Stopping Fraud Against the Elderly Why it happens here and what to do about it

Burman, Critton, Luttier and Coleman LLP Blog

By Benny Lebedeker

Florida has long been a mecca for retirement. In 2005 approximately 400,000 retired to this state, which was three times the amount of people who retired to California and Arizona. Approximately 17% of the State’s population is over the age of sixty five, and in some counties the percentage of residents over that age tops 30%. Unfortunately while Florida’s subtropical climate and beautiful beaches are a magnet for retirees, those same virtues also attract the con men and unscrupulous businessmen who prey on them. Often the adult children of elderly parents are left picking up the pieces left behind after a parent has been defrauded. Just as often elderly people who have been the victims of fraud are so embarrassed by the fact that they have been taken advantage of that they don’t tell their children or relatives what has happened. Consequently, as is often the case in life, an ounce of prevention is worth a pound of cure. Here are some tips to combat fraud against the elderly:

1. Be familiar with your parents’ financial activity: Although financial institutions have a statutory duty under F.S. § 415.0134 to report suspected elderly abuse or exploitation, the hard cold reality is that these institutions are businesses which strive to be as efficient and profitable as possible. Therefore banks and brokerage houses typically act to protect their own interests, and often fail to comply with statutory reporting requirements. Moreover, the trend in banking and financial services has long been toward insulating themselves from liability and eliminating the direct, person to person, contacts which are often so critical to spotting fraud. Does you parent have a safe deposit box? You can bet the safe deposit box agreement limits or eliminates the bank’s liability for theft from that box. Does your parent have a checking account? You can bet that over the years the bank has consistently limited the amount of information available to your parents in their monthly statements. Very few bank provide canceled checks anymore, and many of them are pushing clients into on-line banking. These changes typically make it harder for your parents to manage their financial affairs. You should take the time to learn what accounts your parents have and at what institutions. If possible you should have duplicate statements sent to your home, and you should review them for changes in patterns of financial activity. For instance, if you begin to see large checks made out to cash, or frequent withdraws which do not seem to be tied to any specific bill or debt, make a gentle inquiry regarding the purpose of the expenditures.
2. Simplify, Simplify: A collary of the first rule is to simplify your parents’ financial lives. Where possible, eliminate multiple bank and brokerage accounts, and suggest that your parents use a single branch for their banking. It is much easier to keep track of what is going on if fewer accounts are involved. Very few retired persons need complicated investment strategies or products. Quite simply, most senior citizens need to preserve capital and reduce expenditures – not play the stock market or invest in complicated business ventures.
3. Teach Mom and Dad to hang up the Phone: Unfortunately, a large number of scams still begin over the telephone. Scammers know that senior citizens often live alone and are isolated, that they are more polite, and that they tend to have more time to speak on the phone. Consequently, scammers have learned over the years that repeat calls and lengthy (sometimes pressuring or threatening) conversations can lead to an elderly person giving financial information out over the phone, or agreeing to a “purchase” or “investment” that is just the first step in a scam. Tell Mom and Dad to never give out personal or financial information over the phone – and that it’s o.k. to simply hang up on someone who seeks this information. Finally, the “Do-Not-Call” registry can prevent many of these calls from ever taking place.
4. Watch the Usual Suspects: Confidence schemes and frauds typically dress up as legitimate business ventures, and time and again we see the same “covers” being used. These often include the following types of businesses:

• Contractors
• Life Insurance/Annuities/Viatical Salesmen
• Debt Consolidators and Mortgage Brokers
• Anyone offering a prize or a chance to participate in a contest

Advise your elderly parents that they should avoid any transaction which requires a “deposit” or “fee” up front. The most basic schemes involve transactions where the con man advises the victim that he or she has to pay an initial sum for “materials” (contractor scam), an “initiation fee”, “origination fee”, or “application fee” (financial institution/investment scams); or a “registration fee” or “shipping fee” (contests) and then simply disappear with the victim’s money. Remember, if it sounds too good to be true, it probably is.

The sad reality is that in today’s go-go money is all that matters world no one will look after your elderly parents but you. Your parent’s financial institutions need to maximize profit by providing minimal services in exchange for a maximum fee, law enforcement and prosecutor’s budgets are being slashed, and the old fashioned neighborhoods where everyone watches out for everyone else is pretty much a thing of the past. If you believe a parent has been taken advantage of and would like to see if you have legal recourse, feel free to contact us at Burman, Critton, Luttier & Coleman.

Tis’ the season – to be careful.

Burman, Critton, Luttier and Coleman LLP Blog

By Benny Lebedeker

As we head out to the malls and stores to engage in our annual binge of holiday shopping, we are not the only ones excited by the advent of the season. As the still unsolved and tragic Bochicchio murders remind us, there are those unscrupulous (and worse) elements of society who view the holiday season as a time of opportunity, when busy schedules and open purses can mean a happy holiday for the criminals among us. Here are some tips to make your season safer and more enjoyable.

Parking lots – One of the areas where you are at your most vulnerable. It is virtually impossible to secure a large parking lot. Parking lots present open access to the public, the sheer size of many of these lots dilute the presence of whatever security officers may be working, large SUVs and other vehicles obscure the view of what is happening around, and the lighting is often less than ideal. To protect yourself remember these simple tips:

• Park as close to the store as possible. Circling around a crowded parking lot looking for an open space is never fun, but a few minutes it costs you may save you a lifetime of misery.
• If you have to park away from the entrance to the mall or store, look for an area which is well lit, where there is a security camera, or where there are passersby who can observe what is happening around your care. Never park behind a mall or store, or in areas where your vehicle is hidden or obscured from the public.
• Travel in a group – especially at night.
• Take your keys out of your purse or pocket when you leave the mall or store so that you aren’t fumbling for them when you reach your car.
• If you have multiple packages to carry, ask a security guard to escort you to the car.

Inside the mall or store – Once inside the mall or store, the potential risks posed

by criminal activity do not disappear. While the interior spaces of a mall or store are better lit and often patrolled by security, keep these important tips in mind:

• Crowds provide cover. Crowded areas allow criminals to blend in. Be aware of the person or persons who seem to follow you inside a store, bump into you, or stand too close. If the behavior of a particular person makes you uncomfortable or seems suspicious, alert security or store personnel.
• Keep your purse closed and in hand. An open purse, or a purse dangling by a shoulder strap, can be a tempting target. If you’re a man, keep your wallet in a jacket pocket, or in the front pocket of your pants, not in your back pocket where it is easily accessible.
• Watch the kids. The unfortunate reality is that children are often the target of criminal activity in today’s world. NEVER leave a child unattended, or use a video arcade or toy store as a baby sitter. Pedophiles and molesters frequently “case” areas where children congregate. An unattended child is a prime target.

Under Florida law a mall or store owes its patrons a duty to exercise reasonable

care for their safety. This is a non-delegable duty, which means that a the mall or store owner cannot avoid the consequences of failing to exercise reasonable care by asserting that it hired a security guard company or parking lot manager, and that the company or persons the mall or store owner hired was negligent. While prior criminal activity on a property will alert the property owner to the fact that criminal activity on the premises is foreseeable, the absence of such activity does not eliminate the mall or store owner’s duty to maintain a reasonably safe premises. Unfortunately, there is often a gulf between what the law requires and the security measures a particular mall or store implements. The best way to ensure your protection is to be proactive when it comes to your safety, and take those small steps which can make a happy season a safe.

Commercial Arbitration Agreements…The Pitfalls & Practicalities

Burman, Critton, Luttier and Coleman LLP Blog

By: Benny Lebedeker, Esq.

Due to the fact that they are so prevalent in the marketplace, understanding commercial arbitration contracts is necessary. Whether you are purchasing an appliance or shares of a corporation on the New York Stock exchange, the chances are that tucked away in the fine print of a contract or receipt is a provision which states that you have waived your right to file a lawsuit in the event of a dispute with the provider of the good or service you are purchasing, and that you agree to submit any such disputes to binding arbitration.

Arbitration, defined most simply, is the submission of a dispute to a private forum. Originating in large part from the organized labor movement, the original idea was to streamline the resolution of disputes by submitting them to a person or panel of persons who would act as a private judge. The rationale was that if the parties got to choose the decision makers, they could select a person who had knowledge of the subject matter. For instance, if the dispute involved a disagreement between a shop foreman and a manager who worked in a steel mill, an arbitrator who had past experience working in a similar mill could be selected. This person might have additional insight into the dispute based upon his own experiences and, the theory goes, be in a better position to resolve the dispute. Over time Courts began routinely enforcing such provisions, and the current state of the law is that arbitration provisions are not only enforceable, but that they are favored under the law.

Unfortunately, the nature and scope of arbitration agreements have radically changed over time. What began as a means of resolving disputes between experienced labor and management negotiators was soon being applied to securities transactions, commercial goods, and even nursing home contracts. The nature of the process and the nature of the arbitrators have changed over time too, and not for the better. Professional arbitration services, some good and some bad, have proliferated. In many instances these services are established to serve a specific constituency, sometimes with draconian results.

For instance in November of 2009 the attorney general of the State of Minnesota, Lori Swanson, announced that she had a settled a suit with several consumer credit card issuers, including JP Morgan Chase. According to the suit some thirty credit card had met in secret and agreed to require all card holders to submit to binding arbitration. The issuers then used almost exclusively an arbitration service named the National Arbitration Forum. Not surprisingly, the use of a captive arbitration service led to highly skewed results, with the card issuers winning almost all of the disputes submitted by consumers. The suit and evidence also reflected that the National Arbitration Forum misled consumers about their ties to the credit card issuers. Unfortunately, this firm has been involved in disputes with similarly unfair arbitration agreements, including arbitration services which prohibit a consumer's attorney from participating in parts of the dispute resolution process and permit an arbitrator to disqualify an attorney who engages in "unnecessary advocacy" on behalf of the client.

Consequently, consumers have to consider the following when they locate an arbitration provision in a contract which they are signing:

1. Do I want to give my right to a jury trial if a dispute arises? If not, can I obtain this good or service from another merchant who will not require arbitration?

2. What service and rules govern the arbitration process to which I am agreeing? Will I be treated fairly in the process, or does the agreement require me to arbitrate in a forum which favors the merchant?

Although there are legal defenses to the enforceability of arbitration agreements, they tend to be very narrow and litigating to avoid the effects of the agreement can be expensive. Often times the existence of the agreement is discovered by the consumer only after the product or service has caused considerable injury or loss to the consumer. The smart consumer therefore consults with an attorney before signing such agreements. If however you are in a situation where an accident or loss has already occurred and the person who caused the injury or loss is telling you that your rights are limited by an arbitration agreement, call your trusted advocates at Burman, Critton, Luttier & Coleman.

Working For the Old School Guys

Burman, Critton, Luttier and Coleman LLP Blog

By: Benny Lebedeker, Esq.

It seems like this is the time of the year when, on top of the usual holiday depression, my spirits are further dampened by reports of members of my profession acting like criminals with brief cases, and not professionals sworn to respect and uphold the law. Last year we were bombarded with press about "mortgaged backed securities"; – securities dreamed up by Wall Street lawyers; securities which had received triple A ratings but which ultimately proved to be worthless. This year it's the law firm of Rothstein, Rosenfeld & Adler and Scott Rothstein's Ponzi scheme. These stories leave the public with the impression that attorneys are flashy self-promoters who make outrageous amounts of money by using their knowledge of the law for nefarious ends, hurting the public along the way.

My father was an old school lawyer here in Palm Beach County for over twenty years. My father was never a wealthy man and we lived very modestly. Yet to my knowledge my father never took a dime he did not earn, never advertised for cases, and avoided the publicity which other lawyers sought with such ferocity.  When I passed the bar exam, my father explained to me that being a lawyer was like being a superhero – you should always use your powers for good, and never use your powers for evil. Here are some other things that I learned from my father and other "old school lawyers" I've been fortunate enough to work for:

1. Never be arrogant or disrespectful to witnesses or litigants. Juries hate arrogant lawyers and witnesses won't cooperate with a disrespectful attorney.
2.  90% of the clients who come to you, hire you because they need help with a legal problem. These clients aren't interested in multi-million dollar verdicts, wrecking vengeance on the opposing party, or seeing your name in the paper discussing their cases. They just want their problem solved and at a reasonable price. 10% of clients who come to you do expect multi-million dollar verdicts, want to wreck vengeance on the opposing party, and can't wait to see their cases discussed in the press. Avoid that 10% like the plague.
3. The legal system in this country is adversarial and you have to fight like hell for every client you represent, and there is no such thing as a small case. Every client's case is important to the client, no matter how much is at stake.

Many of the "old school" lawyers who provided me with this insight have moved on, and there are fewer and fewer of them around. However my firm does not advertise, we work hard for our clients, and we succeed without being arrogant, self-promoting, or sneaky. I get to go home at night with my self-respect intact, and tell my kids that I help people for a living. There's no school like the old school.