20-002632 Global Discoveries Ltd., Llc, On Behalf Of Jean Aristide vs. Department Of Financial Services, Division Of Unclaimed Property Status: Closed Recommended Order on Tuesday, October 6, 2020.

Summary: Claimant failed to prove entitlement to proceeds of cashier's check on which he was named a co-payee, as he provided no details that would support a finding that remitter of check had ever delivered it to claimant.

S TATEMENT OF T HE I SSUE

The issue is whether, pursuant to section 717.126, Florida Statutes , 1

Petitioner 2 has proved that it is entitled to proceeds in the amount of

$128,788.36 from an unclaimed cashier's check.

P RELIMINARY S TA TEMENT

On July 3, 2018, Petitioner filed with Respondent a claim to ownership of

the proceeds from a $128,788.36 cashier's check last held by "Bank of

America -- Washington." The claim states that the primary owner is

Claudy Joseph and co - owners are Erlande Merceron and Petitioner's

principal, Jean Aristide, under an account listing the owners with an "or."

On November 11, 2019, Respondent issued a Notice of Intent (NOI) to

deny the claim. The NOI acknowledges that Respondent has received the

proceeds of th e cashier's check with the "Names: Claudy Joseph or Jean

Aristide or Erlande Merceron" from "Bank of America -- Washington." The

NOI states that Mr. Aristide has failed to prove that he is the same person as one of the persons named as an owner, and he has f ailed to explain the

circumstances surrounding the preparation of the cashier's check.

At some point, Petitioner requested a hearing. The day prior to the date of

an informal hearing, a hearing officer determined that factual disputes

necessitated the tra nsmittal of the claim to DOAH, so she issued an Order of

Referral on June 2, 2020.

Neither party called a witness at the hearing. The parties jointly offered

into evidence six exhibits: Joint Exhibits 1 through 6. Respondent offered into

1 All references to sections are to Florida Statutes, and all statutory references are to 2019.

2 All references to "Petitioner" include Mr. Aristide and his attorney - in - fact, as named in the

case style.

evidence two exh ibits: Respondent Exhibits 1 and 2. All exhibits were

admitted.

The court reporter filed the transcript on September 1, 2020. The parties

filed proposed recommended orders on September 11, 2020.

F INDINGS OF F ACT

1. On April 15, 2011, Bank of America remi tted to the state of Florida, as

unclaimed property, $128,788.36 in proceeds from one or more cashier's

checks. Neither the original check nor a copy of the original check is available.

2. A synopsis of Bank of America records identifies the amount of the

check or checks, the form of the property as "cashiers checks," an issue date of October 12, 2005, and the existence of "multi[ple] owners." If there were

multiple cashier's checks, the total amount of the checks was $128,788.36.

For ease of reference, the cashier's check or cashier's checks will be referred

to in the singular.

3. The synopsis lists the "title" as "Claudy Joseph Erlande Merceron Jean

Aristide." There are three variants of the same form -- one for each individual

named in the preceding sentenc e. In each, the first name listed is Claudy

Joseph. For the two other variants, this name is preceded by "1st Payee." It

thus appears that these three persons were named as payees on the cashier's

check.

4. In a cryptic reference, each variant of the synop sis states:

"RELATIONSHIP CD: OR." The placement of this fragment of information

follows the description of each payee. Although this fragment of information

immediately precedes the above - quoted "title" information that names the

three payees, it is on th e extreme right - hand side of the page, and the "title"

information starts on the extreme left - hand side of the page. The meaning of

this fragment of information is obscure.

5. The variant of the synopsis for Claudy Joseph states that this page is a

"Primar y Record" as to this "Multiple Owner." For the other multiple owners,

their variants state that this page is a "Secondary Record." For the address of

each of the three owners, the variants list only "El Portal, Florida 33138."

6 . There is no information co ncerning the purchaser of the cashier's check,

who will be referred to as the remitter. The above - described references to the

"owner" refer to the payee, not to the person who, by law, owns the proceeds of the cashier's check.

7 . In 2018, Mr. Aristide bank ed with Bank of America and lived in

El Portal, Florida, although in zip code 33150. On December 19, 2005,

Mr. Aristide completed an application form to open a banking account with a

Bank of America in "Sky Lake," and the bank associate's phone number is t he

area code for Miami.

8 . Mr. Aristide's date of birth is November 30, 1970, so he is old enough to

have engaged in a transaction in 2006 and young enough that he reasonably may be expected to recall the transaction and something about Mr. Joseph and Mr. Merceron.

9 . In response to interrogatories, Mr. Aristide stated that the other two

persons "very well could have been roommates at that time." Without addressing them in particular, Mr. Aristide added: "Claimant was a silent

partner in real estate transac tions together with other silent partners who

invested in a third party who purchased real estate. The money was part of

that investment transaction or transactions."

1 0 . Mr. Aristide acknowledged that he never received the cashier's check,

but "believes b ut is not sure that [the cashier's check] was part of a

structured purchase of real estate by a third party." Mr. Aristide explained that he "was an investor with other investors and it is not uncommon to

include each investor in cashiers checks."

11 . Mr. Aristide did not testify in this case and has failed to provide the

type of detail that would be expected, if he were a rightful owner of the

cashier's check, specifically, the circumstances surrounding the bank's

issuance of the check and the remitter's d elivery of the check. Petitioner thus

has failed to prove entitlement to the property or any part of it.

12 . Referred to as "Petitioner" in this recommended order, Global

Discoveries, Ltd., LLC, is a registered claimant's representative, within the

meaning of section 717.1400. Petitioner was retained by Mr. Aristide to

pursue his claim to the proceeds of the cashier's check. On July 3, 2018,

Petitioner duly filed a claim for the proceeds of the cashier's check, and

Respondent denied the claim by the NOI.

C ONCLUSIONS OF L AW

1 3 . DOAH has jurisdiction. §§ 120.569, 120.57(1), and 717.126.

1 4 . Petitioner has the burden of proving entitlement to unclaimed

property by a preponderance of the evidence, and proof of that Mr. Aristide has the same name as the name re ported to Respondent is insufficient to

establish ownership. § 717.126(1).

1 5 . In adjudicating claims for unclaimed property, Respondent applies all

statutes, rules, and decisional law, including common law. § 717.1244. For "unclaimed securities or dividen ds" whose multiple owners are listed in the

disjunctive -- i.e., with an "or " -- Respondent shall treat any owner as the owner

of the entirety of the property evidenced by the account. § 717.12406(5).

1 6 . An "apparent owner" is " the person whose name appears o n the

records of the holder as the person entitled to property held, issued, or owing

by the holder. " § 717.101(2). The bank's records contain the names of the

three payees, but not the remitter, and its identification of the payees as owners is unsupporte d by the evidence.

1 7 . The last known owner of the cashier's check was the remitter, who

paid the bank sufficient funds and any fee for the bank to issue the cashier's check. The bank would not have set aside the amount of the cashier's check, unless it ha d received this payment from the remitter.

18 . The re mitter typically would use the cashier's check to pay for goods

and services in a manner as to receive immediate credit for the face amount

of the check -- as though it were cash, but without the inconven ience of cash.

The record contains no indication as to what happened after the bank issued

the check , including whether the bank delivered the check to the remitter or

whether the remitter delivered the check to one of the payees.

19 . Once the bank transfe r s the cashier's check to the remitter, the

remitter becomes the owner of the check until it is delivered to the payee

named on the check. See, e.g., In re Lee , 179 B.R. 149, 161 (9th Cir. BAP

1995), aff'd sub nom. , Hall - Mark Elec . Corp. v. Sims , 108 F.3d 23 9 (9th Cir.

1997); In re Essex Constr., LLC , 575 B.R. 648, 654 (Bankr. D. Md. 2017). The

named payee has no right to the cashier's check until delivery, because, until

delivery, the remitter has the right to return the check for a refund. Bartel v.

Bank of Am. Corp. , 193 A.3d 767 (D.C. App. 2018).

20 . The factual scenario that would produce title in Mr. Aristide requires

the delivery of the cashier's check to him or one of the co - payees or the

performance of the bargained - for obligations by Mr. Aristide a nd his

co - payees and the breach of the remitter's obligation to deliver the cashier's

check. Mr. Aristide's memory of a transaction in which the remitter breached

his duty to pay would be sharper, given that the bitter transaction took place

only 15 years ago when Mr. Aristide was 35 years old. On the other hand,

Mr. Aristide's memory of a transaction that never closed and was not

partially performed might well be vaguer, but he and his co - payees would not

have been entitled to delivery of the cashier's che ck, so they would not be

owners of it today.

2 1 . The vagueness of Mr. Aristide's testimony demonstrates a lack of

knowledge of the details of the transaction for which the remitter obtained the cashier's check and thus undermines his claims to ownership o f the

proceeds of the check and to being the same Jean Aristide named as a

co - payee of the cashier's check. His open - ended responses to interrogatories

seem well - designed to fit a number of plausible scenarios, but their very

generality precludes a finding that Mr. Aristide and his co - payees ever

earned the proceeds to the cashier's check.

2 2 . Based on the foregoing, it is unnecessary to determine whether the

synopsis of the bank's records establishes equitable ownership of the entire

proceeds of the cashie r's check by any one of the co - payees, or whether such

an inquiry is categorically precluded by section 717.12406(5).

R ECOMMENDATION

I t is

R ECOMMENDED that Respondent shall issue a final order denying

Petitioner's claim.

D ONE A ND E NTERED this 6th day of October, 2020 , in Tallahassee, Leon

County, Florida.

R OBERT E. M EALE

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 Clerk of the

Division of Administrative Hearings

this 6th day of October , 2020 .

C OPIES F URNISHED :

Michael A. Alao, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 3239 9 - 0333

(eServe d)

Michael J. Farrar, Esquire

Michael J. Farrar, P.A.

18851 Northeast 29th Avenue , Suite 700

Aventura, Florida 33180

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahas see, Florida 32399 - 0390

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 agen cy that will issue the Final Order in this

case.