San Diego Union Tribune – Pitches from prospective home buyers – also known as love letters – are re-emerging in hot real estate markets. They often include family photos and strive to stir the emotions of the seller to give the home buyer an edge – especially when many bidders are competing for the same property.

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The Federal Trade Commission has a new video designed to help facilitators who assist consumers in repairing their identity.  Helping Victims of Identity Theft is the latest addition to the FTC’s library of resources that explain not only how to recognize identity theft, but also how to report it and repair the damage it can cause.  The FTC gets more complaints about identity theft each year than any other consumer issue, and estimates that nine million consumers become identity theft victims each year.

The video promotes the Guide for Assisting Identity Theft Victims, a tool for advocates, social workers, attorneys, and others who work to help resolve the issues identity theft causes.  The Guide is a complement to the do-it-yourself instructions in Taking Charge:  What To Do if Your Identity is Stolen.

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Los Angeles Times – The lender has accounted for 30 percent of complaints to the Consumer Financial Protection Bureau, with two-thirds of them involving modifications.

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There were too many responses to my article on contractor licensing for me to print them all. Following is a sampling:

Contractor #1. What if a board member serves as project manager? -Jim P.

RESPONSE: As long as the board member is not paid to oversee the project, there is no violation. The association, through its board, is the owner-builder and as such is not required to be licensed. Make sure you put something in the minutes delegating authority to him to oversee the project on behalf of the association.

Contractor #2. With regards to managers acting as contractors, does this apply to in-house managers who are employed by and work exclusively for an HOA? -Claire M.

RESPONSE: Because your manager is an employee of the association, he is exempt. If you were paying a third party (a management company) to oversee the project, there could be exposure.

Contractor #3. The management contract for our association calls for the management company to “monitor the activities of the contractor… including…the obtaining of contract documents, certificates of insurance, copies of bonds, warranties, releases of liens and other necessary or prudent documentation.” -C. L.

RESPONSE: The case that triggered the Legislative action involved a construction manager who engaged in various oversight activities for an owner. Those activities included the following:

…assist, on behalf of the Owner, in coordinating the activities of the various workers to enable them to complete their assigned tasks in an organized and efficient manner, on time and on budget; to maintain records such as insurance certificates, as well as the financial books and records for the project; to keep the Owner apprised of the status of the project; to be the onsite “point person” to respond to issues as they arose; and generally to act as the Owner’s agent with respect to the various parties connected with the development of the project. Plaintiff had no responsibility or authority to perform any construction work on the project, or to enter into any contract or subcontract for the performance of such work. (The Fifth Day v. Bolotin (2009) 172 Cal.App.4th 939, 948.)

The court decided that these activities did not make the consultant a contractor. The Legislature disagreed and revised the law to broaden the definition of who needed a contractor’s license. By implication that means that a manager who engages in the above activities would be subject to criminal and civil penalties if not licensed as a contractor.

Contractor #4. WOW! This is a big one. I agree that managers should not oversee construction projects. To do this the HOA manager should not act in the capacity of a general contractor. They should hire a general contractor when multiple trades are involved in the same project. They should never put themselves in a position of coordinating the work between sub contractors or dictating the “means and methods” of work. Managers should not oversee the actual work of the project which includes (from Merriam-Webster): administration, care, charge, control, direction, governance, government, guidance, handling, intendance, management, operation, conduct, presidency, regulation, running, stewardship, superintendence, superintendency, supervision. -Mike G.

RECOMMENDATION: Legislators have a way of targeting one thing and hitting something else. Perhaps if they were members of the NRA, their aim would be better. If a management company would volunteer to be sued, I could nail down how broadly the contractor licensing requirements will be interpreted. Until then, all I can do is recommend that boards and management companies take a close look at how they handle construction projects.

Los Angeles Times – Investors say they’re providing nice homes for families by buying up bargains, holding them, and renting them out. Critics say they’re taking advantage of a situation they caused.

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QUESTION: For 12 years I was able to put a Happy Birthday sign for one day on a common area. Nothing was said to me about the sign. Now I got a letter from the management company that I can no longer do that?

ANSWER: For years I rolled through a stop sign at particular intersection without being molested. One day a cop gave me a ticket. He was not sympathetic to my argument about the years of precedent I had set. He must work for your management company.

Adrian J. Adams, Esq.
ADAMS & KESSLER LLP

QUESTION: If an HOA changes its name, do the original CC&Rs and bylaws still remain the governing documents even if the board has not yet paid to have them updated with the new name?

ANSWER: Yes, the documents are still valid even though they contain the old name. CC&Rs are recorded against all property in the development so they remain intact regardless of what you call the development. It is like a young lady getting married, she is still the same person and her credit card debt follows her regardless of the name change (not that she has any debt…I’m just saying it would if she did). In the same way, bylaws follow the corporation not the name. Even so, the board should be diligent about updating documents.

Loss of Name. Sometimes an association will inadvertently lose their corporate name because it was suspended for failing to file tax returns or statements of information. When that happens, it could end up with one name for the corporation and another for the development (via the CC&Rs).

Adrian J. Adams, Esq.
ADAMS & KESSLER LLP

New York Times – Borrowers don’t often pay much attention to the title insurance required by their mortgage lenders – until they see the sizable charge for it on their list of closing costs.

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The Federal Trade Commission is warning small businesses about an email that pretends to be from the FTC with “Notification of Consumer Complaint” in the subject line. However, these emails are not from the FTC.

The fake email, which contains a link to consumer complaints, a link to contact the FTC, and an FTC telephone number, falsely states that a complaint has been filed against the small business.

The FTC advises recipients not to open the email. If the email has been opened, do not click on any links or attachments because they may install a virus or other spyware on the computer. Finally, the FTC says to delete the email.

The Federal Trade Commission is cracking down on affiliate marketers that allegedly bombarded consumers with hundreds of millions of unwanted spam text messages in an effort to steer them towards deceptive websites falsely promising “free” gift cards.

According to the FTC complaints, the defendants sent text messages to random phone numbers, including to consumers who do not have a text message subscription plan.

When consumers followed the links included in the unwanted messages, they were directed to sites that collected a substantial amount of personal information, including in some instances health information, before being allowed to continue toward receiving the supposed gift cards.

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