BILL ANALYSIS                                                                                                                                                                                                    �






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 1275 (Chau)
          As Introduced
          Hearing Date: June 11, 2013
          Fiscal: No
          Urgency: No
          TMW


                                        SUBJECT
                                           
                        Unclaimed Property:  Filing of Claims

                                      DESCRIPTION  

          This bill would revise the Unclaimed Property Law 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 would  
          also revise the definition of "owner" to remove a personal  
          representative and include an estate representative,  
          conservator, or guardian.  

                                      BACKGROUND  

          The Unclaimed Property Law (UPL), as revised in 1968, provides  
          for the "escheat" of unclaimed personal property.  Escheat is  
          the reversion of property to the state by reason of the failure  
          of the owner to inherit or claim it.

          The UPL establishes procedures to be followed when property goes  
          unclaimed, generally for a period of three years, and reverts 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 and 1532.)  The UPL  
          also sets forth the procedure for any person who claims an  
          interest in the property to file a claim to recover the property  
          from the state.  (Code Civ. Proc. Secs. 1540-1542.)

          There are three significant players under the UPL:  the owner,  
          the holder, and the state.  The "owner" is the person to whom  
          the property actually belongs.  The "holder" is the person who  
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          has possession of but no interest in the unclaimed property.  A  
          holder is simply a trustee of the property while the property is  
          in the possession of the holder, and might be a bank (holds  
          deposits of owner's money), or a business that has issued a  
          check to an individual or other business.   

          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 (1985) 164 Cal.App.3d 66,  
          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, supra, 164  
          Cal.App.3d at p. 74.)  

          This bill, sponsored by the California State Controller, would  
          remove the ability of a person with an interest in the escheated  
          property to file a claim with the California State Controller  
          and only allow the owner to file the claim.  This bill would  
          also revise the definition of "owner" and make other technical  
          and conforming changes. 

                                CHANGES TO EXISTING LAW
           
           Existing law  , the Unclaimed Property Law (UPL), requires holders  
          of personal property unclaimed for more than three years, as  
          specified, to file a report and turn over that property to the  
          state.  (Code Civ. Proc. Secs. 1520, 1530.)

           Existing law  authorizes the Controller to bring an action to  
          enforce provisions of the UPL and provides for the imposition of  
          penalties and interest against holders who willfully fail to  
          comply with the UPL.  (Code Civ. Proc. Sec. 1576.)

           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).)

           Existing law  requires the Controller to consider each claim  
          within 180 days after it is filed and authorizes the Controller  
          to hold a hearing and receive evidence on the claim.  (Code Civ.  
          Proc. Sec. 1540(b).)

           Existing law  defines "owner" to mean the person who had a legal  
          right to the property prior to its escheat, his or her heirs,  
                                                                      



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          his or her legal representative, or a public administrator.   
          (Code Civ. Proc. Sec. 1540(d).)

           This bill  would remove the ability of a person with an interest  
          in the property to file a claim for the property, and instead,  
          provide that any person, who claims to be the owner of the  
          property, may file the claim.

           This bill  would clarify that the Controller must consider the  
          claim for escheated property within 180 days after the claim is  
          filed in order to determine if the claimant is the owner.

           This bill  , in the definition of "owner," would remove "personal  
          representative" and add estate representative, guardian, and  
          conservator. 

           This bill  would declare that only an owner may file a claim with  
          the Controller to recover the escheated property.

           This bill  would make other technical and conforming revisions.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
            
            [Code of Civil Procedure (CCP)] Section 1540(d) defines an  
            "owner" as "the person who had legal right to the property  
            prior to its escheat, his or her heirs, his or her legal  
            representative, or public administrator acting pursuant to the  
            authority granted in Sections 7660 and 7661 of the Probate  
            Code."  This is the definition of owner that has always been  
            applied in the Unclaimed Property Program. However, in  
            Weingarten Realty Investors v. Chiang (Cal. App. 4th, December  
            19, 2012), a California court of appeal considered whether a  
            judgment creditor could claim property escheated to the state  
            on behalf of the party owing a debt to the creditor and ruled  
            that the language in CCP [S]ection 1540(a) permits any person  
            with an interest in the property to claim it, regardless of  
            how "owner" is defined in CCP Section 1540(d).  

            Under the court's interpretation of CCP [S]ection 1540, anyone  
            who has an interest in the property even if they did not own  
            the property prior to escheat can file a claim regardless of  
            the potential invalidity of the claim and no matter how  
                                                                      



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            contingent the interest.  Since the program's inception in  
            1959, the legislative direction the Controller has used to  
            interpret the UPL required the Controller to pay the claim to  
            the property owner at the time of escheatment. 

            Should the Weingarten decision stand, all parties with any  
            potential interest, including creditors, will have the right  
            to submit claims for property escheated to the state,  
            increasing the likelihood of competing claims as well as  
            litigation filed by parties over such property.  If a creditor  
            is allowed to file a claim, the Unclaimed Property Program may  
            have to validate the present existence of a third-party debt.   
            This is well beyond the focus and scope of the UPL.  Moreover,  
            the court's interpretation introduces uncertainty into the law  
            regarding which claims the Controller should approve for  
            payment, and in which order. 

            AB 1275 would remedy this problem by clearly defining the term  
            "owner" for purposes of filing an unclaimed property claim,  
            and specifying that only an owner may file a claim for  
            unclaimed property with the State Controller. AB 1275 will  
            provide for consistent application of the UPL, fair and  
            equitable payment of claims to owners, and reduce potential  
            litigation associated with the interpretation of the current  
            UPL statute while helping reduce frivolous lawsuits filed by  
            parties that are not eligible to file a claim.

          2.  Removing ability of interested person to claim owner's  
            unclaimed property  

          Existing law, the Unclaimed Property Law, provides procedures  
          regarding property that has gone unclaimed by the owner and is  
          subsequently transferred by the holder of the property to the  
          state (escheat).  Existing law provides that a person with an  
          interest in the property may file a claim with the State  
          Controller's Office to recover the property.

          This bill would clarify that only an owner (as opposed to an  
          "interested person" under existing law) may file a claim with  
          the State Controller's Office to recover property that has  
          escheated to the state.   This bill would also revise the  
          definition of "owner" under the Unclaimed Property Law to  
          include an estate representative and remove and replace  
          "personal representative" with conservator or guardian.

          The author asserts that this bill would address several issues  
                                                                      



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          raised in a recent court decision, Weingarten Realty Investors  
          v. Chiang (2012) 212 Cal.App.4th 163, which held that a judgment  
          creditor could claim, as an interested party, the judgment  
          debtor's escheated property.  Proponents of this bill assert  
          that this decision creates confusion and uncertainty because it  
          allows for the possibility of multiple parties with an interest  
          in the property to submit competing claims.  The State  
          Controller's Office would have to approve the first claim  
          submitted, without any guidance as to which claims to the  
          property should be approved and in what order. 

          This bill would remedy these issues by removing the ability of  
          an interested party to claim the escheated property and instead  
          would only allow the owner, or the estate representative,  
          conservator, or guardian of the owner, to claim the property.

          3.  Opposition concerns  

          United Asset Recovery (UAR) is opposed to this bill because they  
          claim that assignees and creditors are parties that hold a legal  
          interest, title, and right in property.  UAR asserts that  
          although anyone can claim against the property, only persons  
          with legal rights to the property can recover it.  Furthermore,  
          UAR states that the Weingarten court properly recognized that  
          the judgment creditor had a valid legal right to the property.   
          UAR further asserts that this bill and several court cases call  
          into question the motives of the State Controller, who they  
          claim has wrongfully denied several property claims.
          
          In response to these arguments, the author asserts that "the  
          [UPL] was created in 1959 to ensure 'property owners [are]  
          reunited with their property' (Code of Civil Procedure [Section]  
          1501.5(c)). The original intent of the [UPL] was that the State  
          would act as a 'protector' to safeguard the citizens' lost  
          properties.  This intent is laid out in Code of Civil Procedure  
          [Section] 1501.5(c) and reinforced in Bank of America v. Cory  
          (1985) 164 Cal. App .3d 66, 74.  The unclaimed property program  
          is not set up as a clearinghouse for creditors.  AB 1275 will  
          help ensure that the purpose of the UPL is carried out,  
          reuniting owners, not creditors, with their property.    
          Creditors who never had a legal right to property prior to  
          escheat cannot be 'reunited' with property in which they never  
          had title.  Under this bill, only persons who had the legal  
          right to the property, before title vested in the State, will be  
          reunited with their property.  Furthermore, creditors already  
          have other remedies available to pursue debts owed to them  
                                                                      



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          outside of going after unclaimed property.  For instance, they  
          can garnish a person's wages or get a lien placed on the  
          property of the person who owes them money.  Finally, it is  
          within the authority of the legislature to change or clarify the  
          laws, even in response to a court decision."


           Support  :  Consumer Federation of California; Professional  
          Fiduciary Association of California

           Opposition  :  United Asset Recovery

                                        HISTORY
           
           Source  :  California State Controller

           Related Pending Legislation  :  AB 1011 (Salas) would require the  
          Controller to add interest, at specified rates, to the amount of  
          any claim paid by the Controller to an owner under the Unclaimed  
          Property Law.  AB 1011 is currently in the Assembly Committee on  
          Appropriations.

           Prior Legislation  :

          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.  AB 2117 failed passage in the  
          Assembly Committee on Judiciary.

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

          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.  SB  
          1319 was vetoed by Governor Schwarzenegger.  
                                                                      



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          AB 378 (Steinberg, Ch. 304, Stats. 2003) reduced the escheatment  
          period from five years to three years for bank checks and  
          deposit accounts, and from three years to one year for 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 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.  SB 673 was held in  
          Assembly Committee on Appropriations.

           Prior Vote  :

          Assembly Committee on Judiciary (Ayes 10, Noes 0)
          Assembly Floor (Ayes 75, Noes 0)

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