What Is Elder Law? – Elder Law

People are living longer than earlier days. There are challenges that need to be met in different facets
of a growing population – these could range from medical, legal, ethical issues.Elder law is an emerging field in law practice that aims to focus
entirely on issues facing elders and seniors. Elderlaw is not a specific
section of the law. It gets its name from the population, or clientele it serves –
the older citizens.Practice of elder law amalgamates all of following areas and beyond:
preparing estate planning documents, pension plans, retirement planning,
evaluating social Security benefits. The extended areas of service include
consumer protection, ethical considerations, discrimination, Social Security
and Supplemental Security Income, Medicare, Medicaid, capacity issues,
guardianship and alternatives to guardianship,
elder abuse and neglect, adult protective services, nursing homes, long term care,
housing health-care decisions, end-of-life decisions, estate planning,
and grand parents’ rights.Elder law attorneys collaborate with a broad spectrum of professions
that are involved with older people – social workers, geriatricians,
financial planners, tax consultants, medical professionals, professional
caregivers etc.In addition, the elder law attorneys have to work closely with the
family members and be cognizant and sensitive to the personal
relationships of their client.Elder law professionals focus on the legal needs of the elderly and
use several legal tools and techniques to meet the goals and
objectives of the older client. It is different from traditional
estate planning in that the focus is more on planning for, and meeting
the contingencies of an extended lifetime – for instance the ethical
issues surrounding an incapacitated older person and the legal decisions to
be made by that person.The elder law attorney is a great resource for addressing the legal needs of
the older person.

Elder Law Trials – By Judge Or Jury? – Elder Law

Civil cases for elder law trials can be heard by a jury or non-jury (i.e., a judge). Which is better?Almost always, a trial by jury should be the preference of the elderly client’s attorney. Although the number of jurors who hear a case may vary from state to state, twelve persons typically comprise a jury. A jury of ordinary citizens is more likely to experience sympathy for an elderly client than would a single judge hearing the case. A judge may have heard thousands of cases before and, as a result, is more likely to be somewhat hardened at the individual acts that the elderly plaintiff has suffered.A jury, on the other hand, has not seen nor heard of such atrocities before, and may react more sympathetically than an experienced judge.It is almost always a dangerous proposition to place the decision-making authority (verdict or judgment) into the hands of just one person. A judge may have a host of personal issues that affect his or her judgment. Their father or mother may have been terrible to them while they were growing up, and those many dreadful experiences may alter their ability to judge the facts fairly.Where there are twelve jurors, the law requires that at least nine agree upon whether the defendant is liable. If at least nine jurors cannot agree, then the term “hung jury” applies and a mistrial will be found. If the elder-plaintiff desires to continue with his or her case, then a new trial will be required.Although these ordinary citizens may initially gripe and moan at the prospect of having to appear for jury duty (quite understandable), most of them who are actually selected as jurors and hear the case are quite pleased with the experience and insight that they received into the actual courtroom workings of the judicial process.This too, is in contrast to a judge who has been there and done that for twenty years and no longer sees the trial as a fresh experience and learning process. An old-time judge may have one goal: to get the case off his/her bench and reduce the caseload.In certain cases, the elderly plaintiff may not have the right to a jury trial. These are called equity claims where, for example, the elder is seeking to quiet title to a parcel of real property and wants the court to determine ownership rights. The elderly plaintiff may be asking the court to impose upon the defendant what is called a constructive trust, and return legal title to the plaintiff. This too, is a claim in equity and the law generally does not provide the right to a jury trial.In California though, even cases involving conservatorships can offer the right to a jury trial. A jury can be used to determine whether the elder needs a conservator to manage his/her finances. Although not often utilized, a jury trial can be held to decide this single issue. If a jury determines that a conservatorship is necessary, then their task is over and they will be dismissed. The case is then turned over to a judge who rules upon the remaining conservatorship issues.When the right to a jury trial exists, the smart tack is to take advantage of the reasonableness and common sense of twelve ordinary citizens. Usually, at least nine out of twelve will get it right.

Consulting An Elder Law Attorney Can Help You Be Comfortable In Your Old Age – Elder Law

Old age is something regarding which many people are in denial. They do not like to believe that they are going to get aged one day, though old age does slowly creep up on them. Such people usually do not plan for their later years and may have to face several legal and financial issues, along with the typical physical and emotional problems brought on by age.If you want to enjoy good quality of life even when you get old, it is necessary to plan in advance. It is best to consult an elder law attorney to make arrangements to tackle aging issues such as retaining independence, financial security and quality of life. These attorneys have an acute understanding of the special needs of the elderly and in-depth knowledge of the laws governing these needs and specialize in providing legal help to the seniors. Some issues on which their expert services can be beneficial are:Medical Care: When you get on in the years, your earning potential decreases while your medical needs increases. The government offers special programs to pay for the nursing care of the elderly with limited resources. The provisions and guidelines of such programs keep changing from time to time. An Elder Law attorney keeps abreast with the changes and guides you in planning judiciously for long-term care.Estate & Tax Planning: An Elder Law attorney can guide you in management of your tangible assets during life and their distribution upon death by drawing up wills, trusts, etc. You can also make suitable financial arrangements for your spouse’s care. The attorney can even give advice regarding business succession and tax planning.Disability Planning: Through living wills, living trusts and Durable Power of Attorney, the lawyer helps you delegate financial and healthcare decisions to your agent in case you get incapacitated, physically or mentally.Other Issues: There are several other issues an Elder Law attorney helps out with. These include advance care directive, senior care abuse, nursing home issues, employment & retirement matters, guardianship, housing issues, social security claims, etc.Every Elder Law attorney may not be an expert at all these services. If you wish to plan to secure your old age or you need advice to plan for your aged parents, you should search for an appropriate experienced lawyer based on your particular concerns. You can look up an online local business directory, ask referral from your family attorney or take help from agencies specializing in senior care. Interview all prospective lawyers, making sure that they are sufficiently experienced and reasonably priced before selecting the one you find most suitable.

Commonly Asked Questions of an Elder Law Attorney – Part III – Elder Law

What is Medicaid and how does it differ from Medicare? Medicare is a federal health insurance program for people age 65 or older, under age 65 with certain disabilities, and any age with End-Stage Renal Disease, meaning permanent kidney failure requiring dialysis or a kidney transplant. Most people get their Medicare health care coverage in one of two ways, the original Medicare Plan or the Managed Health Plan. Your costs vary depending on your plan, coverage, and the services you use.Medicare is divided into four parts. Part A covers hospital care, Part B covers physician and outpatient services. Part C is an HMO alternative that covers the same as Parts A and B. Part D is the prescription drug benefit. You can also purchase privately a Medigap or Medicare Supplement policy that fills in the gaps in Part A and B coverage.Medicare is a federal entitlement program, meaning both rich and poor alike are eligible for Medicare if they are over age 65 and are entitled to receive social security benefits or come under one of the previously mentioned exceptions. Even if you are not covered by social security, you may buy your way into the Medicare program. With reference to long-term care, Medicare covers only acute care in a hospital, medically necessary care in a nursing facility or at home. It should be noted that these benefits involve large co-pays and limited coverage.Medicaid is a federal and state program based on need with stringent financial eligibility requirements. Unlike Medicare, when dealing with long-term care, Medicaid covers custodial care in a nursing home. Custodial care includes assistance with eating, bathing, toileting, transferring from the bed to a chair, and dressing, which are what we refer to as activities of daily living.To qualify for Medicaid you must be a resident of the United States, who is either a citizen, a lawfully admitted alien, or otherwise permanently residing in the United States under color of law. You must be over age 65, blind or disabled to be eligible for Medicaid. In that Medicaid is administered by the individual states, each state handles Medicaid differently.The following discussion of Medicaid applies to residents of the State of New Jersey only. You must contact an Elder Law Attorney in your state in order to learn how Medicaid works in your state. The resource limits are $2,000 for an individual and $3,000 for a married couple when both apply for benefits. Under New Jersey’s medically needy program, the resource limit is increased to $4,000 for an individual and $6,000 for a married couple.Resources are cash and any other asset, including real or personal property that an individual can convert to cash. The key to eligibility is whether or not a resource is available. A resource is available when a person has a right to liquidate it. Unavailable resources are resources that the applicant cannot convert to cash. Only countable resources are considered in determining Medicaid eligibility. Noncountable assets include one automobile, the family home if it is occupied by the Medicaid applicant or the community spouse, property used in a trade or business, property used for self-support or employment, personal effects and household goods up to $2,000, wedding and engagement rings, medical devices, life insurance with a total face value of $1,500 or less, or term insurance, regardless of the value. Medicaid law provides for the pooling of the couple’s total resources and allows the community spouse to retain a community spouse resource allowance, which is a portion of the total assets, as a protection against impoverishment. Please keep in mind that even from the assets that are excluded, the Medicaid estate recovery unit may come back against the estate to recover payments made to a Medicaid recipient after the death of the recipient and their spouse, if they are married. Because of this pitfall is important to discuss these issues with a qualified elder law attorney who can properly advise you on the current Medicaid laws.For Medicaid eligibility, an individual must meet the income test as well. New Jersey has an income cap of 300 percent of the SSI benefit rate. The income of the Medicaid applicant is the only income that counts toward the cap. The income of the community spouse is not deemed to be available to the institutionalized spouse for the cost of care. The community spouse is also entitled to a monthly minimum maintenance needs allowance, which comes from the income of the institutionalized spouse’s income. As they say, please do not try this at home. You need to consult a qualified elder law attorney to advise you on Medicaid qualification as well as other long-term care issues.

Is Elder Law Getting in the Way of Elder Care? – Elder Law

Due to the fact that we must protect the elderly in care centers, convalescent homes, hospices, and while under supervision with in-home care we have many laws in place to help the elderly. These laws, rules, regulations, and licenses protect the elderly from abuse, which is far too common. Unfortunately, many of these laws require only a nurse to administer certain things to the elderly. Any violation can mean a facilities license will be pulled. All this makes sense on the surface.However, there are many cases where this is causing a rapid rise in costs for elder care due to these laws. Meaning many folks cannot afford the care and run through all their life’s savings, until they become dependent on the State to care for them; that means at the taxpayer’s expense. Run-away costs, regulations, and bureaucracy is effecting the availability of services. Thus, due to supply and demand this raises the prices of care to an insane cost.
 
That combined with law suits, fines and litigation is another double whammy and shock to the escalating costs of elder care due to the myriad of elder laws. In some cases, senior assisted living homes must have nurses on staff and available at all times to prevent breaking the law. Remember there is a severe shortages of nurses in the US and with 70 million baby boomers reaching that ripe old age, this problem will become worse.
 
With all the laws and lawsuits, nurses are being sued just like doctors were for malpractice. All the bad publicity and hype used during these lawsuits and the “A” would being used (abuse) is causing more laws to be put into place to further protect the elderly. It’s a vicious circle with no end in sight, it’s a huge problem and something must be done to fix it.

How to Effectively Use Powers of Attorney in Your Elder Law Plan – Elder Law

Powers of Attorney are key components of any elder law plan.  These legal documents provide for someone to make your important decisions when you can no longer make decisions due to incapacity.  In many ways, powers of attorney (POAs) can be more important than a will.  This article will examine several common types of POAs.  We will also look at how to use POAs as part of a well designed elder law plan.Kinds of Powers of Attorney
Financial (Durable) POA – This legal document provides for others to make decisions about your assets when you can’t.  For example, Indiana law provides for a durable POA to deal with real property, tangible personal property, retirement plans, banking transactions, business operations, insurance matters, gifting, litigation, family maintenance, benefits from military service, and estate (probate) issues.  Think of this document covering any decision other than healthcare decisions.
Health Care POA  -  This document is sometimes known, as in Indiana, as Health Care Representative Appointment or health care power of attorney.  This permits someone to make your healthcare decisions for you.  Most states, like Indiana, require the person making your decisions to try and find out what you want done or not done medically.  This is true even if you are incompetent.  The idea is that you should never completely lose control of your medical decisions.  There will be a duty to try to find out your wishes before anything is decided.  The value of this document is that your need medical decisions are not held up while try to figure out who needs to make your decisions.  With out this document, you would likely need to have someone appointed guardian over you.  This can be time consuming and expensive litigation.
Using Powers of Attorney In Your Elder Law PlanOne of the key uses of POAs is to avoid guardianship or conservatorship proceedings.  These legal proceedings can be both costly and time consuming.  A properly designed and executed elder law plan plans for when you can’t maker medical and financial decisions while you’re alive.  Well drafted powers of attorney provide you with the immediate ability to deal with all of your critical decisions regardless of your capacity to make decisions.   Another advantage of the POAs over guardianships, at least in Indiana, is that they can be designed to be very flexible to meet your specific needs.   They can be drafted to only be legally valid when you need them and not valid when you don’t.Durable and healthcare powers of attorney are important and complex legal documents.  Don’t be tempted to save money by using generic forms from hospitals, nursing homes, or the internet.  Competent legal counsel is needed to make sure the powers of attorney are properly designed and executed as part or your overall elder law plan.  Please don’t wait until it is too late. One of your most important choices is who will make your important decisions when you no longer can. Don’t let the court or others make this critical choice for you. Remember that not every attorney handles estate planning and elder law matters. Ask your attorney if he is a member of the National Academy of Elder Law Attorneys (naela.org) If you are missing any of these important elements, then consider contacting your elder law attorney to have your estate plan reviewed.

Deficit Reduction Act Changes the Way We Think About Medicaid – Nursing Homes – Elder Law

I’m still dumbfounded that Congress determined it was necessary to take away much of the Medicaid Planning that was available to the public.What is Medicaid you ask? Well, it’s complicated.This is a federal and state funded and state administered medical benefit program which can pay for the cost of the nursing home if certain asset and income tests are met.There are basically four ways to pay for nursing home care:1. Private Pay. This is the method many people are required to use at first. Quite simply, it means paying for the cost of a nursing home out of your own pocket. Unfortunately, with nursing home bills averaging between $4,000 and $4,500 per month in our area, few people can afford a long term stay in a nursing home.2. Long Term Care Insurance. If you are fortunate enough to have this type of coverage, it may go a long way toward paying the cost of the nursing home. Unfortunately, long term care insurance has only started to become popular in the last few years and most people facing a nursing home stay do not have this coverageThe first two methods of private pay (i.e. using your own funds) and long term care insurance are self-explanatory, our discussion will concentrate on Medicare and Medicaid.3. Medicare – This is the national health insurance program primarily for people 65 years of age and older, certain younger disabled people, and people with kidney failure. Medicare provides short term assistance with nursing home costs, but only if you meet the strict qualification rules.4. Medicaid – This is a federal and state funded and state administered medical benefit program which can pay for the cost of the nursing home if certain asset and income tests are met. Since the first two methods of private pay (i.e. using your own funds) and long term care insurance are self-explanatory, our discussion will concentrate on Medicare and Medicaid.Medicaid has traditionally been the way many people paid for long term stays in skilled nursing facilities. For instance, if a loved on is facing a nursing home stay due to an illness such as Alzheimer’s, Medicaid may pay for these costs. But the rules are much tougher now than they have ever been, due to changes in the law that occurred in 2006 under the Deficit Reduction Act (DRA)The main thing to note is that there are many ways to still qualify for Medicaid paid nursing home care, and many planning techniques that may still be available, even under these tough new laws. But you need a qualified Elder Law Attorney to help you navigate through the ever rising riptides.

Avail for Specialized Elderly Home Care Through Reliable Nursing Agencies – Elder Law

Thanks to our fast paced life, the need or wish to take care of our elders is steadily becoming a distant dream. This should not have been the case since our elders have seen us grow since our childhood and stood by us through thick and thin. So the least we can do for them is look after them when they need us the most. But worry not because there is still a silver lining in the cloud in the form of nursing agencies who have taken the online route. Now you can easily take care of your elders even through your busy schedule.Since our elders are prone to serious diseases like Alzheimer’s or Parkinson’s diseases, they need such nursing aides who have in depth knowledge about this kind of diseases so that they can take special care of them. Fortunately, many health services in Florida provide for such assistance as they specialize in providing home care for seniors for patients with Alzheimer’s disease. Many also provide caregivers to patients with special needs irrespective of any age. Considering the utter significance of their services, these nursing agencies hire nurses who are well qualified and come with laudable domain expertise in home health care or senior health care.Since they have opened their business online also, they need to maintain their credibility. This is why they have a thorough recruitment process in place which includes proper background checks and FBI background screenings. This ensures to a great extent that patients get services from a reliable and authentic source who, apart from imparting medical assistance, also spread love and companionship. Another interesting service which they provide besides home nursing is offering a helpful hand to the patient in bathing, dressing, eating, light housekeeping, laundry, shopping and running errands.There is also the option for hiring experience nurses who will do what the physician prescribes thus compiling with Florida State Laws for instance wound care and medication administration. The caregivers are also keen on providing Long-term Care, Worker’s Compensation and Short Term services. Though they are available around the clock, they have a special scheduling system where they can replace a caregiver at short notice. Other than this, they provide assistance while on vacation, and in hospitals and other assisted living facilities. Even after offering so much, they do not cost you much and charge a very reasonable price.
Almost every sector is fast catching up with advance technology and the senior home care sector is also not far behind. So if you are looking for hiring one, you do not have to go much further. This is because of the direct employer – employee association that seems to do away with much of the liability involved in traditional nurse staffing. Seniors usually are in discomfort if they are put up in a hospital. So if you hire someone who specializes in in-house health services, the patient can have the luxury to spend as much time at home surrounded by their near and dear ones.

Mortgage Fraud Schemes in South Carolina – A Review For SC Criminal Attorneys, Lawyers & Law Firms – Elder Law

Mortgage fraud is problem that has reached epidemic proportions in the United States (US) in general and in South Carolina (SC) in particular. The white collar practitioner should be aware that mortgage fraud is generally investigated by the United States Federal Bureau of Investigation (FBI), although other agencies routinely assist the FBI and/or take the lead in investigating a case. Some of the other federal agencies which investigate mortgage fraud crimes for criminal prosecution include, but are not limited to, the Internal Revenue Service-Criminal Investigative Division (IRS-CID), United States Postal Inspection Service (USPIS), U.S. Secret Service (USSS), U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Housing and Urban Development-Office of the Inspector General (HUD-OIG), Federal Deposit Insurance Corporation-Office of the Inspector General (FDIC-OIG), the Department of Veterans Affairs-Office of the Inspector General (DVA-OIG) and U.S. Bankruptcy Trustees.The FBI works extensively with the Financial Crimes Enforcement Network (FinCEN). FinCEN is a bureau of the United States Department of the Treasury, created in 1990, that collects and analyzes information about financial transactions in order to fight financial crimes, including mortgage fraud, money laundering and terrorist financing. The FinCEN network is a means of bringing people and information together to combat complex criminal financial transactions such as mortgage fraud and money laundering by implementing information sharing among law enforcement agencies and its other partners in the regulatory and financial communities. South Carolina lawyers can keep abreast of mortgage fraud developments by visiting the respective websites of the FBI and FinCEN.In South Carolina, mortgage fraud is generally prosecuted by federal prosecutors. The United States Attorney’s Office (USAO) and the U.S. Department of Justice’s (DOJ) Criminal Fraud Section handle the criminal prosecutions of mortgage fraud cases. The USAO in South Carolina has about 50 prosecutors in the state, and has offices in Charleston, Columbia, Florence, and Greenville. In the investigation stage, a person with possible knowledge or involvement in a mortgage fraud may be considered a witness, subject or target of the investigation. A subject is generally a person the prosecutor believes may have committed a mortgage fraud crime, whereas a target is a person the prosecutor believes has committed a crime such as mortgage fraud and the prosecutor has substantial evidence to support a criminal prosecution. Criminal prosecutions of mortgage fraud felony cases are usually initiated through the federal grand jury process. A federal grand jury consists of between 16 and 23 grand jurors who are presented evidence of alleged criminal activity by the federal prosecutors with the aid of law enforcement agents, usually FBI special agents. At least 12 members of the grand jury must vote in favor of an indictment charging mortgage fraud. South Carolina criminal defense lawyers are not allowed entry into the grand jury at any time, and prosecutors rarely fail to obtain an indictment after presentment of their case to the grand jury.Often targets of a mortgage fraud prosecution are invited by the prosecution to avail themselves of the grand jury process and to testify in front of the grand jury. Generally, a South Carolina criminal defense attorney should not allow a named target of a federal criminal mortgage fraud investigation to testify before the grand jury. Subjects and witnesses in a mortgage fraud prosecution are often subpoenaed by the prosecutors to testify before the grand jury. A criminal defense attorney should likewise generally advise a witness or subject to not testify if any part of the testimony would possibly incriminate the client. With respect to a federal mortgage fraud investigation, when a citizen receives a target letter, subject letter, or a subpoena to testify before the grand jury, or is contacted in person by a law enforcement officer such as an FBI special agent, a South Carolina criminal lawyer who is experienced in federal prosecutions should be consulted immediately. One of the biggest mistakes a mortgage fraud target, subject or witness can make is to testify before the grand jury or speak to criminal investigators prior to consulting with a criminal defense attorney. The 5th Amendment to the Constitution allows any person, including a target, subject or witness in a mortgage fraud prosecution, to not incriminate himself or herself. Interestingly, there is no 5th Amendment protection for a corporation. Obviously, if a defendant has been indicted or arrested for a federal mortgage fraud crime in South Carolina, an experienced SC mortgage fraud lawyer should be consulted immediately.An important practice tip for South Carolina attorneys representing clients who have decided to testify before the grand jury is to accompany the client to the grand jury court room. While not allowed in the grand jury proceeding itself, the attorney can wait just outside of the court room and the client is allowed to consult with the attorney for any question which is posed to the client by prosecutors or grand jurors. This is an effective way to help minimize any potential damaging statements by the client, and a great way to learn the focus of the prosecutor’s case. This approach makes it much easier to gain insights from the client as to the questions asked during the grand jury proceeding as opposed to debriefing the client after a sometimes long and grueling question and answer session which can last for hours.South Carolina white collar criminal attorneys need to be aware of the types of mortgage fraud that are prevalent in the state in order to effectively identify and represent clients who are involved in mortgage fraud activities. Consumers need to be aware of the variations of mortgage fraud so that they do not unwittingly become a part of a scheme to defraud a bank or federally backed lending institution. Federal mortgage fraud crimes in South Carolina are punishable by up to 30 years imprisonment in federal prison or $1,000,000 fine, or both. It is unlawful and fraudulent for a person to make a false statement regarding his or her income, assets, debt, or matters of identification, or to willfully overvalue any land or property, in a loan or credit application for the purpose of influencing in any way the action of a federally backed financial institution.Some of the applicable federal criminal statutes which may be charged in mortgage fraud indictments include, but are not limited to, the following:• 18 U.S.C. § 1001 – Statements or entries generally
• 18 U.S.C. § 1010 – HUD and Federal Housing Administration Transactions
• 18 U.S.C. § 1014 – Loan and credit applications generally
• 18 U.S.C. § 1028 – Fraud and related activity in connection with identification documents
• 18 U.S.C. § 1341 – Frauds and swindles by Mail
• 18 U.S.C. § 1342 – Fictitious name or address
• 18 U.S.C. § 1343 – Fraud by wire
• 18 U.S.C. § 1344 – Bank Fraud
• 18 U.S.C. § 2 – Aiding and Abetting
• 18 U.S.C. § 371 – Conspiracy
• 42 U.S.C. § 408(a) – False Social Security NumberWhile states experiencing the highest number of mortgage fraud cases are California, Florida, Georgia, Illinois, Indiana, Michigan, New York, Ohio, Texas, Utah, Arizona, Colorado, Maryland, Minnesota, Missouri, Nevada, North Carolina, Tennessee, and Virginia, the state of South Carolina has seen a huge rise in the number of mortgage fraud cases being prosecuted by the USAO, DOJ and FBI.In South Carolina, a disproportionate number of mortgage fraud cases have occurred in the coastal region. Some of the South Carolina counties with high concentrations of mortgage fraud or bank fraud cases include Horry County, Florence County, Georgetown County, Charleston County, Berkeley County, Dorchester County, Beaufort County, Colleton County and Jasper County. Some of the South Carolina cities with high concentrations of mortgage fraud or bank fraud cases include Little River, North Myrtle Beach, Myrtle Beach, Murrells Inlet, Georgetown, Awendaw, Mt. Pleasant, Charleston, North Charleston, James Island, Isle of Palms, Sullivan’s Island, Folly Beach, Kiawah Island, Hollywood, Ravenel, Beaufort, Bluffton and Hilton Head Island. The reason for the increased number of mortgage fraud and bank fraud criminal prosecutions in these areas is because large number of condominium, condotels, townhouse and similar real estate projects which proliferated in these areas. These real estate developments were popular in areas close to the waterfront and bank lenders were willing to loan money at a furious pace due to a perceived enormous demand.There are a wide variety of schemes, artifices and conspiracies to perpetrate mortgage frauds and band frauds with which the South Carolina white collar criminal defense lawyer and consumers must be familiar. Typical mortgage fraud schemes or conspiracies that have occurred in South Carolina and elsewhere throughout the United States include the following:Air Loans. The air loan mortgage fraud scheme is a loan obtained on a nonexistent property or for a nonexistent borrower. Professional scam artists often work together to create a fake borrower and a fake chain of title on a nonexistent property. They then obtain a title and property insurance binder to present to the bank. The scam artists often set up fake phone banks and mailboxes in order to create fake employment verifications and W-2s, home addresses and borrower telephone numbers. They may establish accounts for payments, and maintain custodial accounts for escrows. Phone banks are used to impersonate an employer, an appraiser, a credit agency, a law firm, an accountant, etc…, for bank verification purposes. The air loan scam artists obtain the loan proceeds and no property is ever bought or sold, and the bank is left with an unpaid loan that never had any collateral.Appraisal fraud. Appraisal fraud is often an integral part of most mortgage fraud scams and occurs when a dishonest appraiser fraudulently appraises a property by inflating its value. In most cases, after the seller receives the closing proceeds, he will pay a kickback to the appraiser as a quid pro quo for the fake appraisal. In most cases, the borrower doesn’t make any loan payments and the house or property goes into foreclosure.Equity Skimming. In an equity skimming mortgage fraud scheme, an investor often uses a straw buyer, false income documents, and false credit reports to obtain a mortgage loan in the straw buyer’s name. After the closing, the straw buyer signs the property over to the investor in a quit claim deed which relinquishes all rights to the property and provides no guaranty to title. The investor does not make any mortgage payments, and rents the property until foreclosure takes place several months later. Equity skimming also occurs when a scam artist purchases a residential property whose owner is in default on his mortgage and/or his real estate taxes, and then diverts rental income from the property for personal gain and does not apply this rental income toward mortgage payments, the payment of taxes and other property-related expenses.Flipping. A flipping scheme occurs when the seller intentionally misrepresents the value of a property in order to induce a buyer’s purchase. Flipping mortgage fraud schemes usually involve a fraudulent appraisal and a grossly inflated sales price.Foreclosure schemes. Foreclosure scheme scam artists prey on people with mounting financial problems that that place them in danger of losing their home. Homeowners in the early stages of foreclosure may be contacted by a fraudster who represents to the homeowner that he can get rid of his debt and save his house for an upfront fee, which the scam artist takes and then disappears. In a similar foreclosure scheme, Homeowners are approached by a scam artist who offers to help them refinance the loan. The homeowners are fraudulently induced to sign so-called “refinance” documents only to later find out that they actually transferred title to the house to the fraudster and then face eviction.Nominee Loans/Straw buyers. One of the most frequent types of mortgage fraud occurs when a “straw buyer” is used to hide the identity of the true borrower who would not qualify for the mortgage. The straw buyer or nominee buyer generally has good credit. The scam artist usually fills out the loan application for the straw buyer, and falsifies the income and net worth of the straw buyer in order to qualify for the loan. These fraud scams were popularized with the advent of the “stated income” loans which did not require a borrower to prove his true income and net worth – the bank just believed the income and net worth that was “stated” on the loan application. Straw buyers are often duped into thinking that they’re investing in real estate that will be rented out, with the rental payments paying the mortgage, and are sometime paid a nominal fee outside of closing. In most case, no payments are made and the lender forecloses on the loan. Sometimes straw buyers are actually in on the scam and are getting a cut of the proceeds.Silent Second. In the silent second mortgage fraud scheme, the buyer borrows the down payment for the purchase of the property from the seller through the execution of a second mortgage which is not disclosed to the lending bank. The lending bank is fraudulently led to believe that the borrower has invested his own money for the down payment, when in fact, it is borrowed. The second mortgage is generally not recorded to further conceal its status from the primary lending bank.A mortgage fraud is usually reported to the FBI by the financial institution upon which the fraud has been committed. Pursuant to the Bank Secrecy Act of 1970 (BSA), a bank must file a Suspicious Activity Report (SAR) with FinCEN if a customer’s actions indicate that the customer is laundering money or otherwise violating a federal criminal law such as committing mortgage fraud. See 31 C.F.R. § 103.18(a). A bank is required to file a SAR no later than 30 calendar days after the date of initial detection by the bank of facts that may constitute a basis for filing a SAR, unless no suspect was initially identified on the date of the detection, in which case the bank has up to 60 days to file the SAR. See 31 C.F.R. § 103.18(b). Once FinCEN has analyzed the information contained in the SAR, if a criminal activity is found to have occurred, then the case is turned over to the FBI and the DOJ or AUSO for investigation and prosecution. The rise in FBI SARs reports involving mortgage fraud went from approximately 2,000 in 1996 to over 25,000 in 2005. Of those 2005 SARs reports, 20,000 of involved borrower fraud, approximately 7,000 involved broker fraud, and approximately 2,000 involved appraiser fraud.The FBI has identified a number of indicators of mortgage fraud of which the South Carolina criminal white collar lawyer needs to be aware. These include inflated appraisals or the exclusive use of one appraiser, increased commissions or bonuses for brokers and appraisers, bonuses paid (outside or at settlement) for fee-based services, higher than customary fees, falsifications on loan applications, explanations to buyers on how to falsify the mortgage application, requests for borrowers to sign a blank loan application, fake supporting loan documentation, requests to sign blank employee forms, bank forms or other forms, purchase loans which are disguised as refinance loans, investors who are guaranteed a re-purchase of the property, investors who are paid a fixed percentage to sell or flip a property, and when multiple “Holding Companies” are used to increase property values.One of the first and biggest South Carolina mortgage fraud prosecutions occurred in the Charleston Division in the 1990′s. It involved nominee borrowers and straw loans made by Citadel Federal Saving and Loan. Over 10 straw purchasers were enticed into the real estate loans by getting paid fees for signing up for the loans. They did not put up any of their own money as part of the deal and when the loans went sour the bank was left with properties that were upside down, that is, the real estate was worth less the the amount of the loan. Some bank insiders were part of the scheme and got convicted for their respective roles.The range of defendants that a SC criminal lawyer will represent in a typical mortgage fraud case may include straw borrowers or nominee borrowers, real estate agents, developers, appraisers, mortgage brokers, and sometimes even closing attorneys and bankers. Bankers often get involved in mortgage fraud scams because they are receiving kickbacks from the borrowers or are paid bonuses for the volume of loans made and thus ignore proper banking loan requirements and protocols in order to make more money. Close scrutiny should be given to bank loan applications, appraisals, HUD-1 closing statements, borrower’s W-2 and tax returns when analyzing a potential mortgage fraud case for a potential client.Federal judges who impose sentences for mortgage fraud normally rely upon the United States Sentencing Guidelines, which are now advisory as a result of the U.S. v. Booker case, when determining a sentence. A federal court calculates a particular guideline range by assessing a defendant’s criminal history, the applicable base offense level, and the amount of the actual or intended loss. Section 2B1.1 of the USSG sets forth a loss table which increases the base offense level according to the amount of money involved in the mortgage fraud. Generally, the more money which is lost in a mortgage fraud scam, the greater the sentence the defendant receives. In some cases, a defendant may be subjected to sentencing enhancements which means the defendant receives a greater sentence. A defendant may receive an enhancement for the role in the offense if the court determines that the defendant was an organizer, supervisor, or a recruiter, or used a sophisticated means to facilitate a crime, abused a position a trust, or targeted a vulnerable victim such as a disabled or elderly person. However, federal judges now have wide latitude for imposing a sentence because they must consider the broad statutory factors set forth in 18 U.S.C. 3553(a)which include the nature and circumstances of the offense and the history and characteristics of the defendant, the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, the need to afford adequate deterrence to criminal conduct, the need to protect the public from further crimes of the defendant, the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner, the kinds of sentences available, the sentence recommended by the Sentencing Guidelines and any applicable guidelines or policy statement therein, the need to avoid sentence disparities, and the need for restitution.There are some important strategic decisions which need to be made for the defendant who has been charged or indicted for mortgage fraud. The defendant and his lawyer should seriously consider the consequences of pleading guilty if he has in fact committed the crime. A mortgage fraud defendant can receive up to a 3 level downward departure for pleading guilty. A criminal lawyer representing a mortgage fraud defendant can also file a motion for a downward departure and/or a motion for a variance and argue factors to the court in support of an additional decrease in a defendant’s sentence. The mortgage fraud defendant’s criminal attorney should closely scrutinize the circumstances of the case and the defendant’s background and criminal history in order to help minimize the amount of time to be served. A valuable tip for an attorney representing a criminal mortgage fraud defendant in South Carolina is to consider mitigating factors such as disparate sentences, 5K departures for cooperation, aberrant behavior, property values, family ties, extraordinary rehabilitation, diminished mental capacity, extraordinary restitution should be considered as possible justifications for a lesser sentence.A white collar criminal defense attorney in South Carolina must have an understanding of the basics of the mortgage fraud in order to adequately represent clients who have been charged or indicted with mortgage fraud violations. Recognizing the difference between the status of being a target, subject or witness can have important consequences in how a case is handled. A white collar bank fraud or mortgage fraud criminal conviction can have life altering consequences for those defendants convicted of the same. A defendant who is charged or indicted with the federal crime of mortgage fraud should consult with a SC criminal lawyer who is knowledgeable about the different types of these scams, how the scams are carried out, the law enforcement investigatory process, the grand jury process, substantive law regarding mortgage fraud, the applicable federal sentencing guidelines and approaches available to minimize a defendant’s potential sentence.© 2010 Joseph P. Griffith, Jr.

Life – Law of Heaven – Elder Law

There are law on Earth and law in Heaven. The law in Heaven never changes but the law of man differs from country to country and it changes with time. In the practice of Tao, we have received exhortations occasionally from Heaven to remind us of how to live a righteous life and do not do any wrong. Heaven also sometimes shows us the manifestations of Heavenly beings and the suffering souls who had done wrong in life and under punishment in the temple of Tao of Heaven. Let’s see what the law of Heaven says:1] The law of Heaven is strict and demanding, the law of karma is even more severe.2] The law of Heaven is without mercy, the law of karma is even more merciless.3] The law of Heaven is frightening, the law of karma is even more frightening.4] The law of Heaven is fair and just, the law of karma is even fairer and justified.The advice from Heaven says:1] Human beings should be like a child with a sincere and true heart to treat one another.2] Regardless of a person’s citizenship, race and religion, we should learn to respect, love and care for one another.3] Do not ask for selfish gains and rely heavily on comfortable materials.4] Do not waste the natural resources intentionally.5] Do not destroy the natural habitat of our environment.6] Do not invoke any war excuses. This is indeed sorrowful. We encourage all of you as leaders to inculcate a heart of compassion and stop all man-made disasters from happening. Only in this way can human beings live in a harmony world.Talking about heart, this is the advice from Heaven:1] If you have a child-like nature, hold on to it firmly as it is in the beginning to the end.2] If you have a heart of sincerity and determination, do not succumb to any failures in life.3] If you are a man of wisdom, you can solve problems uprightly without delusions.4] If you have a benevolent and compassionate heart, you will have the virtue of compassion indefinitely.5] If you have a brave heart, you can defeat all demons.6] If you are a truly wise one, there will be no more fighting and quarrels anymore.7] If you have a heart of ease, there is nothing to be arrogant about.8] If you have a heart of diligence, you can run fast and far in the right directions.9] If you have a heart of compassion, serve the Buddha’s Temple earnestly through propagation.10] If you have a heart of gratitude, you will not forget Lao Mu (God) completely.11] If you have a calm and quiet heart, you will not have any worries.12] If you have a happy heart, you will be carefree and in freedom.Bodhisattva is a holy being who has transcended life and death and lived in the Highest Heaven called “Li Tien” in Chinese. This is the heart of a Bodhisattva according to Heaven:1] The Heart of Bodhisattva is the heart of Father who is venerate and saintly.2] The heart of Bodhisattva is the heart of Mother who is truthful in her feelings.3] The heart of Bodhisattva is the heart of Brother who cares for the younger brothers and sisters.4] The heart of Bodhisattva is the heart of Sister who dotes on the younger brothers and sisters.5] The heart of Bodhisattva is the heart of the younger brother who respects all the elderly.6] The heart of Bodhisattva is the heart of the younger sister who respects all the elder sisters and brothers.7] The heart of Bodhisattva is the heart of friends who respect one another.8] The heart of Bodhisattva is the heart of husbands and wives who respect one another sincerely.9] The heart of Bodhisattva is the heart of all righteous men who follow the teachings of benevolence and righteousness.10] The heart of Bodhisattva is the heart of fathers and sons who stay in a family bliss and harmony.11] The heart of Bodhisattva is the heart of mothers and sons who evince to sing in harmony.12] The heart of Bodhisattva is the heart of the Baptists who work ceaselessly with fidelity for all sentient beings.13] The heart of Bodhisattva is the heart of the Temple’s owners who succeed in the Tao’s mission at the forefront of their mind.14] The heart of Bodhisattva is the heart of the Temple’s speakers who have ascended to a higher level.15] The heart of Bodhisattva is the heart of the Temple’s entourage and helpers who are united in its duty.16] The heart of Bodhisattva is the heart of the three oracles who are always calm and quiet. (The three oracles are mediums used by Heaven to communicate with human)17] The heart of Bodhisattva is the heart of the disciples and the Great Teachers who shared the common views and thoughts.18] The heart of Bodhisattva is the heart of the children with Lao Mu (God) who respect and greet one another19] The heart of Bodhisattva is the heart of the children with Lao Mu (God) who have promised to meet again in the Heavenly Kingdom.Author: TA Chew