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Long Island seniors law shop the target of a lawsuit alleging one of its partners fabricated claims in hundreds of debt collection lawsuits on behalf of nursing home clients to lobby on residents’ families and friends to pay off suspected debts and legal fees.
The law firm denied the fabrication allegations, but did not comment on the allegation that the firm filed many of these collection lawsuits.
Cona Elder Law – formerly known as Genser, Dubow, Genser & Cona before rebranding in 2020 – has been accused in a May 28 complaint of fabricating an allegation of fraudulent transfer against county resident Alphonso Franklin from Bronx. Cona’s debt collection lawsuit sought to hold Franklin liable for nearly $ 20,000 in debt that was allegedly accrued during his now-deceased mother’s 120-day stay with one of the clients of the nursing home in the company, Wartburg Home of the Evangelical Lutheran Church.
The debt collection lawsuit, which was filed on June 18, 2020, by Ken Kern, a partner of Cona Elder Law in the New York State Supreme Court, alleged that Franklin aided his mother in making a fraudulent transfer or to escape the obligations of the debt by making it self-insolvent.
The lawsuit made such an allegation against Franklin and his mother “on information and belief” without specific factual support, and despite the fact that Franklin’s mother died while in Wartburg’s custody in February 2019, the lawsuit said. court records.
These were red flags for Franklin’s attorneys at the law firm of Ahmad Keshavarz, a Brooklyn-based consumer rights firm that defended Franklin against the fraudulent transfer allegations. Ahmad Keshavarz is currently pursuing litigation against Cona and Wartburg.
Emma Caterine, along with her company founder Ahmad Keshavarz, argue that Kern made the fraudulent transfer allegations “on the basis of information and belief” because neither he nor the other defendants had a factual basis for the allegation.
On April 1, 2021, New York State Supreme Court Judge Eddie McShan sided with Franklin’s motion to dismiss all claims against Franklin, arguing that the fraudulent transfer allegation was inadequate because Cona “did not disclose the source of this information.”
McShan said the court found “nothing in all four corners of the complaint to indicate that there were fraud badges to infer sufficient intent to defraud to survive the instant dismissal motion.” He added that any order affecting Franklin’s mother would be void as she died before Cona took action.
In their May 28 complaint, Caterine and Keshavarz alleged violations of the Fair Debt Collection Practices Act and New York Judiciary Law against Cona, with one additional count of New York General Business Law violation against Wartburg. Caterine and Keshavarz are seeking actual damages, punitive damages and attorney fees for their client, according to their complaint.
Representatives for Wartburg did not respond to a request for comment.
In their lawsuit against Cona and Wartburg, Franklin’s attorneys said that “by deceptively and unfairly fabricating allegations of fraudulent transfer, the defendants [Cona and Wartburg] can turn a negligible return into a full recovery with legal fees paid by the other party. “
“Most of the people prosecuted for this – families and friends of nursing home residents – don’t have a lawyer and don’t know the legal jargon,” Caterine said. “All they know is that they are being sued for retirement home debt and being sued for fraud.”
Lawyers for Franklin have said that the Nursing Home Reform Act of 1987 prohibits nursing homes from seeking financial guarantees from third parties, such as friends and families of residents, as a condition of admission.
But the Wartburg Home and its lawyers at Cona Elder Law have reportedly evaded this public policy by fabricating fraudulent transfer allegations, Caterine said, allowing them to involve third parties in their debt collection lawsuits and demand fees from lawyer in addition to any suspected debt of a retirement home.
“Since this law was passed, nursing homes and debt collectors prefer to go after these families because the elderly in nursing homes usually don’t have a lot of money and the money they have comes from Social Security and other forms of garnishment. protected by New York income law, ”Caterine said.
In a prepared statement, Kern disputed allegations the company violated debt collection laws and said Cona was following the Fair Debt Collection Practices Act “to the letter of the law.”
“While we represent our clients diligently, we do so in a consistent manner and in accordance with all applicable laws and our ethical obligations as lawyers,” said Kern. “We are confident that the facts of this case confirm that we have fully complied with all of our obligations under the Fair Debt Collection Practices Act and that we have maintained the high level of professionalism we pride ourselves on in all aspects of our management of property. that case.”
Franklin’s case wasn’t the only time Cona Elder Law attorneys conspired with clients of the nursing home to induce payment from third-party affiliates to residents of the nursing home, according to Keshavarz’s complaint. and Caterine.
According to the lawsuit, New York State court records show that Cona Elder Law has filed hundreds of debt collection lawsuits on behalf of nursing home clients against residents and family members, as well. than other third parties, according to the Keshavarz and Caterine survey. Allegations of fraudulent transfer have been made without merit in more than 85% of retirement home collection complaints filed by Cona since 2017, according to the complaint.
A spokesperson for Cona Elder Law declined to comment on the allegation.
“As this case is an open and ongoing litigation, our cabinet cannot comment on the merits or specific facts of the case,” the spokesperson said.
Keshavarz said it was possible to bring this type of lawsuit as a class action suit, but the Fair Debt Collection Practices Act provides for “poor remedies” for class actions, with statutory damages limited to 1% of the overall net worth of a defendant. As a result, he said the recovery sought in a class action suit is not as large as what can be claimed in an individual case like his, where emotional distress damages are sought.
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