BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 2258 (Eggman)
          Version: March 16, 2016
          Hearing Date: June 14, 2016 
          Fiscal: Yes
          Urgency: No
          TH   


                                        SUBJECT
                                           
                                 Unclaimed Property

                                      DESCRIPTION  

          The Unclaimed Property Law (UPL) governs the disposition of  
          unclaimed property, including the escheat of certain property to  
          the state, and generally requires the State Controller to mail a  
          notice to each person who appears to be entitled to escheated  
          property.  This bill would provide that specified transactions  
          initiated through an electronic funds transfer that are  
          reflected in the books and records of a banking or financial  
          organization shall constitute account activity for purposes of  
          determining whether property is unclaimed and subject to  
          escheat.

                                      BACKGROUND 

          The Unclaimed Property Law (UPL), enacted in 1958, establishes  
          procedures for the escheat of unclaimed personal property held  
          by business associations.  Under the UPL, property that remains  
          unclaimed for a set period of time "escheats" to the state,  
          which means the state gains custody and control over the  
          property in perpetuity until it is claimed by the owner.  The  
          UPL assigns various rights and responsibilities to the owners  
          and holders of unclaimed property, as well as to the state.  The  
          "owner" is the person to whom the property actually belongs.   
          The "holder" is the person who has possession of the property.   
          A holder might be a bank or other money depositary (e.g., one  
          that holds deposits of an owner's money or holds property in a  
          safe deposit box), a business that has issued a check to an  








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          individual or other business, or the issuer of a life insurance  
          policy or an annuity.  The holders of unclaimed property have no  
          interest in that property.  (See Bank of America v. Cory (1985)  
          164 Cal.App.3d 66, 74.)  A holder acts rather as a trustee of  
          the property while it is in the holder's possession.

          The UPL has dual objectives:  (1) to reunite owners with  
          unclaimed funds or property; and (2) to give the state, rather  
          than the holder, the benefit of the use of unclaimed funds or  
          property.  (Bank of America v. Cory, 164 Cal.App.3d at 74;  
          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 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.  (Code Civ. Proc. Secs. 1530, 1532.)  The Controller  
          is then required to mail a notice to each person who appears to  
          be entitled to unclaimed property according to the report filed  
          by the holder, and must publish notice to apparent owners of the  
          property in newspapers of general circulation.  (Code Civ. Proc.  
          Secs. 1531, 1531.5.)  The UPL also delineates the procedure by  
          which a person with an interest in escheated property may file a  
          claim to recover the property from the state.  The Controller  
          maintains a public Web site where individuals may discover  
          whether or not the state is holding any of their funds or  
          property, as well as a portal to submit claims to recover the  
          funds or property.  (See https://ucpi.sco.ca.gov/ucp/)

          Generally speaking, unclaimed property is subject to escheat  
          when the owner of the property, such as an account holder at a  
          bank, fails to conduct any activity with respect to the property  
          or otherwise indicate an interest in it for a period of three  
          years.  This bill would provide that electronic funds transfers  
          constitute activity for purposes of determining whether activity  
          has occurred with respect to such property.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the Unclaimed Property Law (UPL), requires  
          property held or owing by a business association that is  
          unclaimed for more than three years, as specified, to file a  
          report with the State Controller and to turn over that property  







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          to the state.  (Code Civ. Proc. Secs. 1513, 1513.5, 1530-1532.)

           Existing law  specifies that a demand, savings, or matured time  
          deposit, matured investment certificate, or account subject to a  
          negotiable order of withdrawal, made with a banking or financial  
          organization, as specified, is subject to escheat when the  
          owner, for more than three years, has not done any of the  
          following:
           increased or decreased the amount of the funds or deposit,  
            cashed an interest check, or presented the passbook or other  
            similar evidence of the deposit or account for the crediting  
            of interest;
           corresponded electronically or in writing with the banking or  
            financial organization concerning the funds or deposit; or
           otherwise indicated an interest in the funds or deposit as  
            evidenced by a memorandum or other record on file with the  
            banking or financial organization.  (Code Civ. Proc. 1513  
            (a).)

           Existing law  provides that, except as specified, when the holder  
          of unclaimed property has in its records an address for the  
          apparent owner of property valued at fifty dollars ($50) or  
          more, the holder shall make reasonable efforts to notify the  
          owner that the owner's property will escheat to the state on a  
          specified date.  The notice shall be mailed not less than six  
          nor more than 12 months before the time when the owner's  
          property would escheat and become reportable to the Controller.   
          (Code Civ. Proc. Sec. 1520.)

           Existing law  provides that within one year after payment or  
          delivery of escheated property, the Controller shall cause a  
          notice to be published, in a newspaper of general circulation  
          which the Controller determines is most likely to give notice to  
          the apparent owner of the property, that information concerning  
          the amount or description of the property may be obtained by any  
          persons possessing an interest in the property by addressing an  
          inquiry to the Controller.  (Code Civ. Proc. Sec. 1531.)

           Existing law  provides that the Controller shall also mail a  
          notice to each person having an address listed in the report  
          from the holder who appears to be entitled to property of the  
          value of fifty dollars ($50) or more that has escheated under  
          the UPL.  The Controller shall mail the notice to the apparent  
          owner for whom a current address is obtained if the address is  
          different from the address previously reported to the  







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          Controller.  (Code Civ. Proc. Sec. 1531.)

           Existing law  authorizes any person, except another state, who  
          claims an interest in property paid or delivered to the  
          Controller to file a claim to the property.  (Code Civ. Proc.  
          Sec. 1540(a).)
          
           This bill  provides, for purposes of the above provisions, that  
          the terms "increased or decreased the amount of the deposit" and  
          "increased or decreased the amount of the funds or deposit"  
          includes the following transactions that are initiated through  
          an electronic fund transfer and are reflected in the books and  
          records of the banking or financial organization, as specified:
           a single or recurring debit transaction authorized by the  
            owner;
           a single or recurring credit transaction authorized by the  
            owner;
           recurring transactions authorized by the owner that represent  
            payroll deposits or deductions; and
           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.
          
                                        COMMENT
           
           1.Stated need for the bill
           
          The author writes:

            This bill clarifies that transactions made through electronic  
            fund transfers (EFTs) shall constitute activity on an account  
            for the purpose of determining whether the state's unclaimed  
            property law requires escheat of the funds after a specified  
            period of inactivity.  AB 2258 will allow all [EFT]  
            transactions to count as a person's "live" contact with their  
            account if their financial institution has communicated  
            electronically or in writing with the owner of the account  
            during the preceding three years.  As a result, "live"  
            accounts will not unnecessarily escheat to the State  
            Controller's Office and account holders will not receive  
            notices requiring them to contact their financial institution  
            to affirm they are still using their account.

          The sponsor, the California State Controller, writes:







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            Under current law, when a person does not have any "live"  
            contact with accounts at a single financial institution (FI)  
            for three years, the FI is required to contact the account  
            owner.  If the FI cannot successfully contact the owner, then  
            SCO [the State Controller's Office] must attempt to contact  
            the owner.  If SCO cannot locate the owner, then the account  
            escheats to 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.

            As a result, thousands of people who have active accounts are  
            unnecessarily sent letters each year warning that failure to  
            contact their FI will result in escheatment to SCO.  In cases  
            where the owner does not respond, the account does escheat . .  
            .  By allowing all ACH transactions to count as a person's  
            live contact with their bank account, AB 2258 will ensure  
            account holders will not receive unnecessary notices requiring  
            contact with an FI to affirm active status, and live accounts  
            will not unnecessarily escheat to SCO. 

           2.Modernization of the Unclaimed Property Law

           As noted above, the Unclaimed Property Law (UPL) has two  
          parallel objectives:  (1) to reunite owners with their unclaimed  
          funds or property; and (2) to give the state, rather than the  
          holder, the beneficial use of unclaimed funds or property.   
          (Bank of America v. Cory (1985) 164 Cal.App.3d 66, 74.)  Despite  
          its protective intent, the UPL occasionally causes accounts at  
          banks and financial institutions to escheat to the state even  
          when they are still in use by the account holder simply because  
          the law does not recognize such use as "account activity."  This  
          bill would update how the UPL defines account activity to take  
          into consideration the modern prevalence of automated and  
          electronic banking.

          Technological advances in the banking and financial sectors have  
          altered how consumers interact with these institutions and  
          conduct transactions with respect to their accounts.  Many  
          consumers now prefer to deposit funds into accounts using  
          automated and electronic methods such as direct deposit, in lieu  
          of receiving and depositing paper checks at a branch office.   







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          Indeed, many employers and government agencies now require funds  
          recipients to accept payment via direct deposit into their  
          accounts instead of by paper check, both because of the cost  
          savings made available through automation and because of the  
          increased security provided by modern electronic banking  
          systems.  According to the California Community Banking Network,  
          who writes in support of this bill:

            [m]any 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 would help eliminate the unnecessary escheat of active  
          accounts to the State Controller's Office by recognizing that  
          certain automated or electronic transactions constitute  
          "activity" for purposes of determining whether an account has  
          become unclaimed.  Specifically, this bill would recognize  
          single or recurring transactions initiated through an electronic  
          fund transfer authorized by the account owner, such as payroll  
          deposits and deductions, deposits of federal benefits including  
          social security and veterans benefits, and pension payments, as  
          qualifying activity to keep an account from escheating.


           Support  :  California Community Banking Network; California  
          Credit Union League

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  California State Controller

           Related Pending Legislation  :  SB 1115 (Leno, 2016) would  
          eliminate an existing requirement that the Controller have a  
          reason to believe a person has failed to report unclaimed  
          property prior to examining that person's records, and would  
          instead state that the Controller may examine records under the  
          Unclaimed Property Law (UPL) even if the holder of those records  
          does not believe that he or she has failed to report property  







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          under the law.  This bill would require a court to award the  
          Controller its costs and attorney fees if he or she prevails on  
          an action to enforce the UPL.  This bill is pending in the  
          Senate Judiciary Committee.




           Prior Legislation :

          AB 355 (Garcia, Ch. 297, Stats. 2015) authorized the State  
          Controller to mail a separate notice to an apparent owner of a  
          United States savings bond, war bond, or military award inside a  
          safe deposit box or other safekeeping repository whose name is  
          shown on or can be associated with the contents of a safe  
          deposit box or other safekeeping repository and is different  
          from the name of the reported owner.

          AB 1275 (Chau, Ch. 128, Stats. 2013) revised the UPL to only  
          allow an owner of, instead of a person with an interest in,  
          property to file a claim with the State Controller's Office for  
          recovery of property that has escheated to the state.  This bill  
          also revised the definition of "owner" to remove a personal  
          representative and include an estate representative,  
          conservator, or guardian.

          AB 1011 (Salas, 2013) would have required the Controller to add  
          interest, at specified rates, to the amount of any claim paid by  
          the Controller to an owner under the UPL.  This bill died in the  
          Assembly Committee on Appropriations.

          AB 2117 (Niello, 2010) would have eliminated the regular  
          transfer of unclaimed property funds from the Abandoned Property  
          Fund to the General Fund, would have required the Controller to  
          add an interest payment to any claim for unclaimed property that  
          the Controller pays to an owner, and would have extended the  
          escheatment period for most types of unclaimed property from  
          three years to five years.  This bill failed passage in the  
          Assembly Committee on Judiciary.

          AB 1291 (Niello, Ch. 522, Stats. 2009) made various reforms to  
          the UPL to strengthen property owners' rights and ensure that  
          property holders reasonably inform customers about risks  
          associated with leaving accounts dormant and the potential for  
          escheatment of property after a period of inactivity.  







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          SB 1319 (Machado, 2008) would have relieved a holder of  
          escheated property of liability if the holder complied with  
          notification requirements, would have increased civil penalties  
          for non-compliance with the UPL, and would have revised  
          notification requirements for holders of unclaimed property.   
          This bill was vetoed by Governor Schwarzenegger.

          SB 86 (Committee on Budget and Fiscal Review, Ch. 179, Stats.  
          2007) modified the procedures governing the disposition of  
          unclaimed property by, among other things, requiring the  
          Controller to mail a notice, as specified, to each person having  
          an address listed for property reported to the Controller under  
          the UPL who appears to be entitled to escheated property valued  
          at $50 or more.  This bill requires the Controller to establish  
          and conduct a notification program designed to inform owners  
          about the possible existence of unclaimed property received  
          pursuant to the UPL, and made specified changes regarding the  
          duties of a holder of property that has escheated and the duties  
          of the Controller after receiving the property, including a  
          requirement that the Controller retain the property for 18  
          months from specified dates.

          AB 378 (Steinberg, Ch. 304, Stats. 2003) reduced the escheatment  
          period from five years to three years for unclaimed bank checks  
          and deposit accounts, and from three years to one year for  
          unclaimed wages and salaries.

          AB 1772 (Harman, Ch. 813, Stats. 2002) prescribed the notice and  
          information that a bank or financial institution must give to  
          owners of financial accounts that are about to escheat to the  
          state, and required the same notice to be given by other holders  
          of tangible and intangible property subject to the UPL.

          SB 673 (Speier, 2001) would have provided for notices to be sent  
          by mail from the Controller to apparent owners of unclaimed  
          property, and for the Controller to take further steps,  
          including searches of other governmental records and outreach to  
          the general public, to alert owners that their unclaimed  
          property had escheated to the state.  This bill was held in the  
          Assembly Committee on Appropriations.

           Prior Vote  :

          Assembly Floor (Ayes 78, Noes 0)







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          Assembly Appropriations Committee (Ayes 20, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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