Chapter 272 Oregon Laws 2003

AN ACT

SB 216

Relating to unclaimed property; amending ORS 98.302, 98.308, 98.326, 98.382, 98.402, 98.412 and 98.416.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 98.302 is amended to read:

98.302. As used in ORS 98.302 to 98.436 and 98.992, unless the context otherwise requires:

(1) “Administrator” means the Director of the Division of State Lands.

(2) “Apparent owner” means the person whose name appears on the records of the holder as the person entitled to property held, issued or owing by the holder.

[(3) “Banking institution” means a financial institution or a trust company, as those terms are defined in ORS 706.008, an investment company, a safe deposit company or a private banker.]

[(4)] (3) “Business association” means a nonpublic corporation, joint stock company, business trust, partnership, investment company or an association for business purposes of two or more individuals, whether or not for profit, including a [banking institution,] financial institution, insurance company or utility.

[(5)] (4) “Domicile” means the state of incorporation of a corporation and the state of the principal place of business of an unincorporated person.

[(6)] (5) “Financial institution” means a financial institution or a trust company, as those terms are defined in ORS 706.008, a safe deposit company, a private banker, a savings and loan association, a building and loan association[, credit union] or an investment company.

[(7)] (6) “Holder” means a person, wherever organized or domiciled, who is in possession of property belonging to another, a trustee or indebted to another on an obligation.

[(8)] (7) “Insurance company” means an association, corporation, fraternal or mutual benefit organization, whether or not for profit, which is engaged in providing insurance coverage, including accident, burial, casualty, workers’ compensation, credit life, contract performance, dental, fidelity, fire, health, hospitalization, illness, life (including endowments and annuities), malpractice, marine, mortgage, surety and wage protection insurance.

[(9)] (8) “Intangible property” includes:

(a) Credit balances, customer overpayments, security deposits, refunds, credit memos, unpaid wages, unused airline tickets and unidentified remittances;

(b) Stocks and other intangible ownership interests in business associations;

(d) Amounts due and payable under the terms of insurance policies;

(e) Amounts distributed from a trust or custodial fund established under a plan to provide health, welfare, pension, vacation, severance, retirement, death, stock purchase, profit sharing, employee savings, supplemental unemployment insurance or similar benefits; and

(f) Moneys, checks, drafts, deposits, interest, dividends and income.

[(10)] (9) “Last-known address” means a description of the location of the apparent owner sufficient for the purpose of delivery of mail.

[(11)] (10) “Lawful deduction” means a deduction related to the purpose of an account or deposit, for example, to satisfy unpaid utility bills.

[(12)] (11) “Owner” means a depositor in case of a deposit, a beneficiary in case of a trust other than a deposit in trust, a creditor, claimant, or payee in case of other intangible property, or a person, or the person’s legal representative, having a legal or equitable interest in property.

[(13)] (12) “Person” means an individual, business association, state or other government or political subdivision or agency, public corporation, public authority, estate, trust, two or more persons having a joint or common interest, or any other legal or commercial entity.

[(14)] (13) “Service charge” means fees or charges that are limited to a specific situation and that meet basic contractual and notice requirements.

[(15)] (14) “State” means any state, district, commonwealth, territory, insular possession or any other area subject to the legislative authority of the United States.

[(16)] (15) “Utility” means a person who owns or operates for public use, any plant, equipment, property, franchise or license for the transmission of communications or the production, storage, transmission, sale, delivery or furnishing of electricity, water, steam or gas.

SECTION 2. ORS 98.308 is amended to read:

98.308. (1) Any demand, savings or matured time deposit with a [banking] financial institution, including a deposit that is automatically renewable, and any funds paid toward the purchase of a share, mutual investment certificate or any other interest in a [banking] financial institution is presumed abandoned unless the owner, within five years has done one or more of the following:

(a) In the case of a deposit, increased or decreased its amount or presented the passbook or other similar evidence of the deposit for the crediting of interest.

(b) Communicated in writing with the [banking] financial institution concerning the property.

(c) Otherwise indicated an interest in the property as evidenced by a memorandum or other record on file prepared by an employee of the [banking] financial institution.

(d) Owned other property to which paragraph (a), (b) or (c) of this subsection applies, and the [banking] financial institution has communicated in writing with the owner with regard to the property that would otherwise be presumed abandoned under this subsection at the address to which communications regarding the other property regularly are sent.

(e) Had another relationship with the [banking] financial institution concerning which the owner has:

(A) Communicated in writing with the [banking] financial institution; or

(B) Otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the [banking] financial institution, and the [banking] financial institution has communicated in writing with the owner with regard to the property that would otherwise be abandoned under this subsection at the address to which communications regarding the other relationship regularly are sent.

(2) For purposes of subsection (1) of this section “property” includes interest and dividends.

(3) With respect to property described in subsection (1) of this section, a holder may not impose any charge or cease payment of interest due to dormancy or inactivity unless:

(a) There is a written contractual agreement between the holder and the owner of the account clearly and prominently setting forth the conditions under which a service charge may be imposed or the payment of interest terminated;

(b) The establishment of a service charge, the change of an existing service charge or the change of a policy pertaining to the payment of interest is uniformly applied to all dormant or inactive accounts;

(c) The holder shall give written notice to the owner at the owner’s last-known address whenever an account becomes dormant or inactive; and

(d) Three months’ written notice is given by certified mail to the last-known address of the owner of a dormant or inactive account before the holder may apply a service charge to that account or stop paying interest on that account.

(4) A signature card is not a written contractual agreement for the purposes of subsection (3)(a) of this section, however, the signature card and the written contractual agreement may be contained in one instrument.

(5) Property described in subsection (1) of this section that is automatically renewable is matured for purposes of subsection (1) of this section upon the expiration of its initial time period. However, if the owner consents to a renewal at or about the time of renewal by communicating in writing with the [banking] financial institution or otherwise indicating consent as evidenced by a memorandum or other record on file prepared by an employee of the institution, the property is matured upon the expiration of the last time period for which consent was given. [If at the time provided for delivery in ORS 98.362, a penalty or forfeiture in the payment of interest would result from the delivery of the property, the time for delivery is extended until the time when no penalty or forfeiture would result.] If the delivery of funds or property required by ORS 98.352 would result in a penalty or forfeiture in the payment of interest from the delivery of the funds or property, the delivery may be delayed until the time when no penalty or forfeiture would result.

(6) Except for those instruments subject to ORS 98.309, any sum payable on a check, draft or similar instrument, on which a [banking] financial institution is directly liable, including a cashier’s check and a certified check, which has been outstanding for more than five years after it was payable or after its issuance if payable on demand, is presumed abandoned, unless the owner, within five years, has communicated in writing with the [banking] financial institution concerning it or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee thereof.

(7) A holder may not deduct from the amount of any instrument subject to subsections (6) and (7) of this section any charge imposed by reason of the failure to present the instrument for payment unless there is a valid and enforceable written contract between the holder and the owner of the instrument pursuant to which the holder may impose a charge, and the holder regularly imposes such charges and does not regularly reverse or otherwise cancel them.

SECTION 3. ORS 98.326 is amended to read:

98.326. All intangible personal property distributable in the course of a dissolution of a business association[, banking institution] or financial institution that is unclaimed by the owner for more than [two years] one year after the date for final distribution is presumed abandoned.

SECTION 4. ORS 98.382 is amended to read:

98.382. [(1)] (1)(a) All unclaimed property other than money and securities delivered to the Division of State Lands under ORS 98.362 shall be sold by the division to the highest bidder at public sale [in whatever city in the state affords in the division’s judgment the most favorable market] by the method and at the location that the division determines are the most favorable for receiving the highest price for the property involved. The division may decline the highest bid and reoffer the property for sale if the division considers the price bid insufficient. The division need not offer any property for sale if, in the division’s opinion, the probable cost of sale exceeds the value of the property.

(b) In choosing the most favorable method for the sale of property under this subsection, the division may consider:

(A) A public oral auction;

(B) An electronic commerce forum; and

(C) Any other method for sale that ensures the highest returns and provides for open, public participation.

(c) In choosing the most favorable location for the sale of property under this subsection, the division may consider:

(A) The population of the location;

(B) The cost of conducting the sale in the location;

(C) The type of property being sold;

(D) The public access to the proposed sale location, including parking; and

(E) Any other indicator of market potential of the location.

(2) For a sale by public oral auction held under subsection (1) of this section [shall be preceded by a single publication of], the division shall publish at least a single notice of the sale at least 10 days in advance of the sale in a newspaper of general circulation in the county where the property is to be sold. For a sale by a method other than public oral auction, the division shall publish at least a single notice in a newspaper of general circulation in Marion County.

(3) Securities listed on an established stock exchange shall be sold on the exchange at prices prevailing on the exchange at the time of sale. Other securities may be sold over the counter at prices prevailing at the time of sale or by any other method the administrator considers advisable.

(4) All securities and other intangible properties presumed abandoned under ORS 98.362 and delivered to the division shall be sold by the division at such time and place and in such manner as in the division’s judgment will bring the highest return.

(5) The division shall indemnify the holder of securities presumed abandoned under ORS 98.322 to the extent allowed by the Oregon Constitution. The division shall establish procedures by administrative rule to pay the rightful owner proceeds received from securities that were sold before the owner filed a claim to recover such securities.

(6) The purchaser at a sale conducted by the division pursuant to this section shall receive title to the property purchased, free from all claims of the owner or prior holder of the property and of all persons claiming through or under them. The division shall execute all documents necessary to complete the transfer of title.

SECTION 5. ORS 98.402 is amended to read:

98.402. (1) A person aggrieved by a decision of the administrator [or as to whose claim the administrator has failed to act within 90 days after the filing of the claim, may commence an action in an appropriate court to establish a claim. The proceeding shall be brought within 60 days after the decision of the administrator or within 180 days from the filing of the claim if the administrator fails to act. The action shall be tried de novo without a jury.] may request a hearing regarding the decision. The Division of State Lands shall conduct the hearing as a contested case proceeding in accordance with ORS 183.413 to 183.470.

(2) If the administrator fails to act on a claim within 120 days after a person files the claim under ORS 98.392, the person may file a petition under ORS 183.484 to request a court to compel the division to act pursuant to ORS 183.490.

SECTION 6. ORS 98.412 is amended to read:

98.412. (1) The Division of State Lands may require a person who has not filed a report to file a verified report stating whether or not the person is holding any unclaimed property reportable or deliverable under ORS 98.352.

(2) The division may at reasonable times and upon reasonable notice examine the records of any person to determine whether the person has complied with the provisions of ORS 98.352. The division may conduct the examination even if the person believes it is not in possession of any property reportable or deliverable under this section.

(3) To the extent possible, the division shall enter into agreements with state and federal agencies that regularly examine the records of financial institutions, trust companies, financial holding companies and bank holding companies, as defined in ORS 706.008, and of subsidiaries of such financial institutions, trust companies, financial holding companies and bank holding companies. Under the agreements, the state and federal agencies shall examine the records of the financial institution, trust company, financial holding company, bank holding company or subsidiary to determine compliance with ORS 98.352. If a state or federal agency does not enter into an agreement with the division under this subsection, the division shall conduct the examination of the records of financial institutions, trust companies, financial holding companies and bank holding companies to determine compliance with ORS 98.352.

(4) If a holder fails [after August 3, 1983,] to maintain the records required by ORS 98.354 and the records of the holder available for the periods subject to ORS 98.302 to 98.436 and 98.992 are insufficient to permit the preparation of a report, the division may [require] issue a finding that requires the holder to report and pay the amounts [which] that the division reasonably estimates from the report and available records. The division shall include in its finding a notice substantially similar to that specified under ORS 183.415. Additionally, the notice shall include information about opportunities to resolve disputes through a collaborative dispute resolution process.

(5) Any holder subject to examination under this section may request a hearing regarding the findings issued by the division. The division shall conduct a hearing under this subsection as a contested case proceeding in accordance with ORS 183.413 to 183.470.

SECTION 7. ORS 98.416 is amended to read:

98.416. (1) If any person refuses to deliver property to the Division of State Lands as required under ORS [98.362] 98.352, the division may bring a suit or action in a court of appropriate jurisdiction to enforce delivery of the property.

(2) The division may require a person who fails to pay or deliver property within the time prescribed by ORS 98.302 to 98.436 and 98.992 to pay interest from the date the division determines interest should have been paid. Interest shall be paid at the rate set by the Director of the Department of Revenue pursuant to ORS 305.220 (1) and (3).

Approved by the Governor June 10, 2003

Filed in the office of Secretary of State June 11, 2003

Effective date January 1, 2004

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