18-003296 Helena Mason vs. Department Of Financial Services, Bureau Of Unclaimed Property, And James Maher Status: Closed Recommended Order on Wednesday, October 17, 2018.

Summary: Mr. Maher filed first complete claim for unclaimed property and therefore was entitled to proceeds; Ms. Mason's claim denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELENA MASON,

Petitioner,

vs. Case N o. 18 - 3296

DEPARTMENT OF FINANCIAL

SERVICES, BUREAU OF UNCLAIMED

PROPERTY, AND JAMES MAHER,

Respondent s.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alexander conducted a hearing

in this matter by video teleconference on September 7, 2018, at

sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Brandon Rose, Esquire

Smith & Rose, P.A.

2060 Winter Springs Boulevard

Oviedo, Florida 32765 - 9347

For Respondent: Kimberly V. Masson, Esquire

(Department) Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: Jeffrey M. Koltun, Esquire

(Maher) Kane & Koltun

Suite 100

150 Spartan Drive

Maitland, Florida 32751 - 3463

STATEMENT OF THE ISSUE

The issue is whether Helena Mason or James Maher is entitled

to the proceeds from the sale of the contents in a safe deposit

box remitted as unclaimed property to the Department of Financial

Services, Division of Unclaimed Property (Department ).

PRELIMINARY STATEMENT

On January 16, 2018, the Department notified Asset Finders,

LLC (Asset Finders), then Petitioner's claim representative,

that a claim filed on her behalf for the proceeds from the sale

of certain unclaimed property was denied and that an earlier -

filed claim by James Maher for the same proceeds was approved.

Asset Finders timely filed a request for a hearing on behalf of

Ms. Mason to contest the decision. Shortly thereafter,

Petitioner engaged the services of an attorney. After i nitially

scheduling the matter for an informal hearing, the Department

determined that disputed issues of material fact exist, and the

case was referred to the Division of Administrative Hearings.

At the final hearing, Mr. Maher, the proposed winner in t his

dispute, was added as a co - respondent. Ms. Mason's ore tenus

request to add Asset Finders as a substantially affected party

was denied. Except for assisting Ms. Mason early in the process,

Asset Finders never has submitted any paper alleging that its

substantial interests are affected, and it did not appear at the

final hearing or otherwise indicate that it still represented

her. The style of the case has been amended to reflect these

rulings. Finally, the Department's Motion to Dismiss on the

groun d no disputed issues of material fact exist is denied.

At the final hearing, Ms. Mason testified on her own behalf.

The Department presented the testimony of one witness.

Department Exhibits 1 through 4 were accepted in evidence.

Mr. Maher testified on his own behalf. Late - filed Maher

Exhibit 1 was accepted in evidence.

A one - volume Transcript of the proceeding was prepared.

Proposed findings of fact and conclusions of law were filed by

the parties on October 8, 2018, and have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is charged with the responsibility and

duty of delivering or paying over to a claimant property paid or

delivered to the Department under the provisions of the Unclaimed

Proper ty Act, codified in chapter 717, Florida Statutes (2017).

2. Unclaimed property is property that has been abandoned

or lost by its owner for an extended period of time. Over the

last 15 years or so, the Department has processed approximately

5,000,000 claims and paid $3.1 billion to the claimants. Claims

concerning the contents of safe deposit boxes make up

approximately five percent of the total claims processed by the

Department.

3. On December 27, 1996, Mr. Maher opened a safe deposit

box account w ith SunTrust Bank in Orlando. The account was

opened in the names of James Maher "or" Helena Mason, a friend

who had resided with him for several years. Mr. Maher added her

name to the account because he was unmarried, had no heirs, and

did not want the contents of the safe deposit box to escheat to

the State. Mr. Maher paid all fees on the box until 2010 when he

stopped because of financial problems. The relationship between

the two has ended.

4. An "or" account means that either person listed on the

account legally may claim all or part of the contents held in the

account at any time prior to the items being declared unclaimed

and then sold by the Department. § 717.12403, Fla Stat. See

also § 655.937, Fla. Stat. (unless specifically provided

otherwi se in the lease or rental agreement, all lessees are

permitted access to the safe deposit box and its contents). When

the account was opened, Mr. Maher and Petitioner also agreed to

be bound by the bank's Safe Deposit Box Rules and Regulations,

which prov ide that each person had access to the "entire contents

of the box." Dep't Ex. 4. Bank records reveal that between

December 1996 and July 2005, Mr. Maher accessed the box nine

times, while Ms. Mason never accessed the box. Neither person

listed on the a ccount attempted to remove any of the contents of

the safe deposit box before the contents were treated as

unclaimed property and sold.

5. In 2015, SunTrust Bank reported to the Department an

unclaimed safe deposit box in the names of James Maher or Hel ena

Mason for the 2014 reporting year. The report was made after

rent had not been paid on the box since 2010 and the account had

become dormant for at least three years. If the contents of a

safe deposit box are not returned to the owners of the account

within a three - year dormancy period, the holder (the bank) must

report and remit that property to the Department. Beginning no

later than April 2012, the bank attempted to notify the two that

the account was dormant. Dep't Ex. 4.

6. The report states that Mr. Maher's address was listed as

2227 Catbriar Way, Oviedo, while Ms. Mason's address was listed

as 1044 Chatham Pines, Apartment 20, Winter Springs. The report

also states that the safe deposit box contained items of jewelry,

coins, and miscellaneo us personal papers, such as deeds, tax

returns, surveys, and insurance policies.

7. The jewelry and coins were sold by the Department

pursuant to section 717.122 , Florida Statutes, at an unclaimed

property auction on July 13, 2017. The current amount h eld by

the Department in the unclaimed property account is $18,871.46.

8. Any person claiming an interest in unclaimed property

may file a claim with the Department. § 717.124(1), Fla. Stat.

Claims submitted to the Department must be made on prescribed

forms together with documentation proving entitlement to the

unclaimed property. Fla. Admin. Code R. 69G - 20.0021(1). A claim

form must be fully completed and manually signed by the claimant

in order to be considered "complete." Fla. Admin. Code R. 69G -

2 0.0021(1)(b). The claimant must submit proof that he/she is the

person listed on the account and entitled to the property. Fla.

Admin. Code R. 69G - 20.0021(4)(c)2.

9. The Department always has construed a complete claim as

one in which the claimant pr ovides proof that he/she is the same

individual listed on the account. If this is established, that

person is "entitled" to the proceeds. The Department does not

attempt to sort out who actually owned the contents of the safe

deposit box before the conte nts were deemed to be unclaimed

property. Therefore, the issue of which person listed on the

account actually owned all or part of the contents is immaterial

in determining who is entitled to the proceeds.

1 0. On October 26, 2017, the Department received a claim

filed on behalf of James Maher for the unclaimed property

account. In support of his claim, Mr. Maher provided a copy of

his driver's license and a Notice of Change in Benefits from the

United States Social Security Administration, which demonstr ated

a connection to both the social security number submitted with

his claim and the Catbriar Way address reported to the

Department. The claim was deemed to be complete when it was

filed on October 26, 2017.

11. Mr. Graham, the d irector of the Depart ment's Division

of Unclaimed Property, gave a comprehensive description of the

process used by the Department when conflicting claims are filed.

His testimony was not disputed. He established that Mr. Maher's

claim was "complete," "it meets every single item required to

prove that it's right," and "it was done correctly."

12. On November 13, 2017, the Department received a second

claim filed by Asset Finders on behalf of Ms. Mason for the same

unclaimed property account. In support of her claim, Asset

Finders provided a copy of Ms. Mason's driver's license and the

results of a search, which demonstrated a connection between

Ms. Mason and the address reported by her to the Department. The

claim was deemed to be complete when it was filed on November 13,

2017.

13. After reviewing the competing claims, and verifying the

information provided by the bank, on January 16, 2018, the

Department issued a notice of intent to deny the claim filed on

behalf of Ms. Mason and to approve the claim submitted by

Mr. Maher. The basis for this decision was that Mr. Maher was

the first person to submit a complete claim. This decision

comports with the statutory mandate in the "Conflicting Claims

Statute," section 717.1241(1)(a), which provides that the first

per son to submit a complete claim will be given the proceeds.

14. Ms. Mason argues that the claim filed by Mr. Maher was

incomplete because rule 69G - 20.0021(1)(b) requires that the form

must be signed by all persons making a claim, and Mr. Maher

failed to secure her signature on his claim form before he

submitted it to the Department. This construction of the rule

would produce an absurd result and has been rejected.

15. Petitioner also argues that she is the owner of the

jewelry and therefore entitled to the proceeds. She testified

that the jewelry was first owned by her grandmother, passed on to

her mother, and then given to her in 1995. For safekeeping

purposes only, Mr. Maher then placed the jewelry in the safe

deposit box. On the other hand, Mr. Ma her testified that the

jewelry belonged to him, and he received it after his mother

passed away in 1996. To resolve this dispute, however, it is

unnecessary to determine who actually owned the jewelry. Once

the contents are deemed to be unclaimed, owners hip is not a

statutory consideration in resolving conflicting claims. 1/

16. In the same vein, Petitioner argues that a claimant

must show entitlement to the property in order to prevail and

Mr. Maher failed to do so. On this issue, the Department

constr ues the statute to mean that if a claimant is the same

person named on the account, he/she is "entitled" to the

proceeds. This is a reasonable and logical interpretation of the

statute. Mr. Maher satisfied this requirement.

17. Petitioner argues that ev en though Asset Finders did

not file her claim until November 13, 2017, she should prevail

because she signed her claim form on October 21, 2017, before

Mr. Maher signed and filed his claim. This contention is

rejected, as the relevant statutory test is clear and requires

the Department to award the proceeds to the claimant filing the

first complete claim.

18. Finally, Petitioner argues that she filed an affidavit

with her application, while Mr. Maher did not. However,

affidavits are required only if th e proceeds from the sale are

less than $250.00. § 717.124(3), Fla. Stat.

19. By a preponderance of the evidence, Mr. Maher has

established entitlement to the proceeds.

CONCLUSIONS OF LAW

20. In any proceeding for determination of a claim, "the

burden sh all be upon the claimant to establish entitlement to the

property by a preponderance of evidence." § 717.126 (1) , Fla.

Stat.; Fla. Admin. Code R. 69G - 20.0022(1). Therefore, Mr. Maher

has the burden of proving that he filed a complete claim prior to

the cl aim filed by Petitioner.

21. In making a determination regarding the merits of a

claim for unclaimed property, the Department shall rely on

applicable statutory, regulatory, common, and case law. See

§ 717.1244, Fla. Stat.

22. Rule 69G - 20.0021(1) p rovides that the Department will

only process claims that are complete. The rule goes on to

provide that complete claims are those that have all blanks

filled in and are manually signed and dated by the claimant, and

that they contain all supporting docum entation required by

rules 69G - 20.0021 and 69G - 20.0022. The latter rule requires a

claimant to provide documentation to establish that he/she is the

same person listed on the account.

23. When conflicting claims have been received by the

Department, th e property shall be given "[t]o the person

submitting the first claim received by the Division . . . that is

complete or made complete." § 717.1241(1)(a), Fla. Stat.

24. By a preponderance of the evidence, Mr. Maher has

established that he is the same person listed on the safe deposit

box account, he has filed a complete application, and he

submitted the first claim received by the Department. Therefore,

he is entitled to the proceeds of the sale.

25. In making its determination that Mr. Maher is ent itled

to the proceeds, the Department relied on section 717.12403(2),

which provides that when unclaimed demand, savings, and checking

accounts are reported by financial institutions in the name of

two or more persons, either person listed on the account m ay

claim the entire amount held in the unclaimed property account.

Petitioner argues, however, that the statute does not refer to

safe deposit box accounts and, therefore, cannot apply to the

instant dispute. Instead, she argues that rule 69G - 20.0028(1)

should control the outcome. That rule provides that when

accounts are not unclaimed demand, savings, or checking accounts

formerly held by a financial institution, "each owner is entitled

to receive a percentage share of the unclaimed property," and if

th ere are two owners, "each owner will receive 50 percent."

Because neither claimant established clear ownership to the

jewelry, Ms. Mason argues that under the foregoing rule, the

proceeds of the sale of the jewelry ($18,598.11) should be split

between the two.

26. Even though section 717.12403 refers only to an

"unclaimed demand, savings, or checking account in a financial

institution," a safe deposit box is an account that functions the

same as a demand, saving, or checking account, except that it

cont ains tangible property. Therefore, it is not unreasonable,

or clearly erroneous, for the Department to interpret the statute

in the manner that it does when evaluating claims for safe

deposit boxes. The statute presumes that either person listed on

the a ccount may claim the entire amount held in the unclaimed

property account. The delivery of the proceeds to Mr. Maher is

correct.

27. Finally, Petitioner cites the case of Bechtel v. Estate

of Bechtel , 330 So. 2d 217, 219 (Fla. 2d DCA 1976), decided long

before the enactment of chapter 717, which held that even though

a person may have the right of access to the safe deposit box,

this does not mean that the person has a right to ownership of

the contents found in the box. The case is cited ostensibly for

the proposition that filing the first complete claim with the

Department does not establish entitlement to, or ownership of,

the jewelry.

28. Petitioner's reliance on Bechtel is misplaced and has

no application here, as that case involved a dispute in pr obate

court over the ownership of the contents of the decedent's safe

deposit box, and not in an unclaimed property dispute under

chapter 717. Also, section 655.937, enacted after Bechtel ,

states that, unless specifically provided otherwise in the lease

o r rental agreement, all lessees are permitted access to the safe

deposit box and its contents. In this case, the bank's rules and

regulations specifically provided that either person listed on

the account had access to "the entire contents of the box."

D ep't Ex. 4. Both claimants agreed to comply with that

requirement when the account was established. The argument

accordingly is rejected.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Departme nt of Financial Services enter

a final order approving the delivery of the proceeds from the

sale of the contents of the safety deposit box to Mr. Maher.

DONE AND ENTERED this 1 7 th day of October, 2018, in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cle rk of the

Division of Administrative Hearings

this 17 th day of October , 2018 .

ENDNOTE

1/ When asked why she did not remove the jewelry from the box

when she moved out of Mr. Maher's home in 2012, Ms. Mason

testified that she did not consider her depart ure a "complete

split," and she hoped the two would get back together again. Had

the jewelry actually been owned by Ms. Mason (and especially as a

purported family inheritance), the undersigned finds it highly

unlikely that she would have made no effort s ince 2012 to

retrieve the jewelry from the box.

COPIES FURNISHED:

Jeffrey M. Koltun, Esquire

Kane & Koltun

Suite 100

150 Spartan Drive

Maitland, Florida 32751 - 3463

(eServed)

Kimberly V. Masson, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

(eServed)

Brandon Rose, Esquire

Smith & Rose, P.A.

2060 Winter Springs Boulevard

Oviedo, Florida 32765 - 9347

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Service s

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

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.