ANSWER TO CLAIM
AAA ARBITRATION CLEMENT V. BARRON ROSS INC.
According to Sept.25, 2013 article by Barbara J. Gage, Judith Tobin and Darshak Sanghavi “Disabled Americans Facing Ruinous Costs of Long-Term Care Got No New Answers from a Blue-Ribbon Federal Commission Last Week. Where Do We Go from Here?”, Many young people and seniors mistakenly believe that long-term care costs, such as home-based health care or a nursing home, will be covered by Medicare or other insurance. Unfortunately, after exhausting short-term “post acute” care benefits (typically lasting 1-2 months), such disabled individuals are on their own.
The costs are ruinous to most of the 11 million Americans getting long term care, of whom roughly half are under 65 years old. According to this AARP estimator, for example, two years of nursing home care in the Washington DC area runs almost $200,000, and a full time home health aid would require $80,000.
How do people pay for it? A lucky few have the savings to pay out of pocket or are some of the 3 percent of people who can afford long term care insurance. But most everyone burns through their savings, goes broke, and ends up qualifying for Medicaid—a process euphemistically called “spending down.” At that point, Medicaid kicks in the money and as a result, today pays roughly two-thirds of all long-term care costs totaling over $200 billion yearly. This is a huge cost—almost four times the annual cost of Medicare’s prescription drug benefit.
Here is a summary of a study done by the National Institutes of Health:
62% of bankruptcies are caused by medical costs
90% of medical debts are higher than $5,000
75% of the bankrupt families had health insurance that did not cover the medical costs
Most of the people with medical debts are well educated and own a home
From 2001 to 2007, the chances that a bankruptcy will be caused by medical costs have gone up by 49%
The defendant in this arbitration, Barron Ross Inc. is a company that for fifteen years has provided Californian with services that have prevented these same people from being ruined by long-term health care costs. It has provided a valuable, underutilized service in guiding Californians through the process in which they protect their assets.
Along comes Major & Fox, a consumer rights law firm out of San Diego, California whose common connection with Barron Ross Inc. (“BR”) relates to interactions that firm had with a disbarred Attorney who in 2006 worked with BR . Prior to that BR had not worked with Walker since 1999. Walker is not a named party in this arbitration.
Walker is a controversial figure, who was subject to investigation by the Attorney General, (which resulted in no criminal charges and a stipulated injunction) and also a 2011 lawsuit by Mark Redmon with Attorneys Against Abuse of Elders of Sacramento, and Lawrence Salisbury with Majors & Fox of San Diego. Walker was not disbarred for elder abuse, as claimants appear to imply, but for declaring bankruptcy and failing to perform services for his clients after receiving payment. As further investigation reveals, this bears no relationship to BR whatsoever, other than to create guilt by association for conduct by a third-party who was not even held liable for the alleged misconduct claimants speculate upon.
Dennis J. Clement (“Mr. Clement”) and Helen B. Clement (“Mrs. Clement”) (collectively hereinafter referred to as “Claimants”) have filed arbitration, at first seeking class certification , which does nothing to advance the consumer rights of Californians but instead vilifies and unfairly maligns a business who provides valuable services.
Defendant Barron Ross Inc. and Edwin Griffin have done none of the things that claimants have accused them of, and ask that claimants take nothing by way of their claim. Defendants inflated claims have simply created unnecessary expenses on the part of Barron Ross Inc.
Claimants long-winded claim boils down to the following assertions:
1. Financial Elder Abuse (in that claimants were the target of “misrepresentations and other fraudulent acts and omissions which caused general and special damages” that were done with “malice, oppression and fraud as defined by CC3294) .
2. Intentional infliction of emotional distress
4. Breach of fiduciary duty
5. Fraud by misrepresentation and concealment
6. Violation of the CLRA (CC1750)
7. Unlawful Unfair and Deceptive Business Practices (B &P 17200)
THE CLAIMANTS HAVE PROVIDED NO PROOF OF DAMAGES, EITHER FINANCIAL OR EMOTIONAL
The fundamental reality of this case is that claimants have no claim because there is no evidence that they have suffered any damages. Assuming arguendo that they were able to prove that all of the other elements for all of the other causes of action apply (which they cannot) they are unable to point to a single piece of evidence that they have been damaged, either emotionally or financially by the alleged wrongdoing of Barron Ross.
The claimants do not deny that they have received, in the full amount, the entire amount of money that they paid to Barron Ross, and they have now received, and cashed, another check amounting to the interest this money may have accumulated over the period of time the money was in the possession of Barron Ross Inc.
The claimants originally brought a claim under CC1717, but after receiving a demand under that statute, respondents took action that cured the alleged cause of action in a timely manner. The repayment of the sums to claimants, under California law, dispense with this cause of action. In order to bring action, not only must consumer be exposed to unlawful practice, but also some kind of damage must result; if a consumer has not suffered any damage as result of unlawful practice if unconscionable terms in consumer services contract have not yet actually been enforced so as to impose transaction costs on consumer then the consumer has no standing under Civ. Code § 1780(a) to sue for injunctive relief aimed at precluding future use of unlawful practice.” Meyer v. Sprint Spectrum L.P. (2009) 45 Cal. 4th 634, 643, 88 Cal. Rptr. 3d 859, 200 P.3d 29
Claimants’ assumption, that respondents kept their money in bad faith, is contradicted by the fact that claimants sent their demand letter to an office in Clovis, from which office neither Ed Griffin nor Lydia Sims worked. The facts are equally amenable to the interpretation that there was an error and that a refund was not provided for that very reason. But in line with claimants’ inflammatory claims is the automatic belief that whatever “error” may have transpired must be a conspiracy.
Majors and Fox also represented Marilyn Hawley, who upon receiving the estate planning documents provided by attorney Lesa McIntosh, received the full amount she paid. It is interesting to note that despite the fact that Majors and Fox were in full command of the facts regarding the existence of Lesa McIntosh and the fact that she was provided Estate Planning Services as in-house counsel to BR, they filed their claim omitting any mention of these facts and instead made a claim that BR was drafting all of these documents themselves. Their class-action complaint functions as a judicial admission that they were aware of this fact when they filed their claim with AAA.
Regarding the emotional damages, the seminal case Young v. Bank of America (1983)
THERE IS NO EVIDENCE THAT THE BARRON ROSS INC. WAS EVER ENGAGED IN THE UNUATHORIZED PRACTICE OF LAW
Turning toward the various other allegations, one can see that many of those lack the essential elements. For example, the claimants allege that Barron Ross Inc. is engaged in the unauthorized practice of law, but the factual basis for this charge does not exist. The claimants never received an estate plan, and even if they had, it would have been done by Lesa McIntosh, a licensed California attorney whose services were provided as in-house counsel, the same as any number of financial services companies in the State of California. There is no evidence, and the claimants will find none, that there was ever any “capping” or “fee-splitting” or anything remotely like that. It is well-known that any number of companies offer basic living trust services and they do not have to be a law firm in order to do that. According to chapter five of the ABA online PDF “Living Trusts-American Bar Association”, “Your bank might be another low-cost alternative for setting up a trust. Most banks now make available a living trust service in which the bank manages and invests the money you put in the trust, and you have the right to change or terminate the trust at any time.” Claimants are simply wrong about this assertion and more importantly, Majors and Fox knew this statement was false when they filed this claim on behalf of their clients with the AAA.
This case comes from a line of consumer-rights cases that came to the fore around 2002 when the Attorney General for the State of California Bill Lockyer, as well as multiple other AG’s from other states, began to investigate the sale of annuities to Seniors. The case
People ex rel. Bill Lockyer v. Fremont Life Ins. Co., 104 Cal. App. 4th 508 was one in which an AMA representative would visit a prospect and identify himself or herself as a “certified trust advisor” or as an expert in estate planning. The representative would offer to sell the prospect an estate plan, which would include standardized forms, many of which were based on California statutory forms but without cautionary and instructive information. The documents included an inter vivos trust, pour-over will, and various powers of attorney. When the documents were delivered at a later date, the representative presented the documents for signature and notarized some of them. During this encounter, the person delivering the documents, who at that point was a life insurance agent of appellant, would engage in efforts to persuade the consumer to purchase an annuity policy.
As is apparent from a brief comparison of this case and that one, claimants are attempting to shoehorn a set of facts completely different into their claim and then use the same law to support it. Unlike the facts in Fremont Life Ins., BR has never represented to anyone that they were experts in Estate Planning, referred these very simple matters regarding trusts to in-house counsel who then drafted and supplied them (just as any bank would) and at no time offered any kind of annuity, but instead marketed their non-legal services which required no specialized knowledge. No evidence of a fee-split, or “capping” is apparent anywhere. It is asserted without any supporting evidence.
THE CHARGE FOR THIS SERVICE IS NOT UNREASONABLE
Claimants allege that Barron Ross Inc. charges an “unreasonable fee” for aiding the Claimants in applying for medi-cal long-term care benefits, but base that upon nothing other than a blanket assertion that this is true. James A. Walker, the disbarred attorney who claimants attempt to connect to Barron Ross Inc., charged upwards of $20,000 for the same service. Despite the fact that he faced investigations and lawsuits, there isn’t any evidence to support the proposition that Walker did not help the clients who engaged his services by providing them asset-protection the same way BR has.
BARRON ROSS INC. DID NOT MISREPRESENT OR CONCEAL ANYTHING AND CLAIMANTS DID NOT RELY UPON ANY SUCH MISREPRESENTATIONS
Central to most of the claims presented is the assertion that claimants were misled and relied upon misrepresentations, and still further, respondents did so intentionally. These charges appear to have no evidence, admissible or otherwise, to support them. As the claimants fired BR, BR never had the opportunity to be able to provide them services. The claimants having fired BR, now seek damages for the very services that claimants prevented them from providing by having fired them. Claimants correspondence to BR does not ask them what services have been performed, does not ask them to perform, and does not insist on information regarding what has been done. Claimants released them from service, and now apparently assert, in what appears to be total speculation, that they would have not performed the various tasks outlined in the agreements between the parties.
Again, one of the key assertions, that BR was engaged in UPL and this was a misrepresentation, was something at least Majors and Fox knew was not true when they file this claim.
BARRON ROSS HAD NO FIDUCIARY DUTY TO THE CLAIMANTS
Although respondents treated claimants with the highest standard of good faith and fair dealing and disclosed everything to them, they are not and were not required by law to operate according to the standard asserted by claimants. A contract between a company that provides asset-protection for long-term care regarding Medi-Cal benefits does not give rise to a fiduciary duty.
As stated in Wolf v. Superior Court, 107 Cal. App. 4th 25, (Cal. App. 2d Dist. 2003) “Every contract requires one party to repose an element of trust and confidence in the other to perform. For this reason, every contract contains an implied covenant of good faith and fair dealing, obligating the contracting parties to refrain from doing anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Being of universal prevalence, the implied covenant cannot create a fiduciary relationship; it affords basis for redress for breach of contract and that is all.”
Claimants causes of action all must fail without essential elements to support them. Among those essential elements are the lack of damages, the fact that no Unauthorized Practice of Law occurred, the fact that no unreasonable fee was charged, the fact that there is no evidence of any misrepresentations relied upon by claimants, and the fact that respondents had no fiduciary duty to claimants, even if claimants had been damaged.