BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2258


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          2258 (Eggman)


          As Amended  August 18, 2016


          Majority vote


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          |ASSEMBLY:  |78-0  |(May 12, 2016) |SENATE: |39-0  |(August 23,      |
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          Original Committee Reference:  JUD.


          SUMMARY:  Clarifies that transactions that are initiated  
          electronically shall constitute activity on the account for the  
          purpose of determining whether the law requires escheat of funds  
          after a specified period of inactivity.  Specifically, this  
          bill:   


          1)Provides that a holder of property shall, commencing on or  
            before January 1, 2018, regard the following transactions that  
            are initiated electronically and are reflected in the books  
            and records of the banking or financial organization as  
            evidence that an owner has increased or decreased the amount  
            of the funds or deposit in an account:


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









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             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.


          The Senate amendments clarify the holder's duty to treat  
          specified electronic transactions as evidence of activity by the  
          owner to increase or decrease funds in his or her account, and  
          postpone operation of this change to current law by one year,  
          until January 1, 2018.


          EXISTING LAW, the Unclaimed Property Law:   


          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 (CCP) 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: 










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             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.  (CCP 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 2a) through  
            c) above, and the banking organization has communicated  
            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.  (CCP 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.  (CCP Section 1513 (a)(2).)


          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.


          COMMENTS:  This bill, sponsored by the State Controller's Office  
          (SCO), seeks to ensure that common electronic banking  








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          transactions are regarded as activity within 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 owner of the account that require that owner to  
          affirm the account's active status.  In addition, the author  
          contends this change 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" under current law.


          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  
          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  








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          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.  (CCP 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.  (CCP 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, 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  








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          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  
               when there is no "live" contact between an account  
               owner and their account for three years, and the  
               financial institution is unable to 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.  


          As recently amended in the Senate, this bill seeks to address  
          this problem by requiring holders to regard specified  
          transactions that are initiated electronically and are reflected  
          in the books and records of the banking or financial  
          organization as evidence that an owner has increased or  
          decreased the amount of the funds or deposit in an account.   
          This bill specifies these transactions as follows:  1) a single  
          or recurring debit transaction authorized by the owner; 2) a  
          single or recurring credit transaction authorized by the owner;  
          3) recurring transactions authorized by the owner that represent  
          payroll deposits or deductions; 4) 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.  In order to give  








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          banks and other financial institutions more time to develop  
          procedures to comply with this new requirement, Senate  
          amendments postpone the operative date of this legislation by  
          one year so that, if enacted, it would take effect on January 1,  
          2018.


          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 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 electronic funds transfer (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 representatives of some credit unions and banks,  
          however, this concern is mitigated because the financial  
          industry already uses multiple strategies to ensure a deceased  








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          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. 


          Analysis Prepared by:                                             
          Anthony Lew / JUD. / (916) 319-2334  FN: 0004709