13-004954 Choice Plus Llc vs. Department Of Financial Services Status: Closed Recommended Order on Friday, April 18, 2014.

Summary: Petitioners did not establish, by a preponderance of the evidence,their entitlement to the unclaimed property at issue.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN RESEARCH AND

INVESTIGATIONS, INC.,

Petitioner,

vs. Case No. 13 - 4953

DEPARTMENT OF FINANCIAL

SERVICES,

Respondent.

_______________________________/

CHOICE PLUS, LLC,

Petitioner,

vs. Case No. 13 - 4954

DEPARTMENT OF FINANCIAL

SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On March 4 , 2014, a duly - noticed hearing was held by video -

teleconference in Tallahassee and Lauderdale Lakes, Florida,

before Jessica E. Varn, an administrative law judge assigned by

the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner American Research and Investigations, Inc. :

Steven D. Fromang, Esquire

1861 Ten th Avenue

Vero Beach, Florida 32960

For Petitioner Choice Plus , LLC :

Michael Farrar, Esquire

Choice Plus, LLC

Suite 890

3470 Northwest 82nd Avenue

Miami, Florida 33122

For Respondent: Josephine Schultz, Esquire

Department of Financial Services

Legal Services, Room 601

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Wheth er either Petitioner is entitled to Unclaimed Property

Account Number 108502717.

PRELIMINARY STATEMENT

On November 13, 2013, the Department of Financial Services

(Department) issued a Notice of Intent to deny the four claims it

had received for the unclaimed property identified as Account

N umber 108502717. Two of those claimants, the two Petitioners in

this case, responded to the Notice of Intent. On November 30,

2013, Choice Plus , LLC (Choice Plus) executed a Petition for

Evidentiary Hearing. On December 3, 2013, American Research and

Investigations, Inc. (American Research ) executed a Petition for

Evidentiary Hearing.

On December 20, 2013, the Department referr ed both cases

to DOAH. By request of the parties, the undersigned consolidated

the cases, and set the hearing for March 3, 2014, by video -

teleconference with sites in Tallahassee and Miami, Florida. On

February 13, 2013, Choice Plus filed a Motion for T elephonic

Testimony, which although granted by the undersigned over the

objection of the other two parties, was rendered moot because the

intended witness passed away prior to the hearing. With the

agreement of the parties, the hearing was re - scheduled fo r

March 4, 2014, by video - teleconference with sites in Tallahassee

and Lauderdale Lakes, Florida.

At the hearing, American Research presented the testimony of

Riley Welchance, President of American Research; American

Research Exhibits 1 - 5 and 8 - 10 were ad mitted into evidence.

Choice Plus presented the testimony of its attorney; Choice Plus

Exhibit 1 was admitted into evidence. The Department presented

the testimony of Phillip Carlton, the Assistant Bureau Chief for

the Bureau of Unclaimed Property; Depar tment Exhibits 1 - 5 were

admitted into evidence.

On March 25, 2013, a one - volume T ra nscript was filed . Each

part y f iled a Proposed Recommended Order , all of which were

con sidered in preparation of this Recommended O rder.

All statutory references are to the current version of

Florida Statutes, except as otherwise indicated.

FINDING S OF FACT

1. The Department receives unclaimed property and disburses

that property from the State of Florida Treasury to the rightful

owners. During the last fiscal year, t he De partment ' s Bureau of

Unclaimed Property received in excess of $300,000,000 of

unclaimed property, and paid claims in excess of $212,000,000.

2. The Department has the duty to evaluate the merits of

each claim for unclaimed property and to pay only those c laimants

who can establish, by a preponderance of the evidence, that they

are the rightful owners of the unclaimed property.

3. Anja Sova was born in 1921 in Finland, but resided in

Lake Worth, Florida. Her husband ' s brother was married to Iina

Sova, who resided in Finland. Anja Sova opened several accounts

with diff erent banks during her lifetime; t wo of those accounts

were opened at Washington Mutual Bank , and she designated Iina

So va, her sister - in - law, and Silja Lappalainen, her grand - niece

and Iina ' s granddaughter , as joint pay - on - death beneficiaries.

4. In January 2001, at the age of 79, Anja Sova opened a

C ertificate of D eposit (CD) account with Sterling Bank,

depositing $95,000.00 in the account . The CD designated t he pa y -

on - death beneficiary as Silja Sova. Anja Sova signed the

signature card for this CD three times, once right next to the

name of the designated beneficiary, Silja Sova. The bank had no

other information as to the beneficiary.

5. Anja Sova died in a car accident in 2002. T he accounts

with Washington Mutual were paid to the designated beneficiaries,

h er sister - in - law, and her grand - niece.

6 . Unclaimed Property Account Number 108502717 consists of

the matured Sterling Bank CD , worth $127,031.97 , and designates

Silja Sova as the pay - on - death beneficiary. It had been held by

St erling Bank until its remittance to the Department as unclaimed

property.

7 . American Research is a corporate claimant

representative, and represents the residual heirs of Anja Sova ' s

estate.

8 . Choi ce Plus is also a corporate claimant representative,

and represents Silja Lappalainen, Anja Sova ' s grand - niece.

9. American Research ran searches through various private,

social , and governmental databases in the United States, and

found no person name d Silja Sova.

10. In 2013, American Research also requested and received

an Extract from the Population Information System in Finland.

This database was created in 1969. The Extract revealed one

person named Silja Sova; that person is a child born in 2 009, who

lives in Finland. No credible evidence was presented on whether

the Extract includes only living persons, or if it also includes

deceased persons (persons who were born between 1969 and 2001 and

died before November 2013, when the search was done through the

Extract) .

11. American Research argued that Silja Sova simply does

not exist. It is unknown , however, whether Anja Sova ' s husband

had more brothers with the surname Sova, or whether Anja Sova ' s

father - in - law had brothers. The undersigned ca nnot find, given

the scant evidence presented, that Silja Sova does not exist , and

never existed, in Finland.

12 . American Research also proposed the theory that Anja

Sova purposely created a fictitious name when designating Silja

Sova as the beneficiary. There was no credible evidence

p resented to support this theory, either; it was mere

speculation.

13. An Order for Subsequent Administration was entered by a

probate court in Palm Beach County, Florida, on April 11, 2013.

It establishes the residual be neficiaries o f Anja Sova ' s estate,

but it does not include Silja Lappalainen, Anja Sova ' s surviving

grand - niece.

1 4 . Choice Plus was also unable to locate a person named

Silja Sova, and argued that the CD mistakenly designated the

pay - on - death beneficiar y as Silja Sova when it should have read

Silja Lappalainen , Anja ' s grand - niece who had also been a

beneficiary on the Washington Mutual accounts . Curiously, Choice

Plus represents Silja Lappalainen, but did not offer testimony

from her at the hearing. 1 /

1 5 . Instead, Choice Plus offer ed into evidence an affidavit

from Iina Sova, the deceased 's sister - in - law, disclaiming any

interest in the account . The affidavit is not found credible or

reliable; it is written in a language that the affiant did not

spea k, there is no indication that a certified translator was

present while the statement was being made, and the affidavit is

replete with hearsay.

1 6 . Unfortunately, t here was no credible evidence presented

to support Choice Plus ' s argument that the desig nation of Silja

Sova as the pay - on - death beneficiary was indeed a mistake that a

then 79 - year - old g reat - a unt made .

1 7 . The record is void of any credible evidence which meets

the preponderance of the evidence standard, entitling either

Petitioner to Unc laimed Property Account N umber 108502717.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

19. In any administrative proceeding for the determination

of a claim for unclaimed property, the claimant has the burden of

proving entitlement to the property by a preponderance of the

evidence. See § 717.126, Florida Statutes.

20. The hearing is a de nov o proceeding intended to

formulate agency action, not to review action taken earlier.

Beverly Enters. - Fla., Inc. v. Dep ' t of Health & Rehab. , 573 So.

2d 19, 23 (Fla. 1st DCA 1990).

21 . There is simply no evidence to support either of

Petitioner ' s argumen ts as to their entitlement to the unclaimed

property. The arguments were mere speculation; accordingly,

neither Petitioner established, by a preponderance of the

evidence, their entitlement t o Unclaimed Property Account Number

108502717.

RECOMMENDATION

Ba sed on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that American Research and Investigations,

Inc. ' s claim for Unclaimed Property Account N umber 108502717 be

DENIED. It is also RECOMMENDED that Choice Plus , LLC ' s claim for

Unc laimed Property Account Number 108502717 be DENIED.

DONE AND ENTERED this 18th day of April , 2014 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings

The D eSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of April, 2014 .

ENDNOTE

1 / The grand - ni ece, Silja Lappalainen, could have provide d

relevant testimony as to the relationship she had with Anja Sova.

The fact that Silja Lappalainen was a named beneficiary o n two

other accounts c ould have perhaps, coupled with a credible

statement from Silja he rself, met the preponderance of the

evidence burden .

COPIES FURNISHED:

Josephine Schultz, Esquire

Department of Financial Services

Legal Services, Room 601

200 East Gaines Street

Tallahassee, Florida 32399

Michael J. Farrar, Esquire

Choice Plus, LLC

Suite 890

3470 Northwest 82nd Avenue

Miami, Florida 33122

Stephen D. Fromang, Esquire

1861 10th Avenue

Vero Beach, Florida 32960

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tall ahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.