Florida Senate - 2021                             CS for SB 1434
       
       
        
       By the Committee on Banking and Insurance; and Senator Wright
       
       
       
       
       
       597-03593-21                                          20211434c1
    1                        A bill to be entitled                      
    2         An act relating to disposition of unclaimed property;
    3         amending s. 717.119, F.S.; requiring the Department of
    4         Financial Services to provide copies of wills and
    5         trusts included in safe-deposit box contents under
    6         certain circumstances; amending s. 717.124, F.S.;
    7         requiring specified agreements for certain claims;
    8         removing provisions requiring the department to deny
    9         certain unclaimed property claims; increasing the
   10         threshold required to use a different method of
   11         identity verification for electronic claims;
   12         conforming provisions to changes made by the act;
   13         amending ss. 717.12404, 717.1315, and 717.1322, F.S.;
   14         conforming provisions to changes made by the act;
   15         amending s. 717.135, F.S.; requiring the department to
   16         adopt forms for an Unclaimed Property Recovery
   17         Agreement and an Unclaimed Property Purchase
   18         Agreement; providing requirements for such agreements;
   19         providing that the agreements are the exclusive means
   20         for a claimant’s representative to file a claim or to
   21         recover fees and costs; prohibiting a claimant’s
   22         representative from using or distributing any other
   23         form of agreement; providing administrative and civil
   24         penalties; authorizing the department to pay
   25         additional accounts under certain circumstances;
   26         providing applicability; repealing s. 717.1351, F.S.,
   27         relating to unclaimed property claims; providing an
   28         effective date.
   29          
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Paragraph (e) is added to subsection (5) of
   33  section 717.119, Florida Statutes, to read:
   34         717.119 Payment or delivery of unclaimed property.—
   35         (5) All intangible and tangible property held in a safe
   36  deposit box or any other safekeeping repository reported under
   37  s. 717.117 shall not be delivered to the department until 120
   38  days after the report due date. The delivery of the property,
   39  through the United States mail or any other carrier, shall be
   40  insured by the holder at an amount equal to the estimated value
   41  of the property. Each package shall be clearly marked on the
   42  outside “Deliver Unopened.” A holder’s safe-deposit box contents
   43  shall be delivered to the department in a single shipment. In
   44  lieu of a single shipment, holders may provide the department
   45  with a single detailed shipping schedule that includes package
   46  tracking information for all packages being sent pursuant to
   47  this section.
   48         (e)If a will or trust instrument is included among the
   49  contents of a safe-deposit box or other safekeeping repository
   50  delivered to the department, the department must provide a copy
   51  of the will, trust, and any codicils or amendments to such will
   52  or trust instrument upon request to anyone who provides the
   53  department with evidence of the death of the testator or
   54  settlor.
   55         Section 2. Subsection (1), paragraphs (b) and (c) of
   56  subsection (4), and subsections (7) and (10) of section 717.124,
   57  Florida Statutes, are amended to read:
   58         717.124 Unclaimed property claims.—
   59         (1) Any person, excluding another state, claiming an
   60  interest in any property paid or delivered to the department
   61  under this chapter may file with the department a claim on a
   62  form prescribed by the department and verified by the claimant
   63  or the claimant’s representative. The claimant’s representative
   64  must be an attorney licensed to practice law in this state, a
   65  licensed Florida-certified public accountant, or a private
   66  investigator licensed under chapter 493. The claimant’s
   67  representative must be registered with the department under this
   68  chapter. The claimant, or the claimant’s representative, shall
   69  provide the department with a legible copy of a valid driver
   70  license of the claimant at the time the original claim form is
   71  filed. If the claimant has not been issued a valid driver
   72  license at the time the original claim form is filed, the
   73  department shall be provided with a legible copy of a
   74  photographic identification of the claimant issued by the United
   75  States, a state or territory of the United States, a foreign
   76  nation, or a political subdivision or agency thereof or other
   77  evidence deemed acceptable by the department by rule. In lieu of
   78  photographic identification, a notarized sworn statement by the
   79  claimant may be provided which affirms the claimant’s identity
   80  and states the claimant’s full name and address. The claimant
   81  must produce to the notary photographic identification of the
   82  claimant issued by the United States, a state or territory of
   83  the United States, a foreign nation, or a political subdivision
   84  or agency thereof or other evidence deemed acceptable by the
   85  department by rule. The notary shall indicate the notary’s full
   86  address on the notarized sworn statement. Any claim filed
   87  without the required identification or the sworn statement with
   88  the original claim form and the original Unclaimed Property
   89  Recovery Agreement or Unclaimed Property Purchase Agreement
   90  power of attorney or purchase agreement, if applicable, is void.
   91         (a) Within 90 days after receipt of a claim, the department
   92  may return any claim that provides for the receipt of fees and
   93  costs greater than that permitted under this chapter or that
   94  contains any apparent errors or omissions. The department may
   95  also request that the claimant or the claimant’s representative
   96  provide additional information. The department shall retain a
   97  copy or electronic image of the claim.
   98         (b) A claimant or the claimant’s representative shall be
   99  deemed to have withdrawn a claim is considered to have been
  100  withdrawn by a claimant or the claimant’s representative if no
  101  response to the department does not receive a response to its
  102  department’s request for additional information is received by
  103  the department within 60 days after the notification of any
  104  apparent errors or omissions.
  105         (c) Within 90 days after receipt of the claim, or the
  106  response of the claimant or the claimant’s representative to the
  107  department’s request for additional information, whichever is
  108  later, the department shall determine each claim. Such
  109  determination shall contain a notice of rights provided by ss.
  110  120.569 and 120.57. The 90-day period shall be extended by 60
  111  days if the department has good cause to need additional time or
  112  if the unclaimed property:
  113         1. Is owned by a person who has been a debtor in
  114  bankruptcy;
  115         2. Was reported with an address outside of the United
  116  States;
  117         3. Is being claimed by a person outside of the United
  118  States; or
  119         4. Contains documents filed in support of the claim that
  120  are not in the English language and have not been accompanied by
  121  an English language translation.
  122         (d)The department shall deny any claim under which the
  123  claimant’s representative has refused to authorize the
  124  department to reduce the fees and costs to the maximum permitted
  125  under this chapter.
  126         (4)
  127         (b) If an owner authorizes an attorney licensed to practice
  128  law in this state, a Florida-certified public accountant, or a
  129  private investigator licensed under chapter 493, and registered
  130  with the department under this chapter, to claim the unclaimed
  131  property on the owner’s behalf, the department is authorized to
  132  make distribution of the property or money in accordance with
  133  the Unclaimed Property Recovery Agreement or Unclaimed Property
  134  Purchase Agreement under s. 717.135 such power of attorney. The
  135  original Unclaimed Property Recovery Agreement or Unclaimed
  136  Property Purchase Agreement power of attorney must be executed
  137  by the claimant or seller owner and must be filed with the
  138  department.
  139         (c)1. Payments of approved claims for unclaimed cash
  140  accounts must shall be made to the owner after deducting any
  141  fees and costs authorized by the claimant under an Unclaimed
  142  Property Recovery Agreement pursuant to a written power of
  143  attorney. The contents of a safe-deposit box must shall be
  144  delivered directly to the claimant notwithstanding any power of
  145  attorney or agreement to the contrary.
  146         2. Payments of fees and costs authorized under an Unclaimed
  147  Property Recovery Agreement pursuant to a written power of
  148  attorney for approved claims must shall be made or issued to the
  149  law firm of the designated attorney licensed to practice law in
  150  this state, the public accountancy firm of the licensed Florida
  151  certified public accountant, or the designated employing private
  152  investigative agency licensed by this state. Such payments shall
  153  be made by electronic funds transfer and may be made on such
  154  periodic schedule as the department may define by rule, provided
  155  the payment intervals do not exceed 31 days. Payment made to an
  156  attorney licensed in this state, a Florida-certified public
  157  accountant, or a private investigator licensed under chapter
  158  493, operating individually or as a sole practitioner, must
  159  shall be to the attorney, certified public accountant, or
  160  private investigator.
  161         (7) The department may allow an apparent owner to
  162  electronically submit a claim for unclaimed property to the
  163  department. If a claim is submitted electronically for $2,000
  164  $1,000 or less, the department may use a method of identity
  165  verification other than a copy of a valid driver license, other
  166  government-issued photographic identification, or a sworn
  167  notarized statement. The department may adopt rules to implement
  168  this subsection.
  169         (10) Notwithstanding any other provision of this chapter,
  170  the department may develop a process by which a registered
  171  claimant’s representative or a buyer of unclaimed property may
  172  electronically submit to the department an electronic image of a
  173  completed claim and claims-related documents under pursuant to
  174  this chapter, including an Unclaimed Property Recovery Agreement
  175  or Unclaimed Property Purchase Agreement a limited power of
  176  attorney or purchase agreement that has been manually signed and
  177  dated by a claimant or seller under pursuant to s. 717.135 or s.
  178  717.1351, after the claimant’s representative or the buyer of
  179  unclaimed property receives the original documents provided by
  180  the claimant or the seller for any claim. Each claim filed by a
  181  registered claimant’s representative or a buyer of unclaimed
  182  property must include a statement by the claimant’s
  183  representative or the buyer of unclaimed property attesting that
  184  all documents are true copies of the original documents and that
  185  all original documents are physically in the possession of the
  186  claimant’s representative or the buyer of unclaimed property.
  187  All original documents must be kept in the original form, by
  188  claim number, under the secure control of the claimant’s
  189  representative or the buyer of unclaimed property and must be
  190  available for inspection by the department in accordance with s.
  191  717.1315. The department may adopt rules to implement this
  192  subsection.
  193         Section 3. Subsection (2) of section 717.12404, Florida
  194  Statutes, is amended to read:
  195         717.12404 Claims on behalf of a business entity or trust.—
  196         (2) Claims on behalf of a dissolved corporation, a business
  197  entity other than an active corporation, or a trust must include
  198  a legible copy of a valid driver license of the person acting on
  199  behalf of the dissolved corporation, business entity other than
  200  an active corporation, or trust. If the person has not been
  201  issued a valid driver license, the department shall be provided
  202  with a legible copy of a photographic identification of the
  203  person issued by the United States, a foreign nation, or a
  204  political subdivision or agency thereof. In lieu of photographic
  205  identification, a notarized sworn statement by the person may be
  206  provided which affirms the person’s identity and states the
  207  person’s full name and address. The person must produce his or
  208  her photographic identification issued by the United States, a
  209  state or territory of the United States, a foreign nation, or a
  210  political subdivision or agency thereof or other evidence deemed
  211  acceptable by the department by rule. The notary shall indicate
  212  the notary’s full address on the notarized sworn statement. Any
  213  claim filed without the required identification or the sworn
  214  statement with the original claim form and the original
  215  Unclaimed Property Recovery Agreement or Unclaimed Property
  216  Purchase Agreement power of attorney, if applicable, is void.
  217         Section 4. Subsection (1) of section 717.1315, Florida
  218  Statutes, is amended to read:
  219         717.1315 Retention of records by claimant’s representatives
  220  and buyers of unclaimed property.—
  221         (1) Every claimant’s representative and buyer of unclaimed
  222  property shall keep and use in his or her business such books,
  223  accounts, and records of the business conducted under this
  224  chapter to enable the department to determine whether such
  225  person is complying with this chapter and the rules adopted by
  226  the department under this chapter. Every claimant’s
  227  representative and buyer of unclaimed property shall preserve
  228  such books, accounts, and records, including every Unclaimed
  229  Property Recovery Agreement or Unclaimed Property Purchase
  230  Agreement power of attorney or agreement between the owner and
  231  such claimant’s representative or buyer, for at least 3 years
  232  after the date of the initial power of attorney or agreement.
  233         Section 5. Paragraph (j) of subsection (1) of section
  234  717.1322, Florida Statutes, is amended to read:
  235         717.1322 Administrative and civil enforcement.—
  236         (1) The following acts are violations of this chapter and
  237  constitute grounds for an administrative enforcement action by
  238  the department in accordance with the requirements of chapter
  239  120 and for civil enforcement by the department in a court of
  240  competent jurisdiction:
  241         (j) Requesting or receiving compensation for notifying a
  242  person of his or her unclaimed property or assisting another
  243  person in filing a claim for unclaimed property, unless the
  244  person is an attorney licensed to practice law in this state, a
  245  Florida-certified public accountant, or a private investigator
  246  licensed under chapter 493, or entering into, or making a
  247  solicitation to enter into, an agreement a power of attorney to
  248  file a claim for unclaimed property owned by another, or a
  249  contract or agreement to purchase unclaimed property, unless
  250  such person is registered with the department under pursuant to
  251  this chapter and an attorney licensed to practice law in this
  252  state in the regular practice of her or his profession, a
  253  Florida-certified public accountant who is acting within the
  254  scope of the practice of public accounting as defined in chapter
  255  473, or a private investigator licensed under chapter 493. This
  256  paragraph subsection does not apply to a person who has been
  257  granted a durable power of attorney to convey and receive all of
  258  the real and personal property of the owner, is the court
  259  appointed guardian of the owner, has been employed as an
  260  attorney or qualified representative to contest the department’s
  261  denial of a claim, or has been employed as an attorney to
  262  probate the estate of the owner or an heir or legatee of the
  263  owner.
  264         Section 6. Section 717.135, Florida Statutes, is amended to
  265  read:
  266         (Substantial rewording of section. See
  267         s. 717.135, F.S., for present text.)
  268         717.135 Recovery agreements and purchase agreements for
  269  claims filed by a claimant’s representative; fees and costs.—
  270         (1) In order to protect the interests of owners of
  271  unclaimed property, the department shall adopt by rule a form
  272  entitled “Unclaimed Property Recovery Agreement” and a form
  273  entitled “Unclaimed Property Purchase Agreement.”
  274         (2) The Unclaimed Property Recovery Agreement and the
  275  Unclaimed Property Purchase Agreement must include and disclose
  276  all of the following:
  277         (a) The total dollar amount of unclaimed property accounts
  278  claimed or sold.
  279         (b) The total percentage of all authorized fees and costs
  280  to be paid to the claimant’s representative or the percentage of
  281  the value of the property to be paid as net gain to the
  282  purchasing claimant’s representative.
  283         (c) The total dollar amount to be deducted and received
  284  from the claimant as fees and costs by the claimant’s
  285  representative or the total net dollar amount to be received by
  286  the purchasing claimant’s representative.
  287         (d) The net dollar amount to be received by the claimant or
  288  the seller.
  289         (e) For each account claimed, the unclaimed property
  290  account number.
  291         (f) For the Unclaimed Property Purchase Agreement, a
  292  statement that the amount of the purchase price will be remitted
  293  to the seller by the purchaser within 30 days after the
  294  execution of the agreement by the seller.
  295         (g) The name, address, e-mail address, phone number, and
  296  license number of the claimant’s representative.
  297         (h)1. The manual signature of the claimant or seller and
  298  the date signed, affixed on the agreement by the claimant or
  299  seller.
  300         2. Notwithstanding any other provision of this chapter to
  301  the contrary, the department may allow an apparent owner, who is
  302  also the claimant, to sign the agreement electronically for
  303  claims of $2,000 or less. All electronic signatures on the
  304  Unclaimed Property Recovery Agreement and the Unclaimed Property
  305  Purchase Agreement must be affixed on the agreement by the
  306  claimant or seller using the specific, exclusive eSignature
  307  product and protocol authorized by the department.
  308         (i) The social security number or taxpayer identification
  309  number of the claimant or seller, if a number has been issued to
  310  the claimant or seller.
  311         (j) The total fees and costs, or the total discount in the
  312  case of a purchase agreement, which may not exceed 30 percent of
  313  the claimed amount. If the total fees and costs exceed 30
  314  percent, the fee shall be reduced to 30 percent and the net
  315  balance shall be remitted directly by the department to the
  316  claimant.
  317         (3) For an Unclaimed Property Purchase Agreement form,
  318  proof that the purchaser has made payment must be filed with the
  319  department along with the claim. If proof of payment is not
  320  provided, the claim is void.
  321         (4) A claimant’s representative must use the Unclaimed
  322  Property Recovery Agreement or the Unclaimed Property Purchase
  323  Agreement as the exclusive means of engaging with a claimant or
  324  seller to file a claim with the department.
  325         (5) Fees and costs may be owed or paid to, or received by,
  326  a claimant’s representative only after a filed claim has been
  327  approved and if the claimant’s representative used an agreement
  328  authorized by this section.
  329         (6) A claimant’s representative may not use or distribute
  330  any other agreement, form, or other media with respect to the
  331  claimant or seller which relates, directly or indirectly, to
  332  unclaimed property accounts held by the department or the Chief
  333  Financial Officer other than the agreements authorized by this
  334  section. Any engagement, authorization, recovery, or fee
  335  agreement that is not authorized by this section is void. A
  336  claimant’s representative is subject to administrative and civil
  337  enforcement under s. 717.1322 if he or she uses an agreement
  338  that is not authorized by this section.
  339         (7) The Unclaimed Property Recovery Agreement and the
  340  Unclaimed Property Purchase Agreement may not contain language
  341  that makes the agreement irrevocable or that creates an
  342  assignment of any portion of unclaimed property held by the
  343  department.
  344         (8) When a claim is approved, the department may pay any
  345  additional account that is owned by the claimant but has not
  346  been claimed at the time of approval, provided that a subsequent
  347  claim has not been filed or is not pending for the claimant at
  348  the time of approval.
  349         (9) This section does not supersede s. 717.1241.
  350         Section 7. Section 717.1351, Florida Statutes, is repealed.
  351         Section 8. This act shall take effect upon becoming a law.