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Churning: Financial Abuse of the Elderly in the Insurance Context

July 21, 2017

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Standing to Assert Financial Elder Abuse When Your Company Has Been Wronged

July 19, 2017

 

The California Court of Appeal recently ruled, in Hilliard v. Harbour (2017, Case No. A146330), that an elderly person whose companies had borrowed money from Wells Fargo Bank and whose companies had allegedly been defrauded and otherwise wronged by the bank did not himself have standing to sue for financial elder abuse.

 

Stated otherwise, where the "victim" of the wrongdoing is an entity, not an individual elderly person, the senior is NOT able to file a financial elder abuse lawsuit against the wrongdoer (although he or she may have some other personal claims to assert). In this example, only the entity can sue and entities are not entitled to assert claims for financial elder abuse.

 

The Court of Appeal sided with the bank and concluded that the elderly plaintiff in Hillard was suing derivatively (i.e., in his capacity as a shareholder of his victimized companies). Under such circumstances, the elderly plaintiff was unable to assert a direct claim for financial elder abuse.

 

As explained by the Court of Appeal:

 

"[The senior plaintiff's] circular argument ... simply ignores the obvious fact that his claim does not originate in circumstances independent of his status as a shareholder in the Companies, and his claim therefore cannot be deemed personal."  

 

"[Plaintiff] created the Companies as an LLC in order to limit his liability; there is no policy reason to permit him to enjoy the benefits of that limitation without accepting the concomitant burdens it entails."

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