The Real News

RELAW, APC
June, 2017
Unclaimed Property

According to the California State Controller website, the State of California is currently in possession of more than $8 billion in Unclaimed Property belonging to approximately 32.5 million individuals and organizations.  California has an Unclaimed Property Law where it takes possession of unclaimed property.  This law requires unclaimed property "holders" (such as corporations, business associations, financial institutions, and insurance companies to name a few) to annually report and deliver property to the California Controller's Office.  The "holders" need to have had no customer contact for three years before the property is handed over to the Controller's Office.  There are many reasons unclaimed property exists, including people forgetting about old accounts, customers move but don't provide a forwarding address or new contact information, and in some cases the owners die and the heirs do not know about the accounts.  Handing the property over to the State of California is known as escheatment.  The property being handed over is known as escheated property.

Escheatment is common in real estate transactions as escrow holders and title companies hold money for consumers, some of which is never claimed by the rightful owner.  Recently, one taxpayer attempted to claim an escheated property under the California Unclaimed Property Law.  They claimed to be the assignee of Financial Title Company that was a suspended corporation, which lacked the legal capacity to claim the property.  The taxpayer claimed they were not subject to a lack of capacity based on the company's suspension because they obtained a judicial assignment of rights to the funds, not a voluntary assignment.  According to the state statute, however, "an assignee of a suspended corporation is subject to the same incapacities with respect to commencement of actions during the period in which the corporate powers and rights are suspended."  In essence, per the statute, the taxpayer was not entitled to claim the escheated property being held in the name of the suspend company.  The State Controller's Office denied the claim and no escheated property was handed over to the taxpayer.

If anyone is curious if they have any unclaimed property, check out the State Controller website for your state and see what rules and statutes they have in place.  Maybe a portion of the $8 billion California is holding belongs to you!

Case of the Month

Richard L. Thompson, Plaintiff, Cross-defendant and Respondent
v.
Briana C. Ioane, Defendant, Cross-complainant and Appellant (H042104)
Michael S. Ioane, Sr., et al., Defendants and Appellants (H043112)
Michael S. Ioane, Sr., et al., Defendants and Appellants (H043350)
One opinion was written in regards to three separate appeals arising out of an action to quiet title a real property located on Blue Gum Avenue in Capitola, CA.  A quiet title action is brought to establish, or "quiet", title or an interest in real estate between adverse parties.  The Blue Gum property was sold at a foreclosure sale in August 1998.  Bank United filed an unlawful detainer action against Michael S. Ioane, Sr. shortly after the foreclosure sale.  In June 1999, the court entered judgment ordering that Bank United take possession of the property and a writ of possession be issued.

Shelly Ioane filed for bankruptcy.  She and Michael Sr. filed an adversary proceeding against Bank United (and others) in the bankruptcy case.  In the complaint, the Ioanes contend the foreclosure sale was invalid and the writ of possession was invalid.  They asked for possession of the property (among other requests).  On July 10, 2000, the bankruptcy court granted summary judgment in favor of Bank United.  About the same time, the Ioanes also filed in federal court a separate civil suit against Bank United (and others) asking the same.  In August 25, 2000, the federal court dismissed the action with prejudice.

The property was deeded to Thompson and his wife in 2001.  The Ioanes filed a quiet title action against the Thompsons (among others) in the Santa Cruz Superior Court.  The superior court entered judgment in favor of the Thompsons, including their costs, but did not purport to quiet title in the Thompsons' favor.  The appeals court affirmed that judgment on December 19, 2003. 

Between 2003 and 2015, individuals in the Ioane family filed many documents and raised many court complaints against the Thompsons (among others).  In January 2016, pursuant to a motion made by Thompson, the trial court entered a vexatious litigant prefiling order against Michael Sr and Shelly Ioane.  They appealed that order on March 14, 2016.  A vexatious litigant prefiling order prohibits them from filing new litigation while representing themselves in the California courts without first obtaining leave of (permission by the) court.  The vexatious litigant statue was enacted to "curb misuse of the court system" by "persistent and obsessive litigants."

There are many more details to this case that would take many more pages to list.  However, both sides made a few mistakes over the 14+ years of court actions.  The appellate court reversed the trial court's decision.  They vacated the order granting summary judgment to the Thompsons because the appellate court decided there exists a triable issue of material fact as to his chain of title.  Briana Ioane had brought some evidence to the original trial which the trial court disallowed.  However, the appellate court decided that evidence should have been allowed.  Thus, the decision to overturn the granting of summary judgment.  The appellate court also vacated the order declaring Michael Sr and Shelly vexatious litigants.  They were declared a vexatious litigant via a federal court first, which the trial court extended to them.  For this reason, and also because the original decision was based on summary judgment and not a litigation decision, the order was reversed.  Finally, the parties are to bear their own costs on appeal.  After all those years and court filings, decisions, etc., it appears the parties get to start all over again.

Does Zestimate Work for You?

An attorney and homeowner in Illinois is suing Zillow, claiming the company's Zestimate tool is impacting her ability to seller her home because it undervalues her home.  She is attempting to sell her home for $626,000.  Homes directly across the street sell for about $100,000 more than her asking price, but they do have more square footage.  At the time of the filing of the complaint, the most recent Zestimate for her home is $562,000.

Zillow states that the Zestimate tool is not an appraisal.  It is "Zillow's estimated market value" and is created using its proprietary formula.  Zillow claims that they have a 5 percent median error rate, which means that 50% of the time, the Zestimate is within 5% of the actual selling price.  This sounds great, unless it's your home that is undervalued by 20% or more.  Having a Zestimate that greatly undervalues your house can make it difficult to sell your house at market value.

Surprisingly enough, the lady suing Zillow is not asking for any monetary damages.  She's simply asking for an injunction to stop Zillow from posting a Zestimate on her house.  Homeowners, realty agents and appraisers have been critical about the Zestimate tool for years.  It's a proprietary algorithm and no one outside of Zillow appears to know exactly how it works.

Zillow has also conceded that improvements can be made.  In fact, they have launched the Zillow Prize.  This is an open competition for people to create a better Zestimate tool.  Though not technically an admission that would be legally usable in court, the contest itself supports this plaintiff's position that the Zestimate tool could use some improvement.


Upcoming Speaking Engagements

For June 2017, Jennifer has the following speaking engagements:

North San Diego Escrow Association - Tuesday, June 13, 2017

San Diego Escrow Association - Tuesday, June 20, 2017

For details about one or more of these events feel free to contact our office.

RELAW, APC will be sponsoring the BIA-LAV Wine Tour on June 12, 2017.  For tickets please visit:

https://biasc-la-ventura.silkstart.com/events/bia-lav-wine-tour-1


 

 

Jennifer Felten, Esq., Principal & Editor
(805) 265-1031
jennifer@relawapc.com 
Feel free to call  or email for a free consultation.

 
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