CLERK, BOARD OF SUPERVISORS

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1 Agenda November 22, 2011 CLERK, BOARD OF SUPERVISORS October 21, 2011 Board of Supervisors County of Alameda 1221 Oak Street Oakland CA Dear Board Members: SUBJECT: Claims for Excess Proceeds Tax Defaulted Property Sales RECOMM:ENDATIONS: Pursuant to the applicable provisions of the Revenue and Taxation Code, it is recommen~ed that your Board approve the Hearing Officer's decision regarding Excess Proceeds claims from tax defaulted property sales of2008, included in Attachment A; and direct the Auditor-Controller to ~ distribute excess proceeds detailed in Attachment B pursuant to the Hearing Officer's decision. Claimant Parcel No. >'- 1. Elaine Phillip 2. Deloris J. White-Morris 3. Loretta A. White-Walls DISCUSSION/SUMMARY On March 15, 2008, the Tax Collector conducted sales of tax defaulted properties. 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 his wrinen decisions on these claims and they are now being submitted to your Board for approval and ratification. Your approval of the decisions presented in Anachment B will result in the Auditor-Controller distributing the excess proceeds.

2 Board of Supervisors November 22,2011 FINANCING: There is no impact on the General Fund. Excess proceeds claims are paid from funds held in trust. Sincerely, CHG P;\LegalHO\bdltr_II Attachments cc: County Administrator County Counsel Auditor-Contro IIer Tax Collector Claimants SUSAN S. MURANISHI, County Administrator CRYSTAL RISHIDA GRAFF, 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 APPLICANT: ELAINE PHILLIPS PARCEL: FILE NO: EXCESS PROCEEDS 3/15/08 SALE HEARING DATE: JUNE 16, 2011 AGENDA NUMBER: SIX HEARING OFFICER: JED SOMIT, Esq. FACTS: Elaine Phillips filed a Claim for Excess Proceeds resulting from t~e tax default sale of the parcel on March 15, The Claim asserts nothing more than that she is the daughter of Joe White, deceased as of 1995, and that she is a party of interest. Claude F. Kolm and Farand C. Kan, Deputy County Counsels, submitted a Memorandum for the Office of County Counsel dated Apri[ 6, [t notes excess proceeds exceeding $60,000. It notes the copy of the Claim they reviewed had attached a Deed in Joint Tenancy, granting certain property to Joe White and Maude White, his wife, as Joint Tenants. The Memorandum finds that the Claim was timely. It notes that no other clai ms to the excess proceed 5 have been filed. However, the Memorandum concludes that Claimant has not submitted a Probate Code affidavit or other showing of her right to succeed to Joe White's interest, nor proof that Joe White survived Maude White. Further, the Deed is not linked to this property, lacking any IIAPN". The recommendation is to give Claimant an opportunity to supplement her Claim for Excess Proceeds. HEARING OFFICER DECISION Page 1

4 Further material from Claimant was received on May 24, First, Claimant disagrees with the County Counsel recommendation, but notes she cannot attend the hearing and requests a continuance (but "to the next available date" is crossed out). A letter dated May 24, 2011, reviews the documents submitted, and states that Claimant will not attend the hearing. The Hearing Officer interprets the letter as submitting the matter on the documentation. The additional documentation: Certificate of Death for Maude White, showing a death in The informant was Joseph White. Certificate of Death for Joseph White, showing his death on February 24, 1995, then widowed. Certificate of Live Birth for Elaine White, born December 12, 1951, to "Mand Mathews" (Mathaws was Maude's father's name, and the age is correct: 26 ~ in 1951). Decla ration under Pro bate Code Section for the decedent Joseph White, signed under penalty of perjury by Elaine Phillips. Table of Heirship for Joseph White, subscribed and sworn to before a Louisiana notary on December 4, 2008, listing 3 children of the decedent, including Elaine White, all of whom were alive at that time (and showing 5 grandchildren). Deed Joint Tenancy recorded March 25, 1955, granting the property to Joe White and Maude White, his wife, as Joint Tenants. HEARING OFFICER DECISION Page 2

5 DECISION: Claimant Elaine Phillips is given two months from the mailing of this decision to submit Pro bate Code Section affidavits for the Estate of Josep h White from Deloris J. White-Morris and from Loretta A. White-Walls. Upon receipt of such affidavits, the Claim shall be deemed amended to include all three heirs, together the "successor of the decedent" Joseph White. All - of the excess proceeds shall be paid jointly to Elaine Phillips, Deloris J: White-Morris and Loretta A. White-Walls. If such Affidavits.are not received timely, then the Claim for Excess Proceeds shall be deemed denied. RATIONALE: Using the online services of the Alameda County Tax Collector, the Hearing Officer determined that the address given for decedent Joseph White's usual residence in his Certificate of Death was indeed the parcel at issue, which satisfactorily makes the connection between Mr. White and the parcel which the County Counsel Memorandum noted was missing. Revenue & Taxation Code 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by sectiona675; if not claimed within one year, the remaining amount shall be distributed as provided in section (b), after deduction of administrative costs. HEARING OFFICER DECISION Page 3

6 Revenue & Taxation Code 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. Section 4675{e) defines the parties of interest who may make a claim: "For the 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 prio rity. (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) provides: "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. " The Certificate of Death for Maude White establishes that Joseph White survived her, and thus became the surviving joint tenant and sole owner upon his wife's death. The Certificate of Live Birth for Claimant establishes that Claimant is a daughter of Joseph White. If she had been his sole surviving child, the Declaration under Probate Code Section would have been sufficient to establish her claim to his estate, and derivatively, to the excess proceeds. However, the Table of HEARING OFFICER DECISION Page 4

7 Heirship for Joseph White shows that there are other children, who seem to be alive. Under Probate Code 6402{aj, the children, as "issue", take equally. The omission of the other children from the Probate Code Section Affidavit renders it deficient. The Affidavit must be executed by, and state, that the declarants are the "successor of the decedent." Under Probate Code Section 13006(bj, in the intestate situation, the "successor of the decedent" is "the sale person or all of the persons who succeeded to the particular item of property of the decedent under Sections 6401 and 6402". Thus, the Affidavit must be executed by all of the heirs, or in this case, by all three children. The Hearing Officer will accept separate Affidavits, if they are collectively signed by all of the heirs. The Hearing Officer will deem the.claim amended to include all of the heirs who sign the Affidavits. That submission would establish the claimants as persons of interest of the second priority. There are no other claims, and under the circumstances, the claimants would be entitled to all of the proceeds. Hence, all that is necessary to complete the proof of the Claim is for appropr.iate Probate Code Section Affidavits for the Estate of Joseph While to be executed by Deloris J. White-Morris and Loretta A. White-Walls. Dated: July 7, 2011 ~~~c~--... Jed Somit, Esq. Hearing Officer HEARING OFFICER DECISION Page 5

8 DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAMEDA SECOND DECISION APPLICANT: ELAINE PHILLIPS PARCEL: FILE NO: EXCESS PROCEEDS 3/15/08 SALE HEARING DATE: JUNE 16, 2011 AGENDA NUMBER: SIX HEARING OFFICER: JEO"SOMIT, Esq. The prior Decision in this matter stated: Claimant Elaine Phillips is given two months from the mailing of this decision to submit Probate Code Section affidavits for the Estate of Joseph White from Deloris J. White-Morris and from Loretta A. White-Walls. Upon receipt of such affidavits, the Claim shall be deemed amended to include all three heirs, together the "successor of the decedent" Joseph White. All of the excess proceeds shall be paid jointly to Elaine Phillips, Deloris J. White-Morris and Loretta A. White-Walls. If such Affidavits are not received timely, then the Claim for Excess Proceeds shall be deemed denied. The Hearing Officer has been informed that the Decision was mailed on July 18, Under cover of letter dated September 1, 2011, a Probate Code Affidavit was" received concerning the death of Joseph White from Deloris Jane Morris and from Loretta Ann White. An accompanying letter notes that Ms. White's marriage to Mr. Walls ter~inated, so she resumed using Loretta Ann 'JYhite as her name. There is sufficient information to show that Deloris Jane Morris is the same person as Deloris J. White-Morris. HEARING OFFICER DECISION Page 1

9 The only issue is that the Affidavit, dated August 30, 2011, was hot executed or received within the 30 day period of the Decision. The 30-days was not jurisdictional, so the Hearing Officer has the ability to grant the Claim for Excess Proceeds. Doing so will not offend any fiscal expectation of the County,. since the funds were never part of the County's rightful income. Under the circumstances, the Hearing Officer will disregard the untimeliness, and allow the Claim for Excess Proceeds to be granted. DECISION: The Claim for Excess proceeds is deemed amended to be a claim jointly by Elaine Phillips., Deloris Jane Morris and Loretta Ann White. For the reasons given in the prior Decision, the amended Claim is granted. All of the excess proceeds shall be paid jointly to Elaine Phillips, Deloris J. --.;:.. Morris and Loretta A. White. Dated: October 19, ~~ Jed Somit, Esq. Legal Hearing Officer HEARING OFFICER DECISION Page 2

10 Board of Supervisors November 22, 2011 ATTACHMENT B Excess Proceeds Distribution From Tax Defaulted PropertY Sales \Vait 90 days Claimant Parcel Sale Date Amount before Number payment Elaine Phillips, Deloris Jane Morris, & Loretta Arm /15/08 $60, NO White Katherine Holton Rd. Amite, LA or SUSAN S. MURANISHI, County Administrator CRYSTAL HlSHIDA GRAFF, Clerk of the Board 1221 Oak Street, Room 536, Oakland, California, (510) , Fax: (510)