by: Jack Payne
If 75% of women wear the wrong bra size, and 75% of men wear shirts with the wrong sleeve length, is it any wonder that so many people do not understand paper trails, do not understand their critical roles in con games? Fraud, shell games, scandal-revelation and creation, and rip-offs of every kind flower from this tell-tale debris.
And, alas, most importantly, it is essential to understand how all of this paper trail information is tied together by social security numbers. (For the intent to rob you blind, this information collecting method is, obviously, patently illegal. For the lawn mower manufacturer, in his search for demographics trying to sell you a new riding mower, however, society seems to feel this is O.K)
Spreading like wildfire, with the aid of an internet stage setting, what are paper trails anyhow? Let's be more specific.
Simply put, as they might affect you, they are every sort of record, kept anywhere, that link business transactions back to you. These can be any paper document such as a bill of sale, promissory note, receipt, application, resume filing, customs claim, insurance form, notarized statement, any legal form. These spell out into computer records.
It's largely society's propulsion into the computer / internet era of the 1990s that has brought about this current-day fleshing out of the "paper trail." It's now so efficient that the structural schematic of this thought-police invasion--this total assault on your privacy--should indeed frighten you. What next? you might ask. Will you be marked with a tracking device so the government always knows where you are?
In this day and age it's computers, computers, internet, internet. Far and wide. They are to blame. It's computer records that pull all these bits of paper information together, to the delight of con artists.
Examples: Credit card purchase? Computer. Bank deposit? Computer. House purchase? Computer. And, the list goes on and on. Endlessly.
Take a simple, one-time credit card purchase. This is stored in the bank's computer, as well as several way stations along the path back to your bank, in the network's computers. When you deposit cash into your checking account the information is stored in a computer. when you deposit cash into your savings account the information is stored in a computer. when you buy a house you get a triple-whammy, the transaction is stored in a computer, in paper form, and on microfilm at your county recorder's office. Every time you turn around and blink these days, it seems, something about you is recorded in a computer.
And, sad to say, the common link that pulls all of your business transactions together is your social security number. It is the commonly used identifier of the present day age. By using only your social security number the con man can put together a near-total list of your business transactions stretching back over the years.
So, stealing your ss number--it being the string-tying mechanism which pulls everything together-- then packaging it neatly and presenting your financial affairs to the world as the "whole you"--makes it easy for the con man. These data include such invasion-of-privacy issues as what assets you have, where you shop, what you buy, and what you owe on various credit accounts and loans. The skilled con artist knows precisely how to pull this string.
Unfortunately, too many people today regard this as only a mild irritation, like talking to robots on the phone while trying to make a warranty claim on a defective computer. Red flag! It's far more serious than that So, like it or not, the challenge is on you, to weave, dodge, confuse, and bewilder any scam artist who might be about to stalk you.
How do you do this? How do you fortify your defenses?
You must disrupt your paper trail. This can partially be done in several ways, or combination:
1. A long, long time ago, in a galaxy far, far away (seemingly), cash was used. Stash your credit and debit cards. Earmark them for occasional or emergency use only, and for the most part rediscover cash money, paper and coin. Go back to this simpler form of exchange wherever possible. We all feel nostalgia isn't what it used to be, but this step alone will go far toward masking your paper trail.
2. Set up a Trust. This is like turning the porch light on, with nobody home. It somewhat confuses the paper trail by disrupting the con man's view, due to the linkage between you and your Trust. Like the service station attendant washing your windshield with a soapy brush, this will partly obscure the vision of the con man trying to put together a financial profile on you.
3. Refuse to star in the con artist's psychodrama. Go offshore. Not physically. Just export some of your assets This is not considered socially acceptable. Not patriotic, either. But, it's not illegal, and it is most effective. If you make yourself invisible to the bureaucrats--and the scam artists--they will have no address with which to find you. (A page torn from a legal thriller?)
4. You ask, what if the Hokey Pokey is really what it's all about? Incredibly, the U.S. Supreme Court has ruled that bank records enjoy no privacy protection. That's right, none. They are considered property of the bank, You are not, however required to reveal your social security number when opening a non-interest bearing account, e.g. checking, debit, credit card. So, don't. You are only required to reveal your social security number to a bank when interest-bearing accounts are involved. This is because the bank must report to I.R.S., for tax purposes, on how much they paid you.
5. You can even out-con the con man. Follow the New Hampshire state motto: "Go away and leave us alone." Get yourself a post office box, then write, "Moved, left no forwarding address" on the face of every envelope that the postman tries to deliver to your home. That would certainly leave anyone trying to steal your identity hanging by a quickly-shrinking thread. This would be like giving a seeing-eye sled dog to a blind Eskimo..
These are just a few of the steps you can take to shore up your privacy. These steps will not totally obliterate the scam artist's view of your financial structure. But, it will hinder it to the point of nearly crippling him, leave him babbling to himself, wondering how to write zero in Roman numerals. Consultation with an expert attorney would undoubtedly reveal more avenues of privacy restoration.
If such preventive steps were universally adopted, it would be quite a blow to the scamsters. It would leave con men everywhere quaking in their Hummer SUVs and calling their analysts on their cell phones.
Thursday, August 16, 2007
A Fraud Lawsuit Under California Law
by: Michael Abney
The various ways a victim can be defrauded are as limitless as the bounds of human ingenuity. But under California law, wrongful actions are generally characterized as civil "fraud" only under one of the following legal theories:
1. Intentional Misrepresentation. Probably the most common type of fraud is a false statement. But not every false statement is fraudulent. The elements of a claim for intentional misrepresentation are:
a. An intentionally or recklessly false statement of fact. Not every false statement is a false statement of "fact." Statements of opinion generally are not actionable. Sales talk, or "puffing" ("This is the best location in the county!"), is generally not actionable. However, if the defendant claims to be an expert or there are other reasons to expect that the victim would rely upon the defendant’s opinion as a statement of "fact," an opinion may be treated by the court as a statement of fact. Also, a statement need not be made directly to the victim. For instance, if the defendant made the false statement to a third person with the expectation that the statement would be repeated to the victim, the victim may have a valid claim for fraudulent misrepresentation.
b. Intention to defraud. If a representation of fact was intentionally false and a material part of the transaction (e.g., "this house does not have flooding problems"), it is likely the false promise was made with the intention to defraud the victim.
c. Reasonable reliance upon the false statement. The victim must have actually relied upon the statement to change his or her position (e.g., the victim would not have purchased the house if he or she knew the truth). The false statement need not be the only reason the victim changed his or her position, but it must be at least part of the reason. Also, the victim’s reliance on the false statement must be reasonable. If the victim knew or should have known the statement was false, the victim did not reasonably rely. The sophistication of the victim will play a role in determining whether his or her reliance on the statement was reasonable; e.g., a sophisticated real estate investor’s reliance on a representation about the qualities of a house may not be reasonable while an unsophisticated buyer’s reliance may be. Even an unsophisticated victim, however, "may not put faith in representations which are preposterous, or which are shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth." Seeger v. Odell (1941) 18 Cal. 2d 409.
d. Resulting in damages. There must be measurable damages that were caused by the fraud. It is not enough that the victim was told a lie (e.g., "A famous movie star once slept in this house"); the victim must also be able to prove some type of damage resulted from the lie.
2. Negligent Misrepresentation. A claim for negligent misrepresentation is generally the same as a claim for intentional misrepresentation, except the victim must only prove the defendant did not have "a reasonable basis" to believe its statement of fact was true (as opposed to proving the defendant knew its statement was false). If the defendant’s false statement was both honestly made and based upon reasonable grounds, however, there is no claim. Punitive damages are not available for negligent misrepresentations.
3. Concealment. A claim for fraud may also arise if the defendant concealed or failed to disclose a material fact during a transaction, causing damage to the victim. The elements of a claim for fraudulent concealment are:
a. The defendant failed to disclose or concealed a material fact with an intent to defraud the victim.
b. The defendant had a duty to disclose. There is not always a duty to disclose facts during a transaction. If there is a duty, it generally arises in one of four different circumstances: (i) The defendant is in a "fiduciary relationship" (such as being a partner) with the victim; or (ii) The defendant took steps to hide important information from the victim (as opposed to simply failing to tell the victim); or (iii) The defendant disclosed some information to the victim, but the disclosed information is misleading unless more information is given; or (iv) The defendant is aware of key information and knows the victim is unlikely to discover that information. In addition, California laws may create a duty to disclose in certain transactions. For example, sellers of residential property in California generally are required to make written disclosures about the condition of the house.
c. The victim must have been unaware of the fact and would not have acted as he or she did if he or she knew of the fact.
d. The victim sustained damages as a result of the concealment.
4. False Promise. A claim of fraud may arise if a defendant entered into a contract and made promises that it never intended to perform. The elements of a false promise claim are:
a. The defendant made a promise.
b. The promise was important to the transaction.
c. At the time he or she made the promise, the defendant did not intend to perform it.
d. The defendant intended the victim to rely upon the promise.
e. The victim reasonably relied upon the promise.
f. The defendant did not perform the promise.
g. The victim was harmed as a result of defendant not carrying out his or her promise.
h. The victim’s reliance on the defendant’s promise was a substantial factor in causing the victim’s harm.
It is important to understand that a broken promise, alone, is not a sufficient basis for a fraud claim. More than a mere broken promise is required. The victim must also prove that the defendant did not intend to perform the promise at the time the promise was made. In practice, it is usually difficult to tell the difference between a broken promise and a promise made without an intention to perform. Courts generally look for circumstantial evidence to support a false promise claim (as opposed to a broken promise claim), such as the defendant broke its promise immediately after making it.
Characterization of a claim as fraud has many advantages to a victim; primarily, the victim may be able to recover punitive damages in addition to actual damages. Also, the measure of damages is generally more liberal under fraud and other "tort" theories, allowing victims a more complete recovery. But even if a wrongful action does not fall under the definition of "fraud," it still may lead to a valid legal claim. For instance, a broken promise - while not necessarily fraudulently - may still constitute a valid breach of contract claim. While punitive damages and emotional distress damages are generally not available for breach of contract in California, the victim still should be able to recover his or her monetary damages.
This article constitutes general information only and should not be relied upon as legal advice.
The various ways a victim can be defrauded are as limitless as the bounds of human ingenuity. But under California law, wrongful actions are generally characterized as civil "fraud" only under one of the following legal theories:
1. Intentional Misrepresentation. Probably the most common type of fraud is a false statement. But not every false statement is fraudulent. The elements of a claim for intentional misrepresentation are:
a. An intentionally or recklessly false statement of fact. Not every false statement is a false statement of "fact." Statements of opinion generally are not actionable. Sales talk, or "puffing" ("This is the best location in the county!"), is generally not actionable. However, if the defendant claims to be an expert or there are other reasons to expect that the victim would rely upon the defendant’s opinion as a statement of "fact," an opinion may be treated by the court as a statement of fact. Also, a statement need not be made directly to the victim. For instance, if the defendant made the false statement to a third person with the expectation that the statement would be repeated to the victim, the victim may have a valid claim for fraudulent misrepresentation.
b. Intention to defraud. If a representation of fact was intentionally false and a material part of the transaction (e.g., "this house does not have flooding problems"), it is likely the false promise was made with the intention to defraud the victim.
c. Reasonable reliance upon the false statement. The victim must have actually relied upon the statement to change his or her position (e.g., the victim would not have purchased the house if he or she knew the truth). The false statement need not be the only reason the victim changed his or her position, but it must be at least part of the reason. Also, the victim’s reliance on the false statement must be reasonable. If the victim knew or should have known the statement was false, the victim did not reasonably rely. The sophistication of the victim will play a role in determining whether his or her reliance on the statement was reasonable; e.g., a sophisticated real estate investor’s reliance on a representation about the qualities of a house may not be reasonable while an unsophisticated buyer’s reliance may be. Even an unsophisticated victim, however, "may not put faith in representations which are preposterous, or which are shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth." Seeger v. Odell (1941) 18 Cal. 2d 409.
d. Resulting in damages. There must be measurable damages that were caused by the fraud. It is not enough that the victim was told a lie (e.g., "A famous movie star once slept in this house"); the victim must also be able to prove some type of damage resulted from the lie.
2. Negligent Misrepresentation. A claim for negligent misrepresentation is generally the same as a claim for intentional misrepresentation, except the victim must only prove the defendant did not have "a reasonable basis" to believe its statement of fact was true (as opposed to proving the defendant knew its statement was false). If the defendant’s false statement was both honestly made and based upon reasonable grounds, however, there is no claim. Punitive damages are not available for negligent misrepresentations.
3. Concealment. A claim for fraud may also arise if the defendant concealed or failed to disclose a material fact during a transaction, causing damage to the victim. The elements of a claim for fraudulent concealment are:
a. The defendant failed to disclose or concealed a material fact with an intent to defraud the victim.
b. The defendant had a duty to disclose. There is not always a duty to disclose facts during a transaction. If there is a duty, it generally arises in one of four different circumstances: (i) The defendant is in a "fiduciary relationship" (such as being a partner) with the victim; or (ii) The defendant took steps to hide important information from the victim (as opposed to simply failing to tell the victim); or (iii) The defendant disclosed some information to the victim, but the disclosed information is misleading unless more information is given; or (iv) The defendant is aware of key information and knows the victim is unlikely to discover that information. In addition, California laws may create a duty to disclose in certain transactions. For example, sellers of residential property in California generally are required to make written disclosures about the condition of the house.
c. The victim must have been unaware of the fact and would not have acted as he or she did if he or she knew of the fact.
d. The victim sustained damages as a result of the concealment.
4. False Promise. A claim of fraud may arise if a defendant entered into a contract and made promises that it never intended to perform. The elements of a false promise claim are:
a. The defendant made a promise.
b. The promise was important to the transaction.
c. At the time he or she made the promise, the defendant did not intend to perform it.
d. The defendant intended the victim to rely upon the promise.
e. The victim reasonably relied upon the promise.
f. The defendant did not perform the promise.
g. The victim was harmed as a result of defendant not carrying out his or her promise.
h. The victim’s reliance on the defendant’s promise was a substantial factor in causing the victim’s harm.
It is important to understand that a broken promise, alone, is not a sufficient basis for a fraud claim. More than a mere broken promise is required. The victim must also prove that the defendant did not intend to perform the promise at the time the promise was made. In practice, it is usually difficult to tell the difference between a broken promise and a promise made without an intention to perform. Courts generally look for circumstantial evidence to support a false promise claim (as opposed to a broken promise claim), such as the defendant broke its promise immediately after making it.
Characterization of a claim as fraud has many advantages to a victim; primarily, the victim may be able to recover punitive damages in addition to actual damages. Also, the measure of damages is generally more liberal under fraud and other "tort" theories, allowing victims a more complete recovery. But even if a wrongful action does not fall under the definition of "fraud," it still may lead to a valid legal claim. For instance, a broken promise - while not necessarily fraudulently - may still constitute a valid breach of contract claim. While punitive damages and emotional distress damages are generally not available for breach of contract in California, the victim still should be able to recover his or her monetary damages.
This article constitutes general information only and should not be relied upon as legal advice.
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New York Divorces Lawyer
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Los Angeles Dui Lawyer
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The voice of the heart
Goes down for hearing taken back at the border with the administrative court of Paris. The deputy judge only sits in this room which blow seems too large. He asks his greffière to call the file following.
- “File number 07-123456, Mr I. against the prefect of police force”.
The president takes the file of Mr I. while a lawyer rises and beckoned with his customer to come to take seat at his sides. It is about an African of about thirty year, vêtu of bric and pitcher, clothing of second hand which an association found to him caritative, and with the face curiously serene compared to those twisted of anguish from other abroad whose future is played today.
The president briefly informs the business. Mr I. was controlled by the police force whereas it was momentary of a vehicle which had just roasted a red light. Placed in police custody, it was the subject of a prefectoral decree of renewed at border (APRF). The judge of freedoms and detention cancelled the procedure of interpellation bus as it was only momentary vehicle, the police force did not have any legal reason to control his identity. He was thus given in freedom, but that is without incidence on the decree of renewed at the border. Mr I. is Senegalese, of Casamance. He has been in France for five years, only. Its family remained in Senegal. It already asked papers, but they were refused to him.
Questioned on the reasons of its presence in France, it declared during the police custody (the procedure was cancelled in vain, she is produced in front of the administrative court, it is completely legal…) that it had promised in marriage one in its village, but it did not have enough good to be able to marry it and make it live with dignity as a good Moslem must do it. Then it came to France, where it works with the black in the building. Its employer, who is present in the room, explains that it made in vain steps so that it is regularized: the prefecture of Police force opposes the employment picture to him, saying that there is of the French to unemployment who could occupy the station of Mr I. the employer answered to the prefect that it would know liking to agree to him to communicate their name to him and addresses, because he has sought workmen in a continuous way for two years. Prefecture answered forever.
The judge calls on the lawyer, who raises desperate arguments: he disputes the legality of the delegation of signature of the signatory of the APRF (the prefecture of police force produces the decree of delegation of signature which is valid) and calls upon a disproportionate infringement of the right to a life private and family, but the argument does not hold: he has of the family in Senegal, it even promised in marriage one there. All that it has in its favour, they is five years of presence on the territory. But it is alone: it faithful to its is promised and lives like a monk. Its life, it is work, to rest in a room in a hearth, all that it can save being sent to its family in Senegal.
The judge, before closing the debates, asks Mr I. if it has something to add.
“Yes. ” known as Mr I, of a way posed. It is the first time that it speaks about the audience. Its lawyer even started.
The president says to him: “I listen to you”.
“I have been here for five years. I work, I do not disturb anybody, I do not make of evil to anybody. I would like that my been engaged can join me here, because I miss it. If not, when I gain enough money, I will turn over in Casamance, but it is hard over there”.
A silence. It begins again, of a voice this time a little more trembling.
“I know that France has a large heart. All that I ask him, it is of me there to make a small place”.
A long silence falls down on the courtroom.
The president ends up breaking it, while smiling sadly to Mr I.
“The business is put on of deliberated, the judgement will be returned at the end of the day”.
The evening, when I telephone the clerk's office to know my deliberated, I benefit from it to ask the greffière: “And in the file of Mr I.? It is the same audience… ”.
I hear a noise of keyboard of computer then the answer fall.
Rejected request.
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