association (HOA) is an organization created by a real estate developer for the purpose of developing, managing and selling a development of homes. In California alone, an estimated 45% of all housing are “common-interest developments” in which homeowner’s associations collect over $9 billion dollars per year in homeowner’s dues (called “assessments”) from the homeowners who live in the developments. Many immigrants currently live in common interest developments, having no idea of the unexpected problems that they may face after purchasing their homes. Some of these problems stem from:
- special assessments (dues other than the regular monthly assessments or dues)
- immigrants’ inability to be involved with HOA governance because of language or cultural issues
- intrusive and restrict HOA rules that may conflict with immigrants’ personal or cultural values.
Immigrants, in particular, are often unaware that they have not just bought a home, but have assumed a shared liability in managing a housing complex. In addition, some homeowners’ associations have taken up the enforcement of federal immigration laws. One homeowners’ association recently decided that it has the right to deny residency based on immigration status. The HOA, a trailer park in the Dallas, Texas, area, has required proof of legal status, and refused to allow a new buyer’s water or electricity to be turned on because he was not in status. Even though immigration matters are reserved for the federal government under the constitution, there is little regulation or oversight over HOA’s, and this constitutional violation goes unchecked.
The number one issue facing immigrants in common interest developments is foreclosure, which HOA’s will often pursue even when small amounts of money are overdue. In California, for instance, homeowners’ dues may increase up to 20% per year without the prior approval of the homeowners. In this way, even a home that is paid off may be foreclosed on if the dues are not paid. This concept is foreign and incomprehensible to many immigrants and limited English speakers, who often do not realize they are losing their homes until it is too late.
Given the above, there are seven basic rights that immigrants (and indeed all homeowners) in homeowners’ associations should know:
1. In order for the HOA to foreclose, the amount owed must be $1800 or more, or else must be more than 12 months overdue.
2. The HOA cannot foreclose for fines or penalties. (Fines and penalties accumulate quickly when the HOA has hired a collection agency.)
3. Before collecting assessments (i.e., homeowners’ dues), the HOA must give the homeowner annual, written notice of its collection policies, including any policies on foreclosure.
4. The HOA must give 30 days written notice to the homeowner before recording a lien on the homeowner’s home. Within the 30 days, the homeowner is entitled to meet with the HOA Board of Directors to verify whether the homeowner indeed owes the money. The homeowner may ask for a payment plan and can dispute the alleged debt using a neutral third party.
5. The homeowner is entitled to see all the HOA’s accounting records to verify the debt; and is not liable for collection costs or charges if the dues were actually paid on time.
6. If the HOA hires a collection agency to collect the homeowner’s debt, the collection agency must comply with state and federal fair debt collection laws.
7. If the HOA forecloses, the homeowner has 90 days in which to repurchase the home from the person or entity that had the winning bid at the foreclosure auction.
About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.
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