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December 18, 2014

Car Dealer Motors

One Sansome

San Francisco, CA 94111

Attn: Legal Department

VIA US MAIL AND FACSIMILE (XXX) XXX-XXXX

Re: XXXXXXXXXX predatory practices / financial elder abuse.

Dear General Counsel:

Please be advised that my office has been retained by Mr. XXXXXX, a California senior citizen (over the age of 65 at all times relevant to the following). Mr. XXXXX recently visited your auto dealership, and was pressured to purchase a 2015 Hyundai Sonata vehicle, along with “all the trimmings” (ex. $7,763,00 worth of add-ons). See attached Exhibit “A.”

Mr. XXXXXXX is on a fixed income, and yet was steered into a 72-month financing contract at nearly 7% (despite his 800 FICO score) and left with a car payment in excess of $500 per month. Shockingly, although he had a trade worth AT LEAST $3,600 (even assuming the car was in “fair condition” – See Exhibit “B” for a printout from Bluebook.com), and which we believe was worth over $4,000, my Client received only $200 for the trade. You can barely buy a bicycle or a skateboard for $200. The car had a warranty and was owned free and clear. This is unconscionable, malicious, reckless, extremely shocking and done in bad faith.

In short, my client was “socked away” by your dealership and he is prepared to tell his story on social media and to any local press that might be interested in the story.

California Financial Elder Abuse applies to Car Dealerships

In California, elders over 65 are considered a protected class. Taking money or property in bad faith is considered an act of financial elder abuse.The substantive law of elder abuse provides that financial abuse of an elder occurs when any person or entity takes, secretes, appropriates, or retains real or personal property of an elder adult to a wrongful use or with an intent to defraud, or both.

A wrongful use is defined as taking, secreting, appropriating, or retaining property in bad faith. (Welf. & Inst.Code, § 15610.30.). See Teselle v. McLoughlin, 173 Cal. App. 4th 156, 174, 92 Cal. Rptr. 3d 696, 712 (2009). California Welf. & Inst.C. § 15610.30(b) provides that a person or entity “shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity … knew or should have known that this conduct is likely to be harmful to the elder or dependent adult” (emphasis added).

In analyzing the facts of this case, the transaction taken as a whole was unconscionable. Putting the senior away into a payment he cannot afford to repay on his limited income, and to “steal” his trade by givinh him only $200 for a car worth approximately $4,000 means that my Client was clipped for approximately $3,800, plus interest.

Damages under the California Financial Elder Abuse Statutes

Where it is proven by clear and convincing evidence that the defendant was guilty of recklessness, oppression, fraud, or malice in the commission of physicalabuse, neglect, or financial abuse against an elderly or dependent adult, the following rules apply:

(a) The court must award to the plaintiff reasonable attorneys' fees and costs, including reasonable fees for the services of a conservator, if any, devoted to the litigation of the action. (Welf.C. 15657(a).) (See ARA Living Centers - Pac. v. Superior Court (1993) 18 C.A.4th 1556, 1562, 23 C.R.2d 224. See Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771, 780, 86 P.3d 290, 294 (2004)

(d) The standards set forth in C.C. 3294(b) regarding the imposition of punitive damages on an employer for the acts of an employee, i.e., advance knowledge of the employee's unfitness and a conscious disregard of the rights of others or authorization or ratification of the wrongful conduct, must be satisfied before damages or attorneys' fees may be imposed against an employer. (Welf.C. 15657(c).) (See Marron v. Superior Court (2003) 108 C.A.4th 1049, 1067, 134 C.R.2d 358.

“In order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. (Compare Welf. & Inst.Code, § 15657 [requiring ‘clear and convincing evidence that a defendant is liable for’ elder abuse and ‘has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse’] with Civ.Code, § 3294, subd. (a) [requiring ‘clear and convincing evidence’ that the defendant has been guilty of oppression, fraud, or malice].) Accordingly, that plaintiffs in an Elder Abuse Act action may, on appropriate proof (Civ.Code, § 3294, subd. (a)), recover punitive damages entails no danger directly analogous to the danger that exists when ‘ “punitive damages may be awarded on what is traditionally considered a negligence cause of action.” ’ (Central Pathology, supra, 3 Cal.4th at p. 190, 10 Cal.Rptr.2d 208, 832 P.2d 924).” (Covenant Care, supra, 32 Cal.4th at p. 789, 11 Cal.Rptr.3d 222, 86 P.3d 290.). See Country Villa Claremont Healthcare Ctr., Inc. v. Superior Court, 120 Cal. App. 4th 426, 432-33, 15 Cal. Rptr. 3d 315, 319-20 (2004).

Under these statutory sections, it is clear that given the malicious conduct in stealing Defendants trade and selling him products that he does not need, especially given his fixed income (Exhibit “A” showing the $7,700 in add-on products), which evidences with clear and convincing evidence and taking advantage of my Client for the sole purpose of personal gain and to convert my Clients money to the wrongful use of their own.

Demand to settle and resolve this dispute

Given the foregoing steering of my client into a car he could not afford on his fixed income, them selling him nearly $7,700 in goods he did not need or want, and to finance him into a 7 year financing contract at nearly 5%, and then stealing his trade for $200, when it was clearly worth at a minimum, even $3,5000 (See Exhibit “B”).

DAMAGES

  1. True value of trade in $4,000 – what dealer paid ($200) = $3,800 taking of property in bad faith). Treble/punitive damages (x3) = $11,400 damages
  2. Attorney fees (to date attorney fees incurred are $600)
  3. Other damages reserved for trial

______

TOTAL DAMAGES SOUGHT = $12,000 <this is the amount we are willing to settle>

This is hereby our good faith demand to settle this dispute. We are willing to give you 5 days to consider this offer, and if agreeable please set forth your response in writing. Upon receipt of settlement funds, a written agreement will be executed by all parties putting this case to rest with extensive civil litigation being required.

We hereby request a response to this legal demand letter, and if no request is forthcoming, we will be filing the appropriate financial elder abuse lawsuit against the auto dealership, and relevant parties in the Appropriate Legal venue. Deadline for response to this letter is December 26, 2014 at 5 p.m.

In the meantime, I am also requesting the following documents be provided my office:

  1. Copy of loan application signed by my client;
  1. Copy of all closing documents my client was given at the time the auto transaction closed.
  1. Copy of the entire transaction file, including any four square worksheets that were used in the purchase,
  1. Copy of all finance file.
  1. I would like to know to whom the loan was sold.
  1. Copy of any financial power of attorney forms you obtained from the buyer.
  1. Any evidence as to how you counseled and advised my Client

Please forward this material to:

The Law Offices of XXXXXXX.

One Sansome

San Francisco, CA 94111

We look forward to your anticipated cooperation to this matter. Should you wish to respond I can be located at (XXX) XXX-XXXXX.

Very truly yours

XXXXXXXXXXX, Esq.

Encl: Exhibit A-B