BLOG-The Daily Dirge

Disclaimer

FCA recognizes that the dissemination of individual experiences, the reporting of public information, and linking to other sites can help further our mission of educating the public on their funeral rights and options. However, FCA's limited resources and the nature of the Internet make it impossible to verify the content of personal experiences that are supplied by others or to verify the content of linked sites. FCA accepts no responsibility for these. Comments on the contents of personal reports and linked websites should be directed to the author(s).



ID Viewing - Don't Fall For It!

E-mail Print

ID Viewing

Many funeral homes are now requiring "personal identification" or ID viewing prior to cremation, hoping that when you see Mom in a cardboard box, someone will ask if there isn't something a little nicer. In fact, this tactic was recommended at a funeral industry symposium—Keys to Cremation Success, "How to Add $1,400 to Your Cremation Calls"—where the speaker admitted that such a maneuver was self-serving. Unless this occurs after a plane crash, for example, where there might be a legitimate doubt regarding the identity of the deceased, this is, indeed, a despicable and manipulative tactic. The funeral home certainly isn't going to show you the wrong body.

Not only is it a basic responsibility of the funeral home to be certain of the identity before ever taking custody of a body, it is also a reasonable expectation that the funeral home will not co-mingle bodies or "lose" the identification. Yes, occasionally there are stories about the wrong body being cremated or the wrong body in the casket for visitation, but these represent sloppy funeral home practices, not a failure to identify.

Some funeral homes have the gall to charge for this "required" viewing or for "preparation for ID viewing." According to the FTC, you may CERTAINLY decline either of these charges unless you specifically asked for private family viewing or unless there is a state law requiring personal ID viewing by next-of-kin. FAMSA knows of no such laws.

 

~o~

A son went to the nursing home to sign the permit for cremation after staff from an SCI-owned funeral home arrived to pick up his mother's body there. Although the nursing home staff had most certainly already done so, he was asked to identify his mother's body. When he said he had no desire to see his mother's body, he was asked to sign the following:

 

ELECTION NOT TO IDENTIFY BY ACTUAL VIEWING
I, _____________, having declined to make identification through actual viewing of the remains of ___________________________, my ____________________, hereby agree to indemnify and hold [an SCI-owned funeral home] and its officers, directors, shareholders, affiliates, agents, employees, successors, and assigns harmless from any and all claims, liabilities, damages, losses, suits or causes of action (including attorneys' fees and expenses of litigation) brought by any person, firm or corporation or the personal representative thereof, relating to or arising out of such failure to identify.

I understand that [the named SCI-owned funeral home] will wait three (3) additional days after all papers and/or forms required by law have been completed and filed with the appropriate governmental agencies before proceeding with cremation and will charge a storage/ refrigeration fee for the same.

Stressed at his mother's death and all that he needed to do while juggling work commitments, the son signed the form thinking it was a simple release. At no time was he told how much the storage fee would be, he claims. Six days later, he got a bill for $250 dollars more than he expected: storage for five days at $50 per day. Paperwork indicated that the bill had to be paid by the next day, a Friday, but he put off doing so to seek legal help. By the following Tuesday, the funeral home became threatening after a FAMSA inquiry—additional storage would be charged because of the son's delay . . . because he had not signed any "contract." Even though the son had signed a permit to cremate when the funeral home picked up his mother's body at the nursing home, FAMSA was told that the body had not yet been cremated because of the lack of a "contract." At no time—until Tuesday— was the son informed, he says, that a "contract" was the pivotal piece of paperwork necessary before his mother could be cremated. Eleven days had now elapsed with his mother's body stored in a cooler. One other reason the son was unwilling to sign the contract: His signature would indicate that he had been given all price and other disclosures required by the FTC prior to making any arrangements. Such information came after-the-fact—with the bill—and he had no intention of signing a false statement.

In legal terms, the son was a victim of duress and undue influence, not to mention the FTC violations that were committed. There was no legal reason to hold the body for three days AFTER all paperwork was filed, and the funeral home may NOT impose such a charge, let alone without notifying the consumer how much the charge will be. FAMSA is filing complaints with state and federal agencies on the son's behalf, but other consumers should be forewarned about this new manipulation of cremation customers.

 

More Corporate Sales Tactics

E-mail Print

Greedy and Outrageous Tactics

On the back of a Statement of Funeral Goods and Services Selected/Purchase Agreement supplied by an SCI-owned funeral home—under Terms and Conditions—there appears the following, "LIMITATION OF DAMAGES AND REMEDIES: By signing this Agreement you expressly waive, and you agree that you shall not be entitled to recover, consequential damages or losses of any kind, based on negligence. [Is this permission for the funeral home to be as negligent as it wants to be?] You further agree that recovery of direct or actual damages shall not exceed the amount of total charges for goods and services under this Agreement and acknowledge and agree that emotional distress will not be one of the claimed items of damage for any breach of contract." [No matter how egregious the actions of the funeral home might be, one obviously isn't supposed to get upset—or hold the funeral home responsible for making you upset. This reads like a license for consumer abuse!]

 

~o~

Under ACKNOWLEDGEMENT OF DISCLOSURES/DISCLAIMER, the above SCI Purchase Agreement has an item: "You were advised that the funeral firm's cost may be different based on volume or cash discounts or other professional/trade customs where permitted by state or local law."

Translation for consumers: We told you (in mirky wording) that we would mark up Cash Advance items, but we are not required by the FTC to tell you how much we've jacked up the prices of items you could arrange for yourself—i.e., the obituary, flowers, arrangements with clergy or other outside parties.

 

~o~

At a Stewart-owned cemetery in Pennsylvania and in Florida (and elsewhere?), families are being required to purchase urn vaults for the interment of cremated remains. One family was told this was required by the EPA as a health precaution. NOT so! There are NO federal or state requirements for an urn vault. Such a requirement is nothing more than a new tactic to line the pockets of greedy corporations.

In both of the above cases, the families were told the urn vault would be $495—an outrageous price. When one suggested he would purchase the vault somewhere else, he was told there would be a $75 "inspection fee." This should be outlawed. Unfortunately, cemeteries are permitted to set their own policies, and there is little consumers can do about it at this time. Write to your Congressional senators and representatives. Demand that cemeteries be brought under the Fair Trade Practices of the FTC Funeral Rule.

 

~o~

On the General Price Lists at Loewen-owned funeral homes, we are seeing wording that appears to be misleading and illegal: "Embalming is a chemical process which provides temporary preservation of the body and eliminates health hazards." (emphasis added)

According to the Center for Disease Control, there is NO public health purpose served by embalming. This is the only country where embalming is widespread, thanks to industry perpetration of such myths as the one above. Once embalmed, the undertaker is usually successful in selling you an expensive casket for the "beautiful memory picture."

 

~o~

At at least one Loewen-owned mortuary, when a family is choosing an immediate cremation or burial without other services, the "counsellor" signals another employee. The employee then places a call which is answered by the counsellor in the arrangements room. The family is told, "Someone is calling to see when they can come pay their respects to your Dad." If one call isn't enough to add embalming and calling hours to the arrangements, another call will come in.

 

~o~

If families don't purchase an expensive urn for cremated remains, require them to purchase a $45 temporary container. But be sure to stamp it "Temporary Container" on all four sides, advises one industry newsletter. SCI funeral homes are already doing this. When one woman balked—smart enough to know that the crematory would, of course, supply a container—she was sneeringly told she could probably find something at a Payless Drugstore.

 

~o~
 

Not so Gay-friendly in England

E-mail Print

"Gay-Friendly" SCI in England?

The following is from an article by David Northmore in "The Pink Paper," a British publication, dated November 1, 1996:

A multi-million dollar American corporation is cashing in on AIDS deaths in the UK via a helpline claiming to direct the bereaved to gay-friendly undertakers.

An investigation by the Pink Paper has revealed how relatives and partners are likely to be referred to one of the 370 UK funeral firms operated in Britain by the helpline's owners, Texas- based Service Corporation International (SCI).

The Corporation is now being probed by the Department of Trade for "acting against the public interest," and has already been slammed by the Advertising Standards Authority for issuing misleading advertisements.

Last year the Corporation launched a National Gay Funeral Advice Helpline claiming to offer the gay and lesbian community a network of "the highest standard of professional, compassionate and unbiased funeral services available."

But the Pink Paper has established the helpline is a marketing front for Service Corporation International's UK-wide chain of undertakers. It operates from an address in Kensington Park Road, south London, which is shared with Ashton Funeral Service—a subsidiary of the company.

The helpline's manager, Richard Van Nes, said callers are referred to SCI undertakers, but claimed the organisation's database also includes independent gay and gay-friendly funeral directors.

The Pink Paper put this to the test by calling the helpline and asking for details of gay-friendly funeral directors in Brighton. Two independent gay-owned or managed undertakers operate in the area, but the helpline only referred us to George Newman and Son—part of SCI.

. . . Sarah Bavil of the Society of Allied and Independent Funeral Directors said: "Any respectable funeral director will be gay-friendly. To emphasize the gay issue, with references to HIV and AIDS, implies 'we want your money.' It is clearly very tacky advertising."

 

 

SCI and the 4 'S's'

E-mail Print

SCI Manipulates Cremation Customers

The following arrived in the FAMSA mail:

 

Enclosed are educational tools for a new program which Service Corporation International (SCI) is imposing on their funeral homes and members of memorial societies who use their facilities. This program appears to be in conflict with memorial society philosophies and purposes. I apologize for sending this information anonymously.

 

A Memorial Society Friend

 


Even though the following is attributed to SCI, it is very likely that other firms are using similar or identical sales tactics, as such stratagies have been described in industry forums.

Studies show that repetition is the key to convincing consumers to "buy" a particular idea (as in the many TV ads for diarrhea and heartburn remedies). You'll quickly note the repetition throughout the following, including large-print visual displays to make sure the hard- of-hearing or the visually-impaired aren't missed in the process. (Sorry about the poor quality reproductions for some pages, but the copies we got weren't great either.)

Although the entire text is not reproduced here, what is striking about the "script" is the parts that should have been included but are missing. No where is a counsellor guided to ask: "Do you know what the deceased wanted for his/her funeral arrangements?" Or, "What kind of funeral rituals are important to your family?" Bold in the script appears in the original text.

 


Initial call: Set appointments on the quarter hour. It has been determined that families with quarter hour appointments are more likely to be "on-time" than families with hour or half-hour appointments. Inform the family that the conference will take approximately an hour and a half. This time will be spent designing/creating the service plans, planning the cremation, and signing necessary documents. [In one instance, the exhausted widow begged to go home after two-and-a- half hours. She had expected to make all arrangements in 30 minutes or so.]

Inform the family that they will be assisted by two funeral home professionals: 1) The Funeral Director (yourself), 2) Family Service Counselor. This is so we can better serve the family. [And gives a second one the chance to "sell" the family if the first one doesn't succeed?]

Inform the family of the variety of available service options. . . . Offer meaningful services by includingto accompany the remains through the cremation process. [All this during the first phone call you've made to say that Mom has finally passed away?] balloon releases and refreshments-catering. Offer family flowers

Mention clothing to all families, including those who select cremation. Offer funeral home clothing to every family. This enables us to handle the cremation in a dignified manner. Whether a family chooses to bury or cremate, respect for the deceased is no different [but this really plays into the next item].

Inform the family of the need to identify the remains in the cremation container they have selected. This satisfies/comforts the family that the process is being managed properly and assures peace of mind for all concerned. The identification should occur at a later scheduled time to permit proper reparation [sic] center handling of the remains. Please remind the family they may have a private family viewing for the immediate family only. [Isn't it the responsibility of the funeral home to know which body is which? Would the mortician risk traumatizing the family by showing the wrong body? Further reading will reveal the ulterior motive.]

If asked, inform the family of the variety of cremation containers available. Most are designed in the European style. [Toe-pinchers reminiscent of civil war caskets?]

Tell the family that you will need a list of pallbearers, including phone numbers for us to contact. If you are given the names over the phone, be careful to ask for correct spelling. This serves to ensure the correct spelling of the names for newspaper notices and pallbearers' letters. [Pallbearers for a cremation? Or is this more likely a preneed selling contact, as one family found out. A week after the funeral, a preneed counselor arrived with a "gift" from Mrs. M., a laminated copy of the obituary notice. The cemetery rep then tried to sell a preneed arrangement to the family friend who'd served as a pallbearer.]

Mention flowers [Again?].

From the script for the arrangements conference:

First to meet the family is the Family Service Counselor. The counselor greets the family and assists them with coffee, etc.

STATEMENT (to be made at the time of the first objection [to what?] by the family or if no objection is made, this statement must be made to every family at the beginning of every arrangement.)

Today you are going to make some decisions that will affect you and your family for the rest of your lifetimes. It is important that we make the right decisions today as many of these decisions are final and cannot be reversed tomorrow or next week. [Suddenly it's we?]

As your funeral professional, I have two obligations to your family. The first is a legal obligation. In accordance with FTC law I must provide you with a general price list. [But are you going to give me any time to look at it? Or are you going to distract me with your sales pitch?] Also, in accordance with State and Federal Laws we maintain and offer the best funeral facilities available.

The second obligation to you is a moral obligation. There is a lot of information that your family is entitled to. I am not here to sell you anything [Oh, yeah? I bet that's not what headquarters thinks.] but rather provide you with that information. This information is necessary [for your monthly quota?] and will assist your family in making the arrangements appropriate to suit your family needs. In today's legal environment, (and I personally would feel awful if you did), you should not leave here without all of the information you are entitled to. Please allow our staff at [Blankety-blank] funeral home to do our job thoroughly and serve your family to your expectations. [Or yours?]

Let me explain to you what we will need to accomplish in our arrangement process today . . .

Open the "Family Cremation Guide" and begin . . . .)

 


My name is [Blankety-blank] and I am a family service counselor here at [Blankety-blank]. I will be one of two professionals assisting your family throughout the entire funeral arrangement process. The other will be [Blankety-blank]. He/she is a funeral director here. We believe by having two professionals assist your family, we will be able to pay double attention to your families (sic) specific needs at this difficult time. Before we begin, do you have any questions? [But I probably shouldn't ask too many or you might lose your place in the script. ] Let me explain to you what we will need to accomplish in our arrangement process today. We will be using this simple eight page presentation (point to the "Family Cremation Guide") to assure that we do not neglect to explain all arrangement details to you. Please follow along with me if you desire.

 

There are basically only four things we need to accomplish during this arrangement conference. You[r] funeral director will be assisting you with the first three. He/she will be gathering some very important information necessary for processing the paperwork for the death certificate and other important documentation. Secondly, your funeral director will be discussing ceremony/service options. It is important that no-matter how simple or how elaborate, that your family consider some kind of celebration to allow for closure and healing. The third item the funeral director will need your help with will be the selection of a cremation container. This container will be used for the cremation process itself, as well as your positive visual identification. The final topic to be discussed is what your family intends to do with the cremated human body of your (Mother/Father/Husband, etc.). After your funeral director has cover[ed] the first three items, I will rejoin you to discuss final disposition and MEMORIALIZATION. This will occur in about 30/40 minutes. Do you have any questions?

[Some funeral homes are now charging for "identification viewing." The enforcement lawyer at the Federal Trade Commission says that this is a declinable fee, one you DO NOT have to pay. Only if you wish to choose a private viewing by the family would there be a legitimate charge.]

The Family Service Counselor now exits the room and returns to introduce the Funeral Director. The Funeral Director greets the family and begins the arrangement. The Funeral Director then reviews the "Arrangement Process" again with the family. [Again? Let's get on with it, folks. . . .] The Funeral Director then proceeds to gather information and fill in the paperwork. Upon its conclusion the funeral director then turns to the next page in the "Family Cremation Guide" titled "Ceremony and Celebration Options."

 


It is now time to discuss the various service and ceremony options available to your family. It is important to remember that regardless of how simple or elaborate, your family must consider doing something to celebrate this wonderful life that was lived. [Preferably something you can charge for?] It is a vital part of the healing process. There is no boundary or limit on what we can assist you with. [I'm sure there isn't. More discussion of options is given . . . .]

 


As previously mentioned you will need to choose a cremation container. This container is a requirement and will meet three specific needs. One, it will be used for the cremation process itself. Second it will be used for the positive visual identification of your loved one. Lastly, it will be the container which will protect your loved one while in our care here at the funeral home.

There are three basic types of cremation containers. There are hardwood caskets, both of a more traditional design as the one depicted here as well a[s] others that are more cremation specific. There are also cremation containers. They are simple in design for those families wanting a dignified unique container to protect their loved one. We also have a minimum cardboard box. This container is quite simply a cardboard box with no pillow and no mattress. Please follow me as we have these containers displayed in a separate room. [Did someone forget that a casket price list must be offered first?] It is necessary that you accompany me to the room and choose a container as we will not sell anything sight-unseen. [Certainly not a cardboard box with no pillow or mattress for Mom. When forced to look at the cardboard box, are you hoping someone in the family will choose "something a little nicer." And if we don't pick something a little nicer now, are you expecting us to be shocked into doing so once we see Mom in the cardboard box during the "identification viewing"?]

After the container is selected the funeral director tells the family that the next thing to be discussed (memorialization) will be addressed by the family service counselor. He/she informs the family that there is paperwork that must be finalized and that while they are attending to those details, the family service counselor will review final disposition and memorialization. The family service counselor returns to the arrangements conference.

 

Let me introduce you to memorialization. Statistics tell us that over 90% of families that choose cremation want to memorialize the life of their loved one. The wonderful thing about memorialization is that it can be anything you want it to be. [Are you going to bother to ask me?] Memorialization creates an opportunity for family and friends to say good-bye in a dignified manner. It provides a link to the past, future and present by allowing generations of loved ones a permanent place to go to reflect and remember. And most importantly, it provides a time and place for you and your[s] to go to heal and provide closure [and, no doubt, adds to the company profits if I pick something you're selling.].

There are specific laws and guidelines that pertain to what can be done with the cremated human body. [This is a blatant lie in every state except California. In California, cremated remains may not be scattered over land. They may be interred anywhere, and the family may even keep them at home. Without cremains police, a family may effectively do anything it wishes—even in California.]

 


[Discussion of what the funeral home has to offer, such as a memorial garden, ensues.]

If the family does not choose memorialization at this time, the family service counselor then refers the family back to the funeral director. Away from the family, the family service counselor tells the funeral director about the families [sic] decision not to choose memorialization. The funeral director then talks to the family about urn selection.

 


At the completion of the cremation process the cremated human body of your loved one will be returned to your family. At this time, I need you to choose a container or urn to hold the cremated human body. [Because if I don't, your sales quota will be down?] Urns come in a wide range of styles and prices. The urn should be a permanent protective container. [Because that will cost me more than the free container that comes from the crematory?] Also, there are various urns with many different functions. Let me explain them to you.

Almost all urns can be buried. [Which ones can't?] Burial can take place in a family plot or urn garden. There are specific laws on where you can bury cremated remains. [Are you going to lie to me again so I'll be sure to purchase a niche or space in your facility?]

Many families choose to scatter the cremated remains. Scattering should be given special consideration as it is an irreversible act and once performed cannot be undone. There are special urns designed for the family that chooses the scattering option. [What does one do with it afterward?]

 


Explain to the family the process of the family service counselor and what the role will be upon completion of services and the cremation. [This page is strangely empty. Are they really going to warn me that every new name they can get out of this transaction will be considered a "referral"?]

 


Another set of pages mailed to us reveals that—while service to customers is mentioned in passing—sell, sell, sell is the ultimate goal:

SUCCESSFUL FAMILY SERVICE COUNSELORS ARE ABLE TO DISPLAY:

1. An understanding of the rules and regulations pertaining to their cemetery and the policies of SCI.

2. An ability to explain in a positive and supportive manner those rules and regulations which are designed for the common good.

3. A familiarity with the legal guidelines applicable to their cemeteries.

4. A sensitivity to the family's emotional needs while obtaining proper legal documents and applicable paperwork.

5. Assertiveness in field follow-up on prearrangement developed from the families they serve.

6. An ability to prioritize, with skills in time management.

7. A faculty for remembering names and faces.

8. A willingness to recruit new people.

9. Encouragement and motivation to employees.

10. Leadership qualities.

11. A high energy level and strong work ethic.

There are two (2) main functions of a Family Service Counselor. Under each are a series of duties and responsibilities that require a high standard of performance:

 

1. To counsel, advise and guide at-need families in the purchase of cemetery property, merchandise and services, while maintaining a constant attitude of service toward them.

2. To generate preneed sales through the at-need families using a detailed field follow-up program.

These two (2) main functions incorporate the four (4) "S's".

 

1. SERVE THE FAMILY.
2. SELL THE FAMILY.
3. SOLICIT REFERRALS.
4. SELL REFERRALS.
 

Stewart's Deceptive Preneed Contracts

E-mail Print

Stewart Cemetery Practices Deceptive

The following was faxed to Maridel Freshwater in the regional office of the Federal Trade Commission by Pierson Ralph, Executive Director, Memorial Society of North Texas. Several editorial comments have been added in italics.

Simplicity Plan of Texas, a subsidiary of Stewart Enterprises, Inc., sells preneed cemetery space and funeral plans for Stewart funeral homes, including Restland, Laurel Land, Anderson Clayton, and Bluebonnet Hills, among others.

Simplicity seeks to sell cemetery space/markers and a funeral plan concurrently, and offers time payment terms to cover the purchases.

Simplicity encourages purchasers who buy both items to combine payments on one account. There are, however, potentially adverse consequences to such combination if the purchaser defaults or chooses to cancel a contract. Simplicity does not warn purchasers of such adverse consequences.

These consequences arise because of the manner in which payments are posted to the two contracts, and the different consumer protection provisions which apply [or may not apply].

On a prepaid funeral plan under a trust arrangement, the form Simplicity sells, Simplicity retains for its own use one-half of all payments until ten percent (10%) of the face amount of the contract has been retained. The other one-half is deposited in a trust account for the purchaser. Once the ten percent has been retained, all further payments are deposited in the trust. Payments deposited to the trust, but not earnings thereon, are refundable to the purchaser in the case of cancellation or default on the payments. This is significant protection to the purchaser. [Actually, this is only a beginning protection. The earnings should be refundable, as well.]

The cemetery space/marker payments are under a retail installment contract, which provides essentially no protection to the purchaser in the case of cancellation or default.

The potential adverse consequences arise because Simplicity does not allocate principal payments on the debts proportionally, but allocates them all to the cemetery space/marker debt until it is fully paid. Only then are payments allocated to the funeral plan.

Although this distribution is spelled out in the contract, the implication will not be apparent to almost any purchaser. The Memorial Society contends that this is a deceptive trade practice, and should be corrected either by allocating principal payments proportionally between the two contracts from the start, or by including a clear warning in the contract that "Combining these payments may substantially reduce the amount you could recover in case you find you have to cancel." [There appear to be only a few states that have such an allocation requirement.]

In April 1995, a woman of modest financial means and relatively unsophisticated about time purchases—and with essentially no knowledge at all about funeral purchases—became concerned about funeral arrangements for her father. She contacted Restland Funeral Home in Dallas and purchased two contracts, one for a cemetery space at $1,850, the other for a funeral at $4,040. She paid $100 down and financed the balance at 7% interest—on first appearance, a relatively low finance rate. As it turned out, this supposedly favorable rate was an illusion, as is shown later. [How can any state allow a business to CHARGE interest on something NOT YET ACQUIRED while they are COLLECTING interest on the payments in the meantime?!! What is wrong with the Texas legislature that they haven't put a stop to this practice? How can Stewart's corporate boys sleep at night?]

Although she had two contracts, Restland graciously offered to combine these under a single payment plan under terms of the cemetery space purchase contract: "For your convenience, the payments on the (cemetery purchase) Contract may be combined with payments for any additional purchase(s), including any pre-paid funeral arrangements, on one account."

Restland normally sets up payments for a funeral purchase for a maximum of seven years. Under this arrangement, however, the funeral purchase was tacked onto the end of the cemetery purchase. The payment schedule called for 119 payments of $68, extending the payout period to one month shy of ten years!!!

The total time payment price, thus, was $8,192: the $100 down payment and 119 time payments of $68. The total finance charges included in this price, if paid according to the schedule, come to $2,302. This increased the total cost by 39%, ignoring for this calculation the subtleties of the "time value of money."

In late 1996, the woman began to have financial problems. The sight drafts for the monthly payments (Restland goes so far as to offer lower carrying charges for bank drafts than for direct pay), among other things, caused several overdrafts at her bank account. She closed the account, and, by 1997, no regular payments were being made. In September, she turned to Senior Citizens of Greater Dallas for help, and they referred her to the Memorial Society.

By this time, the father was failing and could die any time. The woman had equity of only $835 (according to Restland) toward the contract of $5,890. All the rest of her payments had gone to carrying charges and penalties. Upon maturity (the death of her father), she would have to come up with over $5,000 to complete the purchase. This seemed virtually impossible considering the trouble she was having just making the $68 monthly payments.

The best the Memorial Society could suggest was that she cancel, essentially forfeiting everything she had paid, including the $835 equity in the cemetery space, and choose a less expensive package of goods and services from a less costly provider, of which there are many in the area.

Restland, in its magnanimity, would extend a credit of $835 to the woman or any member of her family toward the purchase of a grave space at any of the cemeteries affiliated with Restland, at need only, i.e., when the person to be interred had died. This, of course, would reduce the value of the credit proportionally, as cemetery prices in the already expensive cemeteries at Restland and its affiliates increase still further.

As Virgil remarked in Aeneid, Book II, Line 49: "I fear the Greeks, even when bringing gifts."

All of the above are according to Restland's contracts. Of course, not all purchasers read the contracts, and even fewer understand them. Caveat emptor!

There is, however, a possibility that the packaging of the single payment for the two contracts constitutes a deceptive trade practice. As noted above, there were two separate contracts, one for purchase of cemetery space, the other for purchase of the funeral. There are substantial differences in protection to the consumer under these contracts. The cemetery property sale is a retail installment contract, governed by Texas law pertaining to such contracts. One provision of the contract is that "If a payment to be made by Purchaser on this Contract is not paid within 60 days of the date the payment is due, Seller may, as a matter of its sole discretion, (i) declare that all payments made by Purchaser on this Contract are forfeited to and shall remain the property of Seller as and for liquidated damages." This indicates that the cemetery property would revert entirely to the seller in the case of default or cancellation. The funeral contract is governed by a special law which restricts what the seller can retain in case of cancellation. (Article 548b, Vernon's Texas Civil Statutes, permits the seller of a trust-funded plan to retain one-half of all funds collected or paid until it has received an amount not to exceed ten percent of the total amount agreed to be paid. All other funds must be deposited in a trust account. All amounts so deposited, but not the earnings thereon, must be paid to the purchaser on cancellation.)

The provision for combination of the payments is in the contract for purchase of the cemetery space. It goes on to state, "All payments will be applied first, to accrued finance charges and insurance premiums, if applicable, secondly, to purchases of cemetery property and any memorial until fully paid, and lastly to other purchases." In the case cited, the other purchase was for the funeral.

If, instead of these provisions, the payments had been allocated proportionally to the amount financed, the equity would have been only $262 in the cemetery property and $573 in the funeral purchase. The seller could retain only half this amount or $286.50. The other $286.50 would be returned to the purchaser. A small amount, but significant to a financially strapped buyer. [Frankly, some of us find it appalling that 100% of the funds paid aren't refunded, with the seller permitted to keep only a modest portion of the interest income to cover administrative expenses!]

It would take a person with thorough knowledge of the difference in the cancellation provisions between the two contracts to catch the significance of allocating principal payments first to the cemetery property debt and only after this is paid in full, to the funeral contract. The effect is to minimize what the purchaser can recover upon cancellation, and, conversely to maximize what the seller can keep. It seems very unlikely that the attorneys and other professionals at Restland were not aware of this distinction and structured the provisions to benefit their own interests at the expense of the purchaser.

It's all there in the contracts, but it requires a lot of know-how to figure it out. The consumer would be warned if a statement to the effect that "Combining these payments may substantially reduce the amount you could recover in case you find you have to cancel." were included in the section of the cemetery space purchase contract which covers the combination of payments. Failure to include such a statement is construed as a deceptive trade practice. [Perhaps a clearer warning is needed for some, with a schedule of what has been paid and how much of that can be expected in a refund after cancellation or default during each of the ensuing years!]

 
More Articles...


Page 264 of 265