BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2258


                                                                    Page  1





          Date of Hearing:  April 19, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 2258  
          (Eggman) - As Amended March 16, 2016


                                  PROPOSED CONSENT


          SUBJECT:  UNCLAIMED PROPERTY


          KEY ISSUE:  should it be clarified that account transactions  
          made through electronic fund transfers shall be considered  
          interactions between the account holder and the financial  
          institution for the purpose of determining whether there has  
          been sufficient activity on the account to avoid escheat of the  
          funds to the state?

                                      SYNOPSIS


          California law currently requires financial institutions to  
          notify the State Controller's Office (SCO) when there is no  
          "live" activity between an account owner and his or her account  
          for three years, and the financial institution is unable to  
          contact the owner of the account.  Thereafter, the SCO must  
          notify the account holder that the account will be turned over  
          to the state if it remains unclaimed.  For many years, the  
          financial industry has interpreted "activity" to constitute some  
          sort of human or "live" contact by the account holder (i.e.  
          going into the bank to make a deposit/withdrawal, writing a  








                                                                    AB 2258


                                                                    Page  2





          check, etc.)  Today, many account holders deposit or withdraw  
          money from their financial institutions via Automated Clearing  
          House (ACH) transactions, also known as Electronic Fund  
          Transfers (EFT), and do not go into bank branches.  For some,  
          depositing or withdrawing a specified monthly amount is the only  
          type of activity that occurs in their accounts.  Further, some  
          people have savings accounts at multiple financial institutions  
          in order to maximize interest rates while retaining their  
          primary checking account in another financial institution.  
          Though the account holder may consider recurring  
          deposits/withdraws as regular account activity, the financial  
          industry does not.  Instead, the financial industry considers  
          recurring ACH transactions as a passive activity and does not  
          consider this dispositive evidence that the account remains  
          active.  Therefore, these active/"live" accounts are erroneously  
          considered dormant and trigger escheatment notices, which then  
          require the account holder to affirmatively confirm that the  
          account is truly active.  If the account holder does not  
          respond, the State Controller's Office (SCO) must also send a  
          notice to the account holder.  If the account holder fails to  
          respond to the SCO's notice, the funds in the account escheat to  
          the state. 


          The sponsor of this bill, the State Controller's Office,  
          contends that as a result of financial institutions not  
          acknowledging recurring ACH transfers as account activity,  
          thousands of people who have active accounts are unnecessarily  
          sent letters each year warning that failure to contact the  
          financial institution will result in escheatment of funds to the  
          SCO.  Accordingly, this bill seeks to harmonize industry  
          practices with the law by specifying that transactions involving  
          electronic fund transfers, both one-time or recurring, shall be  
          considered activity for the purpose of determining whether there  
          has been a period of inactivity on an account.  This bill is  
          supported by banks and credit unions and has received no  
          opposition to date.










                                                                    AB 2258


                                                                    Page  3





          SUMMARY:  Clarifies that transactions made through electronic  
          fund transfer shall constitute activity on the account for the  
          purpose of determining whether the law requires escheat of the  
          funds after a specified period of inactivity.  Specifically,  
          this bill:   


          1)Defines "increased or decreased the amount of the deposit" and  
            "increased or decreased the amount of the funds or deposit"   
            to include account transactions that are initiated through an  
            electronic fund transfer, as defined in 12 C.F.R. 1005.3, and  
            are reflected in the books and records of the banking or  
            financial organization.


          2)Includes account activity to include the following  
            transactions:


             a)   A single or recurring debit transaction authorized by  
               the owner.


             b)   A single or recurring credit transaction authorized by  
               the owner.


             c)   Recurring transactions authorized by the owner that  
               represent payroll deposits or deductions.


             d)   Recurring credits authorized by the owner or a  
               responsible party that represent the deposit of any federal  
               benefits, including social security benefits, veterans'  
               benefits, and pension payments.


          EXISTING LAW, the Unclaimed Property Law:   









                                                                    AB 2258


                                                                    Page  4






          1)Provides for the escheat to the state of unclaimed property,  
            as defined, following reasonable efforts by the holder of the  
            property to notify the owner that the property is unclaimed  
            and will escheat to the state.  Generally, unclaimed property  
            escheats to the state after three years since the last deposit  
            or contact with the owner or depositor of the property.  (Code  
            of Civil Procedure Sections 1500 et seq.  All further  
            references are to this code unless otherwise stated.)  


          2)Provides that any demand, savings, or matured time deposit, or  
            account subject to a negotiable order of withdrawal, made with  
            a banking organization, 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;


             c)   Otherwise indicated an interest in the deposit as  
               evidenced by a memorandum or other record on file with the  
               banking organization.  (Section 1513 (a)(1)(A).  )


          3)Provides that a deposit or account shall not, however, escheat  
            to the state if, during the previous three years, the owner  
            has owned another deposit or account with the banking  
            organization, as specified, and, with respect to that deposit  
            or account has done any of the acts described in #2 a) through  
            c) above, and the banking organization has communicated  








                                                                    AB 2258


                                                                    Page  5





            electronically or in writing with the owner, at the address to  
            which communications regarding that deposit, account, or plan  
            are regularly sent, with regard to the deposit or account that  
            would otherwise escheat under #2 above.  (Section 1513  
            (a)(1)(B).)


          4)Applies the same rules in #2 and 3, above, with respect to  
            escheat of any matured investment certificate, or demand,  
            savings, or matured time deposit, or account subject to a  
            negotiable order of withdrawal, or other interest in a  
            financial organization or any deposit made therewith, as  
            specified.  (Section 1513 (a)(2).)


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


          COMMENTS:  This bill, sponsored by the State Controller's  
          Office, seeks to designate all transactions made through  
          electronic fund transfer (EFT) as activity with a person's bank  
          account for the purpose of determining whether there has been  
          sufficient activity on the account to trigger the escheat  
          process under the Unclaimed Property Law (UPL).  According to  
          the author, this simple modernization of the statute will  
          eliminate unnecessary escheatment notices to be sent from the  
          bank to the account holder that require the account holder to  
          affirm the account's active status, and will also reduce the  
          number of accounts that unnecessarily escheat to the SCO when  
          there is current activity on the account in the form of  
          electronic transactions that are not necessarily considered by  
          financial institutions to be "activity."


          Background of the UPL:  The Unclaimed Property Law, enacted in  
          1958, establishes procedures for the escheat of unclaimed  
          personal property to the state.  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  








                                                                    AB 2258


                                                                    Page  6





          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) protect unknown owners by  
          locating them and restoring their property to them; and (2) 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  
          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, 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, as well as publish a notice to 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  








                                                                    AB 2258


                                                                    Page  7





          a database to discover if the state is holding any of their  
          property and, in some cases, to submit claims to recover the  
          funds or property.


          Because of traditional notions of account "activity," some  
          accounts today may escheat unnecessarily when activity is  
          exclusively through recurring electronic transactions.   
          According to its proponents, this bill seeks to harmonize the  
          law and the daily business practices of financial institutions  
          and consumers in order to avoid accounts erroneously escheating  
          to the state.  The issue can be boiled down to the question of  
          what constitutes account "activity."  Neither current law, nor  
          regulations, are specific enough to answer this question,  
          particularly in light of changing technology that has changed  
          banking practices for many Californians.  Proponents note that  
          the financial industry has long interpreted "activity" to  
          constitute some sort of "live" contact by the account holder  
          with the bank itself, while distinguishing electronic activity  
          as not necessarily evidence of "live" contact.  According to the  
          SCO, live contact includes things such as automated teller  
          machine or in-person deposits or withdrawals, checks being  
          written, and individual online banking transactions known as  
          Automated Clearing House (ACH) payments; however, recurring  
          automated ACH payments and deposits do not count as live  
          contact.


          Because this practice has apparently become an industry norm, it  
          creates the possibility that some accounts escheat to the state  
          unnecessarily by virtue of the fact that none of the electronic  
          "activity" is attributed to a live account-holder.  As the  
          California Community Banking Network explains:


               California law currently requires financial institutions to  
               notify the State Controller's Office (SCO) when there is no  
               "live" contact between an account owner and their account  
               for three years, and the financial institution is unable to  








                                                                    AB 2258


                                                                    Page  8





               contact the account owner.  Thereafter, the SCO must notify  
               the account holder that their account will be turned over  
               to the state if it remains unclaimed.  Many community bank  
               customers have more than one bank account and set up  
               recurring, automatic fund transfers in a secondary account  
               to be deposited into a primary account.  Even though the  
               account holder may make regular "live" transactions using  
               that secondary account, they may never interact with the  
               financial institution that holds the account, which could  
               eventually result in that account being escheated.  


          This bill remedies the problem by clarifying in statute that the  
          term "increased or decreased the amount of the deposit" includes  
          account transactions initiated by electronic fund transfers,  
          thereby triggering one of the conditions that signals "live  
          contact" with the account, effectively preventing escheatment.


          Under the current system, because recurring electronic fund  
          transfers are not recognized as account activity, financial  
          institutions have to spend a lot of time and effort to confirm  
          if an account is dormant.  Administrative costs to send the  
          escheatment notices place an additional burden on financial  
          institutions.  Proponents note that this solution may also  
          increase business and administrative cost savings because banks  
          and financial institutions would only have to send escheatment  
          notices to truly inactive accounts.  More important to  
          consumers, unnecessary escheatment of funds to the state  
          requires the effort to claim and receive escheated funds. 


          When recurring electronic transactions continue after an account  
          holder's death.  Under current law, financial institutions must  
          notify the SCO when there is no activity between an account  
          owner and his or her account for three years and the financial  
          institution is unable to contact the account owner.  What if the  
          reason for no activity and no communication is that the account  
          holder has died? Under current law, the account would presumably  








                                                                    AB 2258


                                                                    Page  9





          end up escheating to the state, as the account holder would be  
          unable to withdraw or deposit money, engage in individual "live"  
          transactions, or communicate with the bank.  Should recurring  
          EFT transactions to an account be counted as "live" activity and  
          prevent the conditions that otherwise trigger the escheat  
          process, it is conceivable that an account may continue to have  
          electronic deductions made each month until the account is  
          depleted, or until relatives or creditors of the account holder  
          intervene and alert the bank to the death of the account holder.


          According to representative of credit unions and banks contacted  
          by the Committee, however, this concern is mitigated because the  
          financial industry already uses multiple strategies to ensure a  
          deceased account holder's account does not stay active in  
          perpetuity.  Financial institutions currently become aware of an  
          account holder's death from a variety of sources including the  
          Social Security Administration via death notification entry,  
          family members, estate representatives, and obituary notices.   
          Recurring deductions to pay monthly bills are often identified  
          and stopped by family members or estate representatives after  
          the services they pay for are typically stopped soon after the  
          death of the account holder.  The California and Nevada Credit  
          Union Leagues, for example, report that the "bleeding" of funds  
          from a decedent's account is rare and not an issue for their  
          member institutions.  They contend that modernizing this process  
          is more beneficial for consumers and institutions alike. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          State Controller's Office (sponsor)









                                                                    AB 2258


                                                                    Page  10






          California Community Banking Network


          California Credit Union League




          Opposition


          None on file




          Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334