FRAUD LITIGATION
Law office of George M. Halimi is involved in litigation pertaining to living trusts, wills, deeds, deeds of trust, or any document for transfer of interest in a real property or placing a lien on the real property.
A living trust, a will, a deed, or a deed of trust may be contested and declared void by a court if the person signing the document was defrauded, and the disposition of his or her assets has been affected. In addition, California Civil Code §1709 states that “one who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” The defrauded party, however, must choose between voiding the document or obtaining damages against the person committing fraud.
Generally, any document for transfer of interest in a real property, affecting interest in a real property, or for placing a lien on the real property, is declared void by a court if the owner of property lacks mental capacity, or has been unduly influenced for signing the document. To establish fraud, however, it is not necessary to show that the affected party had diminished capacity. Rather, to prove fraud against the affected party, the followings must be proven:
1. Misrepresentation of facts to the affected party;
2. With the knowledge of falsity of facts by the person giving information to the affected party;
3. Information is given to the affected party with the intent to defraud him or her;
4. Justifiable reliance on the information by the affected party; and
5. Damages are resulted from the misrepresentation.
An affected party claiming damages has the burden of proof to show that he or she was defrauded. However, the burden of proof may shift to the party that has benefited from the transfer of title to property, benefited from the living trust, benefited from the will, or benefited by placing a lien against the property, if the following is shown:
1. There was a confidential relationship between the affected party and the person allegedly influenced the affected party
2. The person actively participated in actual preparation or execution of the transfer of title, creation of living trust or will of decedent, or placing a lien document against the real property; and
3. The person profited from the document beyond his or her normal share of benefit.
California Civil Code §3333 allows the defrauded party to recover damages in an amount that would compensate the defrauded party for all the detriment proximately caused by the fraud whether or not it could have been anticipated. California Civil Code §3343 determines the amount of recovered damages. In addition to recovery of damages, the party that has been defrauded may recover punitive damages if the fraud was intentional. A judgment based on an intentional fraud is not dischargeable in bankruptcy.
If the defrauded party is an elderly person, the right of defrauded party may also be raised in the complaint for elder abuse. In additional to the compensatory damages, an elderly defrauded person may have additional rights for recovery of damages, recovery of punitive damages, and recovery of attorneys’ fees.
California Code of Civil Procedure §338 sets the statute of limitations for cause of action based upon fraud for three years. However, the cause of action does not accrue, and the limitation period does not commence, until discovery of the facts that constitute fraud.
Duress and menace are other factors for voiding a transfer of real property, a lien document, the creation of living trust, or the creation of a will. Similar to fraud, a document may be declared void by a court if the signing of document is as the result of duress or menace against the owner.
Pursuant Civil Code §1569, duress may consist of one of the followings:
1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife;
2. Unlawful detention of the property of any such person; or
3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive.
Menace, on the other hand, may consist of treat of duress or of unlawful act and violent injury to the party, to party’s immediate family, to party’s property, or to party’s character.
For more information call us at (310)553-5562.
Law office of George M. Halimi is involved in litigation pertaining to living trusts, wills, deeds, deeds of trust, or any document for transfer of interest in a real property or placing a lien on the real property.
A living trust, a will, a deed, or a deed of trust may be contested and declared void by a court if the person signing the document was defrauded, and the disposition of his or her assets has been affected. In addition, California Civil Code §1709 states that “one who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” The defrauded party, however, must choose between voiding the document or obtaining damages against the person committing fraud.
Generally, any document for transfer of interest in a real property, affecting interest in a real property, or for placing a lien on the real property, is declared void by a court if the owner of property lacks mental capacity, or has been unduly influenced for signing the document. To establish fraud, however, it is not necessary to show that the affected party had diminished capacity. Rather, to prove fraud against the affected party, the followings must be proven:
1. Misrepresentation of facts to the affected party;
2. With the knowledge of falsity of facts by the person giving information to the affected party;
3. Information is given to the affected party with the intent to defraud him or her;
4. Justifiable reliance on the information by the affected party; and
5. Damages are resulted from the misrepresentation.
An affected party claiming damages has the burden of proof to show that he or she was defrauded. However, the burden of proof may shift to the party that has benefited from the transfer of title to property, benefited from the living trust, benefited from the will, or benefited by placing a lien against the property, if the following is shown:
1. There was a confidential relationship between the affected party and the person allegedly influenced the affected party
2. The person actively participated in actual preparation or execution of the transfer of title, creation of living trust or will of decedent, or placing a lien document against the real property; and
3. The person profited from the document beyond his or her normal share of benefit.
California Civil Code §3333 allows the defrauded party to recover damages in an amount that would compensate the defrauded party for all the detriment proximately caused by the fraud whether or not it could have been anticipated. California Civil Code §3343 determines the amount of recovered damages. In addition to recovery of damages, the party that has been defrauded may recover punitive damages if the fraud was intentional. A judgment based on an intentional fraud is not dischargeable in bankruptcy.
If the defrauded party is an elderly person, the right of defrauded party may also be raised in the complaint for elder abuse. In additional to the compensatory damages, an elderly defrauded person may have additional rights for recovery of damages, recovery of punitive damages, and recovery of attorneys’ fees.
California Code of Civil Procedure §338 sets the statute of limitations for cause of action based upon fraud for three years. However, the cause of action does not accrue, and the limitation period does not commence, until discovery of the facts that constitute fraud.
Duress and menace are other factors for voiding a transfer of real property, a lien document, the creation of living trust, or the creation of a will. Similar to fraud, a document may be declared void by a court if the signing of document is as the result of duress or menace against the owner.
Pursuant Civil Code §1569, duress may consist of one of the followings:
1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife;
2. Unlawful detention of the property of any such person; or
3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive.
Menace, on the other hand, may consist of treat of duress or of unlawful act and violent injury to the party, to party’s immediate family, to party’s property, or to party’s character.
For more information call us at (310)553-5562.