CLERK, BOARD OF SUPERVISORS

Transcription

1 Agenda February 10, 2015 CLERK, BOARD OF SUPERVISORS Honorable Board of Supervisors County of Alameda 1221 Oak Street Oakland CA Dear Board Members: January 28, 2015 SUBJECT: Claims for Excess Proceeds 2013 Tax Defaulted Property Sales RECOMMENDATIONS: Pursuant to the applicable provisions of the Revenue and Taxation Code, it is recommended that your Board approve the Hearing Officer s decisions regarding Excess Proceeds Claims from tax defaulted property sales of 2013, included in Attachment A, and direct the Auditor-Controller to distribute the excess proceeds to following claimants pursuant to the Hearing Officer s decisions detailed in Attachment B: Claimants A. Cynthia Williams B. Olivia Cavness C. Orestus Cavness, Jr. D. Cynthia Leong E. Albert Leong F. Household Finance Parcel No.(s) DISCUSSION/SUMMARY The Tax Collector conducted sales of tax defaulted properties in Any excess in the proceeds of these sales, over and above the amounts collected to satisfy the tax delinquencies, were deposited by the Tax Collector in a delinquent tax sale trust fund. The excess proceeds were subject to claims made by parties of interest in accordance with applicable provisions of the California Revenue and Taxation Code. All claimants were given the opportunity for a hearing before the Assessment Hearing Officer to establish the priority and extent of their claims. The Assessment Hearing Officer has rendered her written decisions on these claims and they are now being submitted to your Board for approval and ratification. SUSAN S. MURANISHI, County Administrator ANIKA CAMPBELL-BELTON, Clerk of the Board 1221 Oak Street, Room 536, Oakland, California 94612, (510) , Fax: (510)

2 Honorable Board of Supervisors February 10, 2015 Your approval of the decisions listed m Attachment B will result m the Auditor-Controller distributing the excess proceeds. FINANCING: There is no impact on the General Fund. Excess proceeds claims are paid from funds held in trust. Sincerely, A CB/db P:\LegalHO\bdltr _ 2_I0_15 Attachments Anika Campbell-Belton Clerk, Board of Supervisors cc: Auditor-Controller File SUSAN S. MURANISHI, County Administrator ANIKA CAMPBELL-BELTON, Clerk of the Board 1221 Oak Street, Room 536, Oakland, California 94612, (510) , Fax: (510)

3 Attachment A DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAMEDA APPLICANTS: ASSESSOR'S PARCEL#: FILE#: HEARING DATE: AGENDA#: HEARING OFFICER: CYNTIIlA WILLIAMS, OLIVIA CAVNESS, AND ORESTUS CAVNESS, JR EXCESS PROCEEDS SALE OF MARCH, 2013 DECEMBER 18, , 7, & 8 MARGARET FUilOKA, ATTORNEY AT LAW FACTS: Cynthia R. Williams, Olivia Cavness, and Orestus Cavness, Jr. each filed a Claim for Excess Proceeds concerning the March 2013 auction sale of this parcel. The Claims state that as parties of interest they are the rightful claimants of the excess proceeds. No other Claims for Excess Proceeds were filed and no Claims of the first priority were filed. Cynthia Williams filed a Claim for Excess Proceeds on April 7, 2014 and the tax deed was recorded qn April 24, The Claim is timely because it was filed before one year from the date the tax deed was recorded. Olivia Cavness and Orestus Cavness, Jr. filed Claims for Excess Proceeds on February 6, 2014 and the tax deed was recorded on April 24, The Claims are timely because they were filed before one year from the date the tax deed was recorded. Several documents accompanied the Claims: Cynthia Williams A County of Alameda "Claim for Excess Proceeds" referencing APN , signed by Cynthia Williams and stamped "received" by the Assessment Appeals Board on April 7, Birth Certificate of Cynthia Williams Death Certificate of Orestus Cavness, Sr.

4 A photocopy of Cynthia Williams' Georgia driver's license It appears from the Claim that Cynthia Williams is the daughter of the late Orestus Cavness, Sr. Olivia Cavness A County of Alameda "Claim for Excess Proceeds" referencing APN , signed by Olivia Cavness. The claim was stamped "received" by the Assessment Appeals Board on February 6, A photocopy of Olivia Cavness's Texas driver's license A photocopy of Olivia Cavness's birth certificate An unsigned Texas affidavit ofheirship Death Certificate of Orestus Cavness, Sr. A photocopy of Orestus Cavness, Jr.' s Georgia driver's license, birth certificate, and U.S. passport It appears from the Claim that Olivia Cavness is the daughter of the late Orestus Cavness, Sr. Orestus Cavness, Jr. A County of Alameda "Claim for Excess Proceeds" referencing APN , signed by Orestus Cavness, Jr. on January 30, The claim was stamped "received" by the Assessment Appeals Board on February 6, A photocopy of Orestus Cavness, Jr.' s Georgia driver's license A photocopy of Orestus Cavness, Jr.' s birth certificate A photocopy of Orestus Cavness, Jr. 's U.S. passport It appears from the Claim that Orestus Cavness, Jr. is the son of the late Orestus Cavness, Sr. The Office of the County Counsel provided a Memorandum dated December 3, 2014, written by John T. Seyman, Deputy County Counsel and Logan Talbot, Graduate Law Clerk, which reviewed the Claims and supporting documents. It notes that while the Claims--were timely filed, there is insufficient evidence to establish that the Claimants are parties of interest as a "lienholders of record prior to the recordation of the tax deed" or "persons with title of record to all or any 2

5 portion of the property prior to the recordation of the tax deed to the purchaser at the auction." Cal. Rev. & Tax Code Section 4675(e)(2). The Memo states the claims contain no recorded instruments showing that the property ever belonged to Orestus Cavness, Sr. The Memo notes the Claimants would need to show that they are the rightful heirs of Orestus Cavness, Sr. The Memo states that the Hearing Officer has discretion to allow Claimants to provide additional evidence at the hearing to support their Claims. The Claimants participated in the December 18, 2014 hearing by teleconf rence because they live out of state. Cynthia Williams testified that she and Orestus Cavness, Jr. are the daughter and son, respectively, of Orestus Cavness, Sr. and Waltereina Fullmore (deceased second wife) and that her father, Orestus Cavness, Sr. died in 2009 without a will. She further testified that her father owned the subject property in Oakland at the time of his death. Olivia Cavness testified that she is the daughter of Orestus Cavness, Sr. and his first wife, Jeanette Harris, who predeceased him. Orestus Cavness, Jr. testified that he is the son oforestus Cavness, Sr. and Waltereina Fullmore who died in This hearing officer gave Claimants 30 days to provide documents that prove that Orestus Cavness, Sr. was the owner of the subject property at the time of his death and that the Claimants are the rightful heirs to the property: 1) A Recorded Grant Deed for the subject property and 2) Notarized Affidavits from the Claimants pursuant to Revenue & Tax Code Section 4675 (t). It was agreed that Cynthia Williams or Orestus Cavness, Jr. would provide the affidavit on behalf of Olivia Cavness who, due to health issues, is unable to. Deputy County Counsel John Seyman concurred. DECISION: The Claims for Excess Proceeds are granted. All proceeds shall be distributed in equal amounts to Cynthia Williams, Olivia Cavness, and Orestus Cavness, Jr. RATIONALE: Revenue & Taxation Code Section 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by Section If not claimed within one year, the remaining amounts shall be distributed as provided in Section b ), after deduction of administrative costs. 3

6 ( Revenue & Taxation Code Section 4675(a) provides that any party of interest in the property may file with the County a claim for the excess proceeds, in proportion to his or her interest held with others of equal priority in the property at the time of sale, at any time prior to the expiration of one year following the recordation of the tax collector's deed to the purchaser. The tax deed was recorded on April 24, 2013 and the Claims were filed on February 6, 2014 and April 7, 2014, within the statutory period. Section 4675(e) defines the parties of interest who may make a claim: "For purposes of this article, parties of interest and their order of priority are: ( 1) First, lienholders of record prior to the recordation of the tax deed to the purchaser in the order of their priority. (2) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser." Section 4675(f) states, "In the event that a person with title of record is deceased at the time of the distribution of the excess proceeds, the heirs may submit an affidavit pursuant to Chapter 3 (commencing with Section 13100) of _ Part 1 of Division 8 of the Probate Code, to support their claim for excess proceeds." It is established by a preponderance of the evidence that Claimants are parties of interest as the children (heirs) of Orestus Cavness, Sr. They provided copies of birth certificates, driver's licenses, and passport as well as sworn testimony at the hearing. They testified that they are the heirs of Orestus Cavness, Sr., that their father owned the subject property at the time of his death, and that he died intestate with no personal representative. They testified that their mothers, Waltereina Fullmore and Jeanette Harris predeceased their father. Claimants timely mailed to the County the requested documents. They mailed a copy of the Recorded Grant Deed showing that Orestus Cavness, Sr. was the owner of the subject property. He sold the property in 1979 to an entity called Texhaw, Inc., which he and the Claimants owned. A search by the Alameda County Tax Assessor's Office revealed that the property taxes had been paid by Texhaw, Inc. until 2009, the year Orestus Cavness, Sr. died. The taxes were paid to the County by checks signed by Orestus Cavness, Sr. In addition, a Memorandum dated January 2, 2015 from Orestus Cavness, Jr. Was timely received by the County. It stated his father paid the taxes on the property until his death in 2009 and that he still owned the property under Texhaw, Inc. at the time of his death. Claimants also timely mailed notarized affidavits to the County pursuant to Tax & Revenue Code Section 4675(f). The affidavits support their 4

7 Claims that they are the children (heirs) of Orestus Cavness, Sr. and are entitled to all the excess proceeds in equal amounts. DATED: January 22, 2015 ~~~ ~Fujioka, Atto~y at La~ Legal Hearing Officer 5

8 DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAMEDA APPLICANT: ASSESSOR'S PARCEL#: FILE#: HEARING DATE: AGENDA#: HEARING OFFICER: CYNTHIA C. AND ALBERT W. LEONG EXCESS PROCEEDS SALE OF MARCH, 2013 DECEl\IBER 18, &3 MARGARET FUilOKA, ATTORNEY AT LAW FACTS: Cynthia C. Leong and Albert W. Leong, husband and wife ("Claimants"), each filed timely Claims for Excess Proceeds concerning the March, 2013 auction sale of this parcel. The Claims state that as parties of interest they are the rightful claimants of the excess proce'eds. No other Claim for Excess Proceeds was filed. John Seyman, Deputy County Counsel, and Logan Talbot, Graduate Law Clerk, filed a Memorandum dated November 10, 2014 which noted that both claims were for APN The Claims were accompanied by copies of valid California driver's licenses for Cynthia and Albert Leong. The Memorandum concludes that while both Claims were timely filed, they contained insufficient evidence to establish that they are parties of interest as "lienholders of record prior to the recordation of the tax deed" or "any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser at the auction." Cal. Rev. & Tax Code Section 4675(e)(2). The Memo states the Claims contain no recorded instrument showing that Cynthia Leong and Albert Leong were parties of interest, but that the Hearing Officer has discretion to allow Claimants to provided additional evidence at the hearing to support their Claims. Claimants personally appeared at the hearing on December 18, They produced two documents: 1) County of Alameda Assessor's Office Property Value System for Parcel Number dated January 1, (Exhibit 1). Said document listed Claimants as owners of 852 Mead Ave., Oakland CA which corresponds to APN # and 2) Individual Grant Deed for parcel APN# recorded March 4, f991 identifying the grantees as Albert W. Leong and Cynthia C. Leong, husband and wife to receive an undivided 50% interest as their community property and Alex C. Ku and Linda 0. Ku, husband and wife, as to an

9 undivided 50% interest in the property identified as APN # (Exhibit 2). No communication was received from Alex and Linda Ku, they did not file Claims for Excess Proceeds, and they did not appear at the hearing. Claimants testified they purchased the subject property APN # and recorded the grant dee~ on March 4, DECISION: The Claim for Excess Proceeds is granted. Claimants are entitled to 50% of the Proceeds because they owned an undivided 50% interest in the subject property. RATIONALE: Revenue & Taxation Code Section 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by Section If not claimed within one year, the remaining amounts shall be distributed as provided in Section (b ), after deduction of administrative costs. Revenue & Taxation Code Section 4675(a) provides that any party of interest in the property may file with the County a claim for the excess proceeds, in proportion to his or her interest held with others of equal priority in the property at the time of sale, at any time prior to the expiration of one year following the recordation of the tax collector's deed to the purchaser. The tax deed was recorded on April 24, 2013 and the Claims were filed on March 4, 2014 within the statutory period. Revenue & Tax Code Section 4675(e) defines the parties of interest who may make a claim: "For purposes of this article, parties of interest and their order of priority are: (1) First, lienholders of record prior to the recordation of the tax deed to the purchaser in the order of their priority. (2) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser." There were no other claimants of the first priority. The 2 claims of Claimants were filed based on title of record. Claimants' status as persons with title of record prior to the recordation of the tax deed is established by the 1991 Grant Deed. 2

10 A claimant is entitled to only the share of the excess proceeds corresponding to the claimant's ownership interest, assuming no claims of a higher priority are filed, even when the owner fails to file a Claim for Excess Proceeds. First Corporation, Inc. v. County of Santa Clara (1983) 146 Cal.App.3d 841. The Grant Deed shows that Claimants are the owner of 50% of the fee, the other 50% was granted to Alex C. Ku and Linda 0. Ku. Claimants Albert & Cynthia Leong are entitled to 50% of the excess proceeds. DATED: January 16, 2015 Margar t Fujioka, Legal Hearing Officer 3

11 DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAMEDA APPLICANT: ASSESSOR'S PARCEL#: FILE#: HEARING DATE: AGENDA#: HEARING OFFICER: HOUSEHOLD FINANCE (JEFFREY PARIS, ESQ.) EXCESS PROCEEDS SALE OF MARCH, 2013 DECEMBER 18, MARGARET FUilOKA, ATTORNEY AT LAW FACTS: Jeffrey Paris, attorney at Paris and Paris, LLP filed a timely Claim for Excess Proceeds concerning the March, 2013 auction sale of this parcel. The Claim states that as a secured lienholder on the subject property as set forth in attached copies of the recorded abstract of judgment recorded in the offices of the Alameda County Recorder, he is the rightful claimant of the excess proceeds. No other Claim for Excess Proceeds was filed. John Seyman, Deputy County Counsel, and Samantha Finegan, Law Clerk, filed a Memorandum dated September 17, The Memorandum concludes that Household Finance's claim contains insufficient evidence to establish that it is a party of interest as "lienholder of record prior to the recordation of the deed." It further states that claimant has not provided any accounting statement setting forth the original amount of the lien, the total amount of payments received, and the amount that was due as of the date of the sale of the property. The Abstract of Judgment was issued on November 15, 2002 more than 10 years prior to the sale of the Property. The claim contains no recorded deed or other evidence to establish that Lena Linebarger was the prior owner pursuant to Revenue & Tax Code Section Claimant responded In a letter dated December 2, 2014 in lieu of his attendance at the hearing, that there is no further documentation or accounting

12 available and that the judicial lien issued on November 15, 2002 remains of record with the County Recorder. At the hearing, this hearing officer requested the County mail a letter to Claimant requesting documentation proving that Household Finance is a secured lienholder and that Lena Linebarger was the prior record owner. The letter was mailed on December 22, 2014 and gave Claimant 14 days to provide such proof. To date, no response was received, however upon independent research of County records, this hearing officer has confirmed that APN is th Ave. Oakland, CA and that Lena Linebarger was the owner. The Abstract of Judgment issued by the Alameda County Superior Court in 2002 was recorded against Lena L. Linebarger at the subject property APN ( th Ave., Oakland) It appears that Lena L. Linebarger is the same person as Lena Linebarger. DECISION: The Claim for Excess Proceeds is granted. All of the excess proceeds shall be distributed to Household Finance Corporation of California. RATIONALE: Revenue & Taxation Code Section 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by Section If not claimed within one year, the remaining amounts shall be distributed as provided in Section (b ), after deduction of administrative costs. Revenue & Taxation Code Section 4675(a) provides that any party of interest in the property may file with the County a claim for the excess proceeds, in proportion to his or her interest held with others of equal priority in the property at the time of sale, at any time prior to the expiration of one year following the recordation of the tax collector's deed to the purchaser. The tax deed was recorded on April 24, 2013 and the Claim was filed on September 11, 2013, within the statutory period. Section 4675(e) defines the parties of interest who may make a claim: "For purposes of this article, parties of interest and their order of priority are: (1) First, lienholders of record prior to the recordation of the tax deed to the purchaser in the order of their priority. (2) Second, any person with title of rec9rd to all or any portion of the property prior to the recordation of the tax deed to the purchaser." 2

13 The Claim and supporting documents along with the facts revealed from independent research are sufficient to establish Claimant as a party in interest and Lena Linebarger as the prior owner of the subject property. In addition, the Alameda County Superior Court entered judgment against Lena L. Linebarger AKA Lena Linebarger in case # The weight of the evidence shows that Claimant is a party of interest as lienholder of record and therefore entitled to all of the excess proceeds. DATED: January 14,

14 Honorable Board of Supervisors February 10, 2015 ATTACHMENT B Excess Proceeds Distribution From Tax Defaulted Property Sales for March 2011 & 2012 Claimant Parcel Number Amount Wait 30 days before payment Cynthia Williams $ No Olivia Cavness $ No Orestus Cavness, Jr $ No Cynthia Leong $ No Albert Leong $ No Household Finance Attn: Jeffrey Paris $ No