BILL ANALYSIS Ó AB 2258 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2258 (Eggman) As Amended August 18, 2016 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |78-0 |(May 12, 2016) |SENATE: |39-0 |(August 23, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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. AB 2258 Page 2 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: AB 2258 Page 3 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 AB 2258 Page 4 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 AB 2258 Page 5 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 AB 2258 Page 6 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 AB 2258 Page 7 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 AB 2258 Page 8 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