STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL EQUITIES GROUP, ) INC. and STEPHEN SCHWARTZ, AS ) ATTORNEY-IN-FACT FOR THEODORE ) ANDREWS, THE PERSONAL ) REPRESENTATIVE OF THE ESTATE ) OF SHIRLEY ANDREWS, )

)

Petitioners, )

)

vs. ) CASE NO. 93-2591

) DEPARTMENT OF BANKING AND ) FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen Schwartz, pro se

Representative of Claimant, Theodore Andrews

International Equities Group, Inc. 1532 Camden Avenue

Los Angeles, California 90025

For Respondent: Leslie A. Meek, Esquire

Assistant General Counsel Office of the Comptroller

401 North West 2nd Avenue, Suite N-708 Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the claim of International Equities Group, Inc. on behalf of Theodore Andrews, the personal representative of the estate of Shirley Andrews, for abandoned property in the custody of the Respondent, in the amount of $16,515.62, should be granted.

PRELIMINARY STATEMENT

This cause arose upon the filing of a claim by the above-referenced claimant, acting on behalf of the representative of the estate of Shirley Andrews for a sum of $16,515.62 in abandoned property, consisting of a bank deposit. The claim was reviewed and considered by the Respondent, Department of

Banking and Finance (Department) and ultimately denied by letter of February 12, 1992 due to the Department's position that the claimant had failed to present proof which demonstrated the claimant's entitlement to the property within the purview of the statutes and rules which the Department is charged with enforcing in matters such as this, cited hereinbelow. Apparently, the Department afforded the claimant an opportunity to submit proof of entitlement to the property; however, on November 4, 1992 after determining, in its view, that no proof of ownership was provided to connect the Petitioner's client to the property claimed, the Department entered final agency action in denial of the claim. The above-referenced Petitioner timely filed a request for a formal hearing, pursuant to Section 120.57, Florida Statutes; and ultimately, this hearing ensued and was conducted as a telephonic hearing.

Three exhibits were offered by the Respondent and admitted into evidence.

Respondent's exhibit 2 is also Petitioner's exhibit 1 and is admitted into evidence in Petitioner's case, as well. The Petitioner offered the testimony of Stephen Schwartz, the President of International Equities Group, Inc. and the representative of the claimant, Theodore Andrews, who is the personal representative of the estate of Shirley Andrews. The Respondent offered the testimony of Rex Pearce, Bureau Chief of the Abandoned Property Section of the Department.

The style of this case is amended, as referenced above, to reflect the real party-in-interest, the claimant, as Petitioner.

The hearing concluded and the parties were afforded the opportunity to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Department submitted a Proposed Recommended Order. The proposed findings of fact submitted therein are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. On or about December 19, 1991, International Equities Group, Inc. (International) filed a claim on behalf of Theodore Andrews, the personal representative for the estate of Shirley Andrews, for the amount of $16,515.62 in abandoned property. This sum was originally in the form of a bank deposit under account no. 1197-1988-00184, originally deposited in Barnett Bank of Palm Beach County, N.A. (the Bank), which was the original "holder" of the property and account in question. There is no dispute that the property constitutes abandoned property having been in possession of the Bank for the required period of seven years without any activity whatever. Consequently, after the Bank attempted to contact the named owner of the account, Arthur G. Cullen, at the last known address and was unable to make such contact because the address proved to be invalid, the account was treated by the Bank and the Department as abandoned.

   
   

2. The bank account in question was a savings account with Arthur G. Cullen listed on the signature card as the owner of the account. After determining that no activity had occurred with regard to the account for a period of at least seven years, the Bank attempted to contact Mr. Cullen at the address it had of record, which was 413 Rider Drive, Boynton Beach, Florida 33425. The Bank learned that that address was apparently invalid and consequently, was unable to make any contact with Mr. Cullen.

3. On July 15, 1991, Mr. Schwartz, representing the personal representative of the estate of Shirley Andrews, with power of attorney, contacted Ms. Pam Klettner of the Bank and explained that the social security number listed on the account in question, 118-34-5232, was the social security number of the late Ms. Shirley Andrews. Mr. Schwartz testified that he explained to Ms. Klettner that that listed social security number belonged to the late Ms. Shirley Andrews, as evidenced by social security records and her death certificate. He explained to Ms. Klettner that the Petitioner was the illegitimate father of at least one of Ms. Shirley Andrews' children. He then inquired of Ms. Klettner as to whom the account would be paid to, Ms. Andrews' estate, as her social security number was a match with the social security number entered on the account, or to Mr. Cullen (if he could be found, as the listed address had proved to be invalid according to the post office). Ms. Klettner responded, according to Mr. Schwartz, that she would seek a ruling for that situation from the Bank's legal department and would inform him as to the proper ownership of the account. Mr. Schwartz was later contacted by personnel of the Bank and informed that the owner of the social security number, in the Bank's view, would be the owner of the account and the funds deposited therein and that once the necessary probate documents were generated, Ms. Klettner would draft a letter to the State of Florida Unclaimed Property Department stating that the proper disbursement of the account would be to the Andrews' estate.

   
   

4. As a consequence of this communication, Mr. Schwartz contacted Ms. Pam McMahon in the State of New York to begin probate of the Shirley Andrews' estate, informing her of the decision of the Bank regarding required documentation for payment of the account to Mr. Schwartz and International, on behalf of the personal representative, Theodore Andrews.

   
   

5. Letters of Administration were apparently issued by the probate court in New York and the above-named claimant, Mr. Schwartz, submitted the proper forms and documents to the State of Florida Unclaimed Property Section, seeking possession of the funds in question. This was because, in the meantime, the Bank had elected to deem the property abandoned and pay the funds over to the custody of the Department. Mr. Schwartz contacted Ms. Klettner and requested that she draft the required letter to the Department to accompany the claim, as she had offered to do earlier. Ms. Klettner apparently informed Mr. Schwartz that she no longer worked in that department and was unable to keep her earlier commitment in this regard. Thereafter, a decree was entered by the Surrogate Court of the State of New York, County of Niagara, purportedly stating that the funds in question should be released to the estate of Shirley Andrews within ten days. According to Mr. Schwartz, the decree was issued to both the State of Florida and to the Bank. The purported court decree was not acted upon in the required ten days and ultimately, this claim was denied by the Department by its denial letter of November 4, 1992.

   
   

6. The death certificate of Ms. Shirley Andrews purportedly contains the above-referenced social security number, which is the same social security number as appears on the bank account which is listed under the name of Arthur

   1. Cullen. Apparently, personnel of the Department checked that social security number through the State of Florida drivers license indexing system and the number appeared in that system with the name of Arthur G. Cullen attached. However, a credit check using that social security number through a credit reporting agency record revealed that the number matched the name of Ms. Shirley Andrews and not Arthur G. Cullen. The death certificate of Shirley Andrews has not been submitted into evidence and, according to testimony, apparently is not a certified death certificate, although it is inferred from the totality of the testimony that the death certificate was presented to the Department at some

      point in the claim process. The purported decree of the probate court for the County of Niagara, State of New York, Surrogates Court, has not been presented in evidence either. According to the evidence of record, Arthur G. Cullen, the purported owner of the account, under the Department's theory that the listed name on the account is tantamount to ownership, has never been located. Even if his whereabouts were known, the evidence shows that both the address on the account and the social security number on the account are not apparently those of Arthur G. Cullen. Other than the testimony of Mr. Schwartz, however, no definitive proof in the form of a certified copy of the death certificate bearing the social security number of Shirley Andrews, so that it could be matched to that appearing on the original bank account record, nor a certified copy of the New York probate court's judgement or decree, which might indicate findings of fact or conclusions of law establishing a basis for payment of the funds over to the estate of Shirley Andrews, has been placed in evidence.

      Consequently, it is determined that adequate proof by a preponderance of the evidence has not been established so as to justify award of the funds in question to the Petitioner.

      
      

      CONCLUSIONS OF LAW

      
      

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

8. The Petitioner has the burden of proof of establishing the claimant's entitlement to the property in question by a preponderance of the evidence according to the provisions of Section 717.126, Florida Statutes.

   
   

9. Section 3D-20.0021(3), Florida Administrative Code, provides as follows:

   
   

   (3)(a) Claims Filed By Other Than Apparent Owners. All claims for unclaimed property filed by a legal representative, beneficiary, or private investigator shall be submitted on form DBF-AP-107, Claim Filed By Other Than Apparent Owner, hereby incorporated by reference, effective 3-20-91.

   (b) Form DBF-AP-107 shall be manually signed by the person(s) filing the claim and notarized. Form DBF-AP-107 shall be accompanied by the following:

   1. Original documentation establishing such person's right to act on behalf of the owner.

   2. Appropriate identification of the person(s) being represented or the beneficiary except as provided by an appropriate probate court order.

   3. A narrative explanation sufficiently explaining the facts which resulted in the property becoming abandoned, if known, and a narrative sufficiently explaining the relationship of the claimant to the apparent original owner except as provided by a probate court order.

   4. Proof demonstrating the person(s) estate represented is entitled to the abandoned property.

   
   

10. Under this rule, as well as Rule 3D-20.0022, Florida Administrative Code, the claimant or the representative of an estate must present an explanation or proof which sufficiently explains the facts which result in the property being abandoned and a narrative explanation sufficiently explaining the relationship of the claimant to the apparent original owner, except as provided by a probate court order. If the claimant represents the estate of a deceased apparent owner under Rule 3D-20.0022, Florida Administrative Code, a copy of the probate order showing entitlement to the property in question in the subject estate should be filed as part of the proof demonstrating that the person's estate being represented is entitled to the abandoned property.

    
    

11. The proof in this case does not meet the standard of the above-cited statute and cited and quoted rules. Perhaps, if the Petitioner herein were able to provide in evidence the certified copy of the death certificate of Shirley Andrews showing the relevant social security number, together with the order of the probate court demonstrating the right of the estate to collect the subject funds, then such proof would be sufficient, in the absence of the location of Arthur G. Cullen. Unfortunately, however, the Petitioner has failed to present such proof in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the claim of

International Equities Group, Inc. on behalf of Theodore Andrews, as personal

representative of the estate of Shirley Andrews, for the abandoned property in the amount of $16,515.62, with regard to account number 1197-1988-00184, without prejudice to perfection of such claim by submission of appropriate proof and explanation of entitlement to the Department at a later time, subject to any time limits and other requirements contained in Chapter 717, Florida Statutes, and Chapter 3D, Florida Administrative Code.

DONE AND ENTERED this 7th day of December, 1993, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2591

Respondent's Proposed Findings of Fact

1. Accepted.

2. Accepted in the sense that the non-certified death certificate may have been presented to the Department by way of explanation of entitlement with regard to the claim in question but such death certificate was not presented in evidence to the Hearing Officer.

3. Accepted in the sense that it demonstrates the basis for the Department's initial denial of the claim.

4. Rejected, as it does not state the entirety of the proof presented to the Hearing Officer in this Section 120.57(1), Florida Statutes, proceeding.

5. Accepted to the extent that it constitutes the Department's basis for denial of the claim.

6. Accepted.

COPIES FURNISHED:

Mr. Stephen Schwartz

International Equities Group, Inc. 1532 Camden Avenue

Los Angeles, California 90025

Leslie A. Meek, Esquire Assistant General Counsel Office of the Comptroller

401 North West 2nd Avenue, Suite N-708 Miami, Florida 33128

Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350

William G. Reeves, Esquire General Counsel

Department of Banking and Finance

The Capitol, Room 1302 Tallahassee, Florida 32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-002591

Orders for Case No: 93-002591