Have a Healthy, Happy and Prosperous New Year

MORTGAGE e-ALERT©

(1-8-18)

HAVE A HEALTHY, HAPPY AND PROSPEROUS NEW YEAR

NEW LAWS EFFECTIVE JANUARY 1, 2018

There are many others, but these are very interesting. Especially to immigrants.

If any immigrant has a question, then call for an answer. You will not be required to identify yourself. You will not be charged.

AB 291Housing: immigration. (All non-citizens regardless of immigration or citizenship status should read and understand this law carefully for protection. If anyone has questions, please call attorney Herman Thordsen (714) 662-4990 for an explanation at no charge to the caller.)

(1)Existing law, makes it a cause for suspension, disbarment, or other discipline for any member of the State Bar to report suspected immigration status or threaten to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member, as defined, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment.

This expands that provision to make it a cause for suspension, disbarment, or other discipline for a member of the State Bar to report suspected immigration status or threaten to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member, as defined, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to the hiring of residential real property.

(2) This bill prohibits a lessor from causing a tenant or occupant to quit involuntarily or bring an action to recover possession because of the immigration or citizenship status of a tenant, occupant, or other person known to the lessor to be associated with a tenant or occupant, unless the lessor is complying with any legal obligation under any federal government program that provides for rent limitations or rental assistance to a qualified tenant. The bill would authorize a tenant or occupant to assert as an affirmative defense in an unlawful detainer action that a lessor violated this provision. The bill would also establish a rebuttable presumption that an affirmative defense is successful if the lessor approved the tenant or occupant to take possession of the unit before filing the unlawful detainer action and included in the unlawful detainer action specified claims.

(3)Existing law makes it unlawful for a lessor to engage in specified activities for the purpose of influencing a lessee to vacate a dwelling, including using, or threatening to use, force, willful threats, or menacing conduct that interferes with the tenant’s quiet enjoyment of the premises and that would create an apprehension of harm in a reasonable person.

This bill also prohibits a lessor from threatening to disclose information regarding or relating to the immigration status or citizenship status of a tenant, occupant, or other person associated with a tenant or occupant for the purpose of influencing a tenant to vacate a dwelling.

(4)Existing law prohibits a lessor, or an agent of a lessor, from making any inquiry regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential real property, or from requiring a tenant, prospective tenant, occupant, or prospective occupant of the rental property make any statement, representation, or certification concerning his or her immigration or citizenship status. This bill prohibits a lessor, or an agent of a lessor, from disclosing to any person or entity information regarding or relating to the immigration or citizenship status of any tenant, prospective tenant, occupant, or prospective occupant of the rental property for the purpose of, or with the intent of, harassing or intimidating a tenant, prospective tenant, occupant, or prospective occupant, retaliating against a tenant or occupant for the exercise of his or her rights, influencing a tenant or occupant to vacate a dwelling, or recovering possession of the dwelling. This bill would make it unlawful for a lessor to disclose to any immigration authority, law enforcement agency, or local, state, or federal agency information regarding or relating to the immigration or citizenship status of any tenant, occupant, or other person known to the lessor to be associated with a tenant or occupant, as provided, for the purpose of, or with the intent of, harassing or intimidating a tenant or occupant, retaliating against a tenant or occupant for the exercise of his or her rights, influencing a tenant or occupant to vacate a dwelling, or recovering possession of the dwelling, unless the lessor is complying with any legal obligation under federal law, or a subpoena, warrant, or order issued by a court. The bill would require a court to order a lessor to pay specified civil penalties in the event of a violation of these provisions to the tenant, and to issue injunctive relief to prevent the lessor from engaging in similar conduct in the future, and would require the court to notify the district attorney of the county in which the real property for hire at issue was located of a potential violation of specified laws relating to extortion. The bill would also require a court to award attorney fees and costs to the prevailing party in an action under these provisions. The bill would prohibit a tenant, occupant, or person known to the landlord to be associated with a tenant or occupant, from waiving his or her rights under these provisions. The bill would authorize a nonprofit organization exempt from federal income taxation to bring an action for injunctive relief under these provisions.

(5)Existing law provides that, if a lessor retaliates against a lessee of a dwelling for exercising his or her rights or because of a complaint to an appropriate agency as to tenantability and if the lessee is not in default as to the payment of rent, the lessor may not recover possession, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of the occurrence of specified events.

This bill would provide that a lessor would violate that prohibition if the lessor reported, or threatened to report, the lessee, or individuals known to the lessor to be associated with the lessee, to immigration authorities, but would provide that a lessor would not violate that prohibition if the lessor was complying with any legal obligation under any federal government program that provides for rent limitations or rental assistance to a qualified tenant.

(6)Existing law prohibits a lessor from retaliating against a lessee because he or she has lawfully organized or participated in a lessees’ association or an organization advocating lessees’ rights or has lawfully and peaceably exercised any rights under the law by increasing rent, decreasing services, causing a lessee to quit involuntarily, bringing an action to recover possession, or from threatening to do any of those acts.

This bill would provide that a lessor would violate that prohibition if the lessor reported, or threatened to report, the lessee, or individuals known to the lessor to be associated with the lessee, to immigration authorities.

(7)Existing law declares that all protections, rights, and remedies available under state law are available to all individuals in the state who have applied for employment or are employed, regardless of immigration status, as specified. Existing law also declares, for the purposes of enforcing state labor, employment, civil rights, and employee housing laws, that a person’s immigration status is irrelevant to the issue of liability and that discovery into a person’s immigration status is prohibited unless the person seeking to make the inquiry has shown by clear and convincing evidence that the inquiry is necessary to comply with federal immigration law. Existing law also provides that the immigration status of a minor child seeking recovery under any applicable law is irrelevant to the issues of liability or remedy and would prohibit discovery or other inquiry in a civil action or proceeding into a minor child’s immigration status, with specified exceptions.

This bill would declare that the immigration or citizenship status of any person is irrelevant to any issue of liability or remedy under specified provisions of law relating to the rights of tenants, and would prohibit inquiry being made in a civil action initiated to enforce those laws into a person’s immigration or citizenship status unless 2 exceptions to that prohibition apply.

(8)This bill would incorporate additional changes to Section 1940.3 of the Civil Code proposed by AB 299 to be operative only if this bill and AB 299 are enacted and this bill is enacted last.

AB 294, Mobilehome parks: disclosure.

The Mobilehome Residency Law governs residency in mobilehome parks and requires the management of a mobilehome park to disclose the name, business address, and business telephone number of the park owner upon a homeowner’s request.

This disclosure to be made within 10 business days upon receipt of written request of homeowner.

AB 299. Hiring of real property: immigration or citizenship status.

Law prohibits any public entity, city, county, or city and county from compelling a landlord or any agent of the landlord to take any action, as specified, based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property.

AB 1008 Employment discrimination: conviction history

This bill repeals the prohibition on a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction as described above. The bill provides it is an unlawful employment practice under FEHA for an employer with 5 or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions.

This bill also requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job, and to consider certain topics when making that assessment. The bill requires an employer who makes a preliminary decision to deny employment based on that individualized assessment to provide the applicant written notification of the decision. The bill requires the notification to contain specified information. The bill grants applicant 5 business days to respond before the employer may make a final decision. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the bill grants the applicant an additional 5 business days to respond to the notice. The bill would require an employer to consider information submitted by the applicant before making a final decision. The bill requires an employer who has made a final decision to deny employment to the applicant to notify the applicant in writing of specified topics. The bill would exempt specified positions of employment from the provisions of the bill.

MORAL

If anyone has any question please remember, after these laws become effective, NO ONE can question the status of the person in the state of California. If anyone has any question about this please call Herman Thordsen, Abogado, to explain at no cost.

.EMPLOYERS MISCLASSIFYING EMPLOYEES PAY A HEAVY PENALTY

FACTS

On December 20, 2017 a trial had concludedat the federal courthouse in New Haven for the District of Connecticut challenging the employers’ policy of misclassifying the lowest two levels of System Administrator (Associate Professional SA and Professional SA) as exempt from the overtime protections of federal and state law throughout the country.

The lawsuit asserted claims under the federal Fair Labor Standards Act, Connecticut wage and hour law, and California wage and hour law. It sued for overtime pay damages going back as far as 2010, up to the present. It also seeks additional remedies including liquidated damages, state law penalties, and reclassification of the System Administrators as nonexempt, so that they can be paid overtime pay when they work more than 40 hours in a week.

A nine-person jury unanimously found that (1) the System Administrators were misclassified, should have been classified as nonexempt, and therefore should have been paid overtime pay for the hours they worked, and (2) CSC’s violation of the law was willful, justifying liquidated damages (doubling the overtime pay owed).

The name of the case isStrauch v. Computer Sciences Corp.,No. 14-cv-956.

MORAL

Quite often workers are misclassified as independent contractors to avoid paying overtime and benefits.

In the case of licensed real estate brokers and real estate salespersons working for others the agreements fail to contain language required by the California Unemployment Insurance Code and the Internal Revenue Code thus making the Independent Contractor Agreement void as such and the personnel become employees as a matter of law.

TWO CALIFORNIANS FROM SANTA BARBARA, CALIFORNIA INDICTED FOR SELLING REAL ESTATE

FACTS

On December 12, 2017, in Illinois an indictment CHARGING TWO CALIFORNIA RESIDENTSfor their participation in a nationwide telemarketing real estate scam charged MICHAEL S. DAVENPORT, 49, OF SANTA BARBARA, CA, AND CYNTHIA L. RAWLINSON, 51, ALSO OF SANTA BARBARA, CA, with conspiracy to commit mail and wire fraud, five counts of wire fraud, and one count of mail fraud. The indictment arises from Davenport’s and Rawlinson’s participation in a Santa Barbara based telemarketing business. The business changed names several times, but was known at various times as MDSQ PRODUCTIONS, LLC, HOUSING STANDARD, LLC, ANCHOR HOUSE FINANCIAL, AMERICAN STANDARD, AMERICAN STANDARD ONLINE, AND YOUR AMERICAN STANDARD (for ease of reference hereafter "American Standard").

According to the indictment, American Standard placed ads on Craigslist stating that certain houses were available for sale or rent at very favorable prices. When individuals called in response to these ads, American Standard salespersons told them they would have to purchase American Standard’s list of houses to get more information about the property in the Craigslist ad. The salespersons also said that the houses on the American Standard list were in"pre-foreclosure," that the customers could purchase the houses by simply taking over the homeowners’ mortgage payments, and the deeds to these homes would then be transferred into the customers’ names.

The salespersons told the customers that there was a $199 fee for access to the list, but claimed that this $199 fee would cover title searches and deed transfers. In addition, regardless of what area of the country the customers lived in, the salespersons told them that the list contained numerous pre-foreclosure properties that were available in their area.

The indictment further alleges that, after the customers paid the $199 fee, they learned that the houses on American Standard’s list were not available to be purchased. Instead, the customers found that a substantial number of the addresses contained on the list were fictional and/or no houses existed at those locations. In numerous other cases, the customers learned that the houses were not in pre-foreclosure or financial distress, and were not available to be purchased at below market prices. If the customers asked for more information about the houses they had seen on Craigslist, American Standard’s Customer Service Department informed them that the houses were no longer available.

The indictment charges that Davenport was the owner of American Standard and oversaw the operations of the company. It is alleged that Rawlinson started out as a salesperson, but was promoted to the position of Sales Manager for American Standard’s Santa Barbara office. American Standard also had a sales room located in Lompoc, CA.

According to the indictment, the conspiracy and scheme to defraud operated from approximately January 2009 through at least October 5, 2016. During this period, American Standard victimized over 100,000 people and defrauded these individuals out of more than $27,000,000.

Davenport and Rawlinson are scheduled to be arraigned on the indictment on January 17, 2018, at the Federal Courthouse in East St. Louis, IL.

Under the SCAMS Act, because it is alleged that the crimes took place in connection withtelemarketing, and victimized ten or more persons over the age of 55, the maximum penalty for the conspiracy to commit mail and wire fraud charge is 30 years of imprisonment. Each of the individual mail and wire fraud counts carries a maximum sentence of 20 years in prison.

The indictment seeks forfeiture of $853,210.11 that was seized from Davenport’s Merchant Processing accounts, and $104,000 in cash that was seized from Davenport at the Bill and Hillary Clinton Airport in Little Rock, Arkansas.(usattysdIll121417)

MORAL

Just think of what they could have made doing the exact same thing legally with real estate licenses. That is presuming the alleged facts are proven in court.

THREE INCLUDING ONE ATTORNEY CONVICTED BY JURY TRIAL IN

$35 MILLION REAL ESTATE LOAN SCANDAL

FACTS

On December 18, 2017 jurors returned guilty verdicts against two former Sonoma Valley Bank executives and a Santa Rosa attorney for their roles in a $35 million real estate loan scandal that caused the institution’s collapse in 2010 and cost many elderly investors their retirement savings.