BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 212
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          Date of Hearing:   April 2, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                AB 212 (Lowenthal) - As Introduced:  January 31, 2013
           
          SUBJECT  :  UNCLAIMED PROPERTY: AGGREGATE REPORTING

           KEY ISSUE  :  SHOULD HOLDERS OF UNCLAIMED PROPERTY VALUED AT LESS  
          THAN $50 BE REQUIRED TO SEND DUE DILIGENCE NOTIFICATIONS TO  
          OWNERS AND, WHEN OWNER INFORMATION IS KNOWN, TO REPORT SUCH  
          INFORMATION TO THE STATE CONTROLLER?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          This bill, sponsored by the State Controller, seeks to require  
          holders of unclaimed property valued at less than $50 to send  
          due diligence notifications to owners, and to report owner  
          information, if known, to the State Controller.  Under existing  
          law, holders are not required to send due diligence  
          notifications for unclaimed property valued less than $50, and  
          holders may add many small properties together and report a  
          single amount to the Controller without including information  
          about the individual owners and properties, even if such  
          information is known to the holders-a procedure known as  
          aggregate reporting.  According to the author and sponsor, the  
          task of reuniting these properties with their rightful owners is  
          nearly impossible after they have been reported in aggregate,  
          and thus does not appear to further one of the main objectives  
          of the Unclaimed Property Law, which is to restore property to  
          its rightful owner.  Consequently, this bill seeks to eliminate  
          aggregate reporting of unclaimed property under $50 in value,  
          permitting it only in cases where the name of the owner is  
          unknown and there is no last known address in the holder's  
          records for the property.  This bill is opposed by banks and  
          credit unions, who contend that the additional due diligence  
          notifications will result in significant new administrative and  
          fiscal burdens.

           SUMMARY  :  Requires holders of unclaimed property valued at less  
          than $50 to send due diligence notifications to owners and to  
          report owner information, when known, to the State Controller.   
          Specifically,  this bill  :   








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          1)Removes two statutory exemptions that currently exempt holders  
            of property valued at less than $50 from the general  
            requirement to send due diligence notices to owners notifying  
            them that their property may be transferred to the state  
            unless they take certain actions.

          2)Prohibits aggregate reporting of unclaimed property valued  
            under $50 unless the name of the owner is unknown and there is  
            no last known address in the holder's records.

          3)Clarifies that the holder may impose a service charge of up to  
            $2 to send the notification, but only if the unclaimed  
            property has a value greater than $2.



           EXISTING LAW, the Unclaimed Property Law, among other things  :  

          1)Provides that certain types of savings or deposit accounts  
            made with a banking or financial organization, as specified,  
            escheat to the state when the owner, for more than three years  
            after the funds become payable or distributable, has not done  
            any of the following: 

             a)   Increased or decreased the amount of the deposit, cashed  
               an interest check, or presented the passbook or other  
               similar evidence of the deposit for the crediting of  
               interest;
             b)   Corresponded electronically or in writing with the  
               banking organization concerning the deposit; or 
             c)   Otherwise indicated an interest in the deposit as  
               evidenced by a memorandum or other record on file with the  
               banking organization.  (Code of Civil Procedure Section  
               1513(a) (1) and (2).  Unless otherwise stated, all further  
               statutory references are to that code.) 

          2)Requires the due-diligence notice sent by property holders to  
            owners to describe the escheat process, state the need to file  
            a claim for the return of the property, and provide other  
            specified information about the account or property.  Further  
            requires the face of the notice to contain a heading stating:   
            "THE STATE OF CALIFORNIA REQUIRES US TO NOTIFY YOU THAT YOUR  
            UNCLAIMED PROPERTY MAY BE TRANSFERRED TO THE STATE IF YOU DO  
            NOT CONTACT US."  (Sections 1513(b) and 1520(b).)








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          3)Expressly provides that the above notice need not be provided  
            to owners for deposits, accounts, shares, or other property  
            interests valued at less than $50.  (Sections 1513(c) and  
            1520(b).)

          4)Provides that every person holding funds or other property  
            escheated to the state shall report annually to the Controller  
            specified information identifying or describing the escheated  
            property and its owner, except that items of value under $50  
            may be reported in aggregate without the name, account number,  
            or other information, if any, identifying the property or its  
            owner.  (Section 1530(b).)

           COMMENTS  :  Under existing law, holders of unclaimed property are  
          generally required to: (1) send due diligence notices to owners  
          identifying the property and notifying them that the property  
          may escheat to the state unless certain action is taken; and (2)  
          report to the State Controller the owner's name, address, and  
          other information appearing in the holder's records, if any.  If  
          the unclaimed property is valued at less than $50, however, the  
          holder is not required to provide any due diligence notice to  
          the owner, nor to report identifying information about the  
          property and its owner to the Controller--even if such  
          information is contained in the holder's own records of the  
          property.  Instead, many small properties valued at under $50  
          may be combined together into a single amount without  
          identifying information, and reported in aggregate to the  
          Controller as a single line item.

          This bill, sponsored by the State Controller, would eliminate  
          these exemptions for property valued at less than $50 and extend  
          existing notification and reporting requirements to all  
          unclaimed property equally.  In other words this bill would  
          eliminate aggregate reporting for small properties and would for  
          the first time require holders of unclaimed property valued at  
          less than $50 to send due diligence notifications to owners and  
          to report owner information, if known, to the State Controller.   


          According to the author, this bill is needed to address certain  
          problematic aspects associated with the aggregate reporting.   
          The author states:

               Aggregate reporting presents many challenges for the  








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               Unclaimed Property Program in achieving its mission to  
               reunite lost and abandoned property with the rightful  
               owner.  Since current statute does not require holders  
               to report owner information on accounts valued at less  
               than $50, aggregate properties are not itemized within  
               the unclaimed property database or displayed on the  
               website for owners to search the SCO public website  
               and claim their properties.  If by chance, an owner  
               does learn that they have an aggregate property; many  
               complexities ensue for both holders and the SCO in  
               researching these properties and proving entitlement  
               when a claim is made.  Oftentimes when a customer  
               calls to make an inquiry regarding an aggregate  
               property, the State will refer them back to the holder  
               and conversely, the holder will refer them back to the  
               State.  This back and forth creates a great deal of  
               frustration for the property owner and inspires very  
               little public confidence of the Unclaimed Property  
               Program or the holder.

           Background of the UPL:   The Unclaimed Property Law, enacted in  
          1958, establishes procedures for the escheat of unclaimed  
          personal property.  Property escheated to the state means the  
          state has custody of the property in perpetuity, until the owner  
          claims the property.  Under the UPL, there are three significant  
          parties:  the owner, the holder, and the state.  The "owner" is  
          the person to whom the property actually belongs.  The "holder"  
          is the person or entity who has possession of the property.  The  
          holder might be a bank or other money depositary (e.g., holds  
          deposits of owner's money, holds property in a safe deposit  
          box), or a business that has issued a check to an individual or  
          other business, or a life insurance or annuity.  Holders of  
          unclaimed property have no interest in the unclaimed property.   
          (Bank of America v. Cory (1985) 164 Cal.App.3d 66, 74.)  A  
          holder is simply a trustee of the property while the property is  
          in the possession of the holder.  However, while the property is  
          in the custody of the holder, the holder generally uses the  
          funds or the property as an asset.  

          The UPL has dual objectives:  (1) to protect unknown owners by  
          locating them and restoring their property to them; and (2) to  
          give the state, rather than the holders of unclaimed property,  
          the benefit of its retention, since experience shows that most  
          abandoned property will never be claimed.  (State v. Pacific Far  
          East Line, Inc. (1962) 261 Cal.App.2d 609, 611; Douglas Aircraft  








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          Co. v. Cranston (1962) 58 Cal.2d 462, 463.)  The state, through  
          the Controller, acts as the protector of the rights of the true  
          owner.  (Bank of America v. Cory, supra, at 74.)

          The UPL establishes procedures to be followed when property goes  
          unclaimed, generally for a period of three years, and escheats  
          to the state.  Under existing law, the holder must annually  
          report on unclaimed property and turn the property over to the  
          Controller.  (Sections 1530 and 1532.)  In turn, the Controller  
          is required to mail a notice to each person who appears to be  
          entitled to unclaimed property according to the report filed by  
          a holder, in addition to the requirement of publication of  
          unclaimed property owners in a newspaper of general circulation.  
           (Sections 1531 and 1531.5.)  A person with an interest in  
          escheated property may file a claim to recover the property from  
          the state.  (Sections 1540 to 1542.)  The Controller maintains a  
          web site (  http://www.sco.ca.gov  ) where members of the public may  
          search a database to discover if the state is holding any of  
          their property, and may submit claims to recover the funds or  
          property.  

          According to data provided by the State Controller, his office  
          receives approximately $600 million annually as escheated  
          property.  Existing law requires that all but $50,000 of these  
          funds are transferred to the General Fund on a monthly basis.   
          (Section 1564.)  The Controller reports maintaining current  
          accounts of approximately $6.4 billion for monies that have been  
          remitted to the Controller and transferred to the General Fund.   
          As of FY 2011-12, there were approximately 21.5 million owner  
          accounts (individuals and organizations) in the Controller's  
          database, and in that year a total of $240 million in cash was  
          disbursed with an average payment of $837.  (State Controller,  
          "Unclaimed Property Division, Information Worksheet FY  
          2011-12".)

           Due diligence notification requirement for small properties.    
          Existing law requires holders of property to send due diligence  
          notices to property owners notifying them that their property  
          may escheat to the state.  The notice is intended to prompt the  
          owner to take some action on the account that will make the  
          owner's presence apparent to the holder, often by recovering the  
          property or restoring communication between holder and owner,  
          but in either case preventing escheat of the property to the  
          state pursuant to the UPL.  









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          Existing law does not require holders to send due diligence  
          letters with respect to property valued at less than $50.  Under  
          this bill, however, holders must send owner of small properties  
          less than $50 due diligence letters for the first time.   
          According to the author, this requirement will help more owners  
          local and claim their property with fewer frustrations than they  
          experience today.  In addition, the author contends that this  
          requirement will result in greater opportunities for the holder  
          to once again establish a business relationship with the  
          customer prior to escheat of the property, possibly resulting in  
          new business activity with that customer.

           Aggregate reporting potentially hinders the UPL's objective of  
          restoring property with owners.  
           Despite the diligent efforts of both holders and the State  
          Controller to notify owners of unclaimed property as required by  
          law, if no owner is located the holder must nevertheless  
          transfer the property to the state.  In such cases, the holder  
          must report specified information about the owner of each  
          property to the Controller-unless the property is valued less  
          than $50.  

          Existing law expressly permits so-called "aggregate reporting"  
          for items of value under $50, even when an owner's contact  
          information, such as name, address, account number and social  
          security number, is known to the holder.  Aggregate reporting of  
          unclaimed property occurs when many small properties are added  
          together and reported as a single amount to the Controller  
          without including information about the individual owners and  
          properties that are being aggregated together.  In 2011-12, the  
          State Controller reports that over $12.8 million was transferred  
          to the state in aggregate without any accompanying information  
          that could identify the individual property owners, and that  
          this figure totals approximately $68 million over the past five  
          years.

          According to the Controller, the task of reuniting these  
          properties with their rightful owners is nearly impossible after  
          they have been reported in aggregate.  Proponents contend that  
          aggregate reporting may unnecessarily prevent some owners from  
          being reunited with property under $50, even when identifying  
          information is known to the holder, because that information is  
          essentially disregarded and wasted once the property is reported  
          in aggregate.  Furthermore, this result does not appear to  
          further one of the main objectives of the Unclaimed Property  








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          Law-to restore property to its rightful owner-and may in fact  
          hinder it.  Consequently, this bill seeks to eliminate aggregate  
          reporting of unclaimed property under $50 in value, permitting  
          it only in cases where the name of the owner is unknown and  
          there is no last known address in the records of the holder.
           
          ARGUMENTS IN OPPOSITION  :  The California Credit Union League  
          (CCUL) opposes the provisions of the bill requiring its member  
          institutions and other holders to send due diligence notices to  
          owners of properties valued under $50, whom currently are not  
          required to be sent such notices.  CCUL writes in opposition:  
          "The additional due diligence notifications required under this  
          bill would result in significant additional costs to our member  
          credit unions.  Our member credit unions are not comfortable  
          with passing these additional costs on to their members.  The  
          lost revenue incurred by this additional burden would have  
          ordinarily been returned to our members via lower interest  
          rates, fees, and additional services."

          The California Bankers Association (CBA) objects to the bill on  
          similar grounds, stating that the bill will result in  
          significant administrative and fiscal burdens for its member  
          institutions.  CBA opposes the bill unless amended to remove the  
          requirement for due diligence notifications for property under  
          $50 and to delay operation of the bill until January 1, 2015 to  
          allow time to comply with the aggregate reporting provisions.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          State Controller's Office (sponsor)

           Opposition 
           
          California Bankers Association
          California Credit Union League
           
          Analysis Prepared by  :    Anthony Lew / JUD. / (916) 319-2334