clerk, board of supervisors

109 Pages·2014·2.84 MB·English

Agenda__January 7, 2014
CLERK, BOARD OF SUPERVISORS
December 18, 2013
Honorable Board of Supervisors
County of Alameda
1221 Oak Street
Oakland CA 94612
Dear Board Members:
SUBJECT: Claims for Excess Proceeds - 2011 & 2012 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 decision regarding Excess Proceeds Claims from tax
defaulted property sales of 2011 and 2012, included in Attachment A and direct the Auditor­
Controller to distribute excess proceeds detailed in Attachment B pursuant to the Hearing Officer's
Decision:
Claimants Parcel No.(s)
A. Eugene Schneider 12-960-19
B. Alameda County Public Administrator 12-960-19
C. Office ofthe County Counsel 12-960-19
D. Armin & Kay Foundation 12-960-19
E. Matthew Wilson 12-960-19
F. Global Discoveries, Ltd. (2) 12-960-19
G. Rusty Keyes 12-960-19
H. Clem Keyes 12-960-19
1. Darryl Keyes 12-960-19
J. Julie Shular 22-347-6
K. Bonne Swett 96-542-18
L. Global Discoveries, Ltd. 425-400-44
M. Joyce M. Williams 32-2081-39
N. RanaNadimAhmed 426-50-90
O. Silvia Ahmed 426-50-90
P. Narinder Kapur 426-50-90
Q. Sukhdev Kapur 426-50-90
R. Michael Pecherer, Referee 43-4585-15
S. Rick Gilmore, General Manager of Byron Bethany Irrigation 99B-7030-1
District
T. Global Discoveries, Ltd. 525-1603-66-1
U. Robert Feole, Manager, Pheonixl fund LLC 79-10-1
V. Edwin & Sharon Fong 412-63-40
Honorable Board of Supervisors December 16,2013
W. FEM, LLC 412-63-40
X. Eric D. Tagle 80A-100-1
Y. FEM, LLC 80A-100-1
Z. Found Extra Money, LLC 7-595-3
AA. Allyce M. Carloss and Rachelle N. Carloss 7-595-3
BB. Henry T. Nguyen 80A-221-40
CC. FEM, LLC 80A-221-40
DD. Global Discoveries, Ltd. 45-5309-4
DISCUSSION/SUMMARY
The Tax Collector conducted sales of tax defaulted properties in 2011 and 2012. 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 written decisions on these claims and they are now
being submitted to your Board for approval and ratification. Your approval of the decision
presented in Attachment B will result in 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,
Anika Campbell-Belton
Clerk, Board of Supervisors
CP/db
P:\LegaIHO\bdltr_12_17_13
Attachments: Notice of Decisions; Excess Proceeds Distribution;
cc: Auditor-Controller
Tax Collector
File
SUSAN S. MURANISHI, County Administrator ANIKA CAMPBELL-BELTON, Clerk of the Board
1221 Oak Street, Room 536, Oakland, California 94612, [phone], Fax: [phone]
ATTACHMENT A

DECISION OF ASSESSMENT HEARII\IG OFFICER

COUNTY OF ALAMEDA

APPLICANT: EUGENE SCHNEIDER; ALAMEDA COUNTY
PUBLIC ADMINISTRATOR; OFFICE OF COUNTY
COUNSEL; BUSHNELL BUSINESS
CORPORATION ARMIN & KAY FOUNDATION;
GLOBAL DISCOVERIES, LTD.; RUSTY KEYES;
CLEM KEYES; DARRYL KEYES
PARCEL: 12-960-19
FILE NO: EXCESS PROCEEDS SALE OF MARCH 2011
HEARING DATE: AUGUST 15, 2013, OCTOBER 17, 2013
AGENDA NUMBER: THREE (OCTOBER 17)
HEARING OFFICER: JED SOMIT, Esq.
FACTS:
The March, 2011 tax default sale of this parcel generated
approximately ten Claims for the Excess Proceeds of about $78,000.
A. Eugene Schneider. Mr. Schneider, in his amended Claim received
March 16, 2012, claims $6,533.09 "as of April 2, 2012 plus $1.49/day after
that" as a lienholder. (An earlier Claim by Mr. Schneider (April 20, 2011)
claims $10,912.33 as of April 19, 2011, plus $1.49/day after that; this
seems to be an error in computing interest; the later claim states it "corrects
the claim previously filed.") His Claim is supported by an Order Approving
Report of Successor Administrator, Etc., filed April 1, 2010 in Estate of Hazel
M. Keyes, Alameda Superior No. RP06-264963, recorded April 2, 2010
(2010093105), which in relevant part for this Claim orders that four debts
will be "made liens against the real property described on Exhibit A" (the
HEARING OFFICER DECISION Page 1
description includes the parcel number, which is the same as the parcel sold
at the tax default sale; the legal description also matches that on the Tax
Deed to Purchaser of Tax Defaulted Property). Two of the charges are in
favor of claimant Schneider, for a total of $5,443.00. The Order also states
interest will accrue at 10% per annum until paid.
The Order also provides that the real property itself is distributed in
five undivided interests to the decedent's sons: Kermit, Rusty, Clem, Darryl
and Gary.
B. Alameda County Public Administrator, through Raymond S. Smith,
filed a Claim for $4,450.00 on May 4, 2011. This Claim relies upon the same
April 1, 2010 Order Approving Report, and the grant of $4,450.00 to
Gregory J. Ahern, Public Administrator, contained in that Order.
C. Office of County Counsel, relying also on the same Order, filed a
Claim for $1,112.50, which was awarded to Richard E. Winnie, County
Counsel, in the Order.
D. Marijo E. Wilson, as attorney-in-fact for Gary Keyes and as Vice­
President of Bushnell Business Corp., filed a Claim for 1/5 of the excess
proceeds. Mr. Keyes' status as an owner of record also devolves from the
April 1, 2010 Order Approving Report. The Claim states that his brothers are
willing to give up any claim to the excess proceeds in his favor, and if they
don't file a Claim, his recovery should be increased to include that of the
non-claiming brothers.
HEARING OFFICER DECISION Page 2
The unofficial claim form asserts that Mr. Keyes was informed where
the money was located, how much was at stake, and that he could make the
claim himself. There is no statement about disclosure of material facts. A
Limited Power of Attorney from Gary Keys to Dr. Marijo Wilson is also
prOVided, specific to the excess proceeds, also stating he realizes he could
claim the funds himself. The Power of Attorney ceases 30 months after
execution (November 17, 2011) or "when the funds are returned to the
Grantor." The representation about the right to file a claim himself is
repeated in an Affidavit of Authorization and Release of Information.
Also included with this Claim is a Deed recorded June 15, 1960, by
which Clemmon Keys grants the same parcel to Hazel M. Keyes, his wife, as
her sole and separate property.
E. The Armin & Kay Foundation. Gary J. Keyes filed a Claim for
Excess Proceeds on March 19, 2012, as a person with title of record,
claiming all of the excess proceeds.
He signed a Power of Attorney on March 16, 2012 appointing The
Armin & Kay Foundation as his attorney-in-fact to inter alia "claim excess
proceeds held for me by Alameda County on my behalf." The statutory
language on assignment and disclosure of facts is also included. A
Contingency Fee Agreement is also provided, which states the Gary Keyes is
eligible to claim approximately $25,989.51; the Agreement provides for a
40% contingent fee.
HEARING OFFICER DECISION Page 3
A Certificate of Death for Hazel Mildred Keyes, showing her death on
June 22, 1989, is included with the Claim, as well as a Certificate of Live
Birth for Gary Joseph Keyes, which shows his mother as Hazel Mildred
Robinson (maiden name) and father as Clemmon Keyes.
A later communication to the Clerk of the Board suggests that Mr.
Keyes has terminated the representation by The Armin & Kay Foundation,
and will appear himself at the hearing.
F. Global Discoveries, Ltd., filed a Claim on assignment from Gary
Keyes, claiming $15,923.20; the Claim was received April 12, 2012. This is
based on the Order Approving Report. A Certificate of Death for Hazel
Mildred Keyes, and a Certificate of Live Birth for Gary Keyes, is also included.
Gary Keyes' Assignment to Global Discoveries is dated April 5, 2012, or only
a few weeks after his Power of Attorney and assignment to The Armin & Kay
Foundation. The Assignment satisfies all of the statutory requirements.
G. Global Discoveries, Ltd., as assignee of Kermit Keyes, filed another
Claim for Excess Proceeds on this parcel, also received April 12, 2012. This
Claim is supported by the same information as for the assignment from
Gary, except the Certificate of Live Birth is for Kermit Octave Keyes. The
Claim is for $15,953.20+/- or 100% of the assignor's share.
H. Rusty Keyes filed a Claim received May 17, 2011, claiming
$15,593.00. He provided his Certificate of Live Birth.
I. Clem Keyes filed a Claim received April 22, 2011 for $15,593.00.
HEARING OFFICER DECISION Page 4
He also provided a Certificate of Live Birth.
J. Darryl Keyes filed a Claim received on January 20, 2012, claiming
$15,593.00. He also provided a Certificate of Live Birth.
County Counsel Memorandum
John T. Seyman, Deputy County Counsel, and Mallory L. Homewood,
Graduate Law Clerk, provided a Memorandum dated May 22, 2013, for the
Office of the County Counsel. The Memorandum finds that each Claim was
timely filed, as the Tax Deed to Purchaser was recorded on April 20, 2011.
The Memorandum recommends that the three lienholder claims be
paid with interest until paid. (There is no discussion on whether interest
ceases as of the date of sale.)
The Memorandum finds that the status of the five sons of Hazel Keyes
as persons with title of record was established. For the claims filed by Rusty,
Darryl and Clem Keyes, the recommendation is to grant their claims for
1/5th of the remaining proceeds after payment of the priority lienholder
claims. The assignment by Kermit Keyes to Global Discoveries is deemed
valid, and the recommendation is to grant this Claim as well.
On the three assigned Claims arising from Gary Keyes' status, the
Memorandum finds there is not an explicit statement in the Wilson
assignment that the right to claim the excess proceeds is being granted.
The status of the Claim by The Armin & Kay Foundation is unclear, since
Gary Keyes filed that Claim himself. The Assignment to Global Discoveries,
HEARING OFFICER DECISION Page 5
Ltd., was felt to be in proper form, but in light of the prior assignment(s), it
is unclear that Gary Keyes had any remaining right to assign.
Further Pre-Hearing Developments
A letter of July 10, 2013 was received from Global Discoveries, Ltd. It
states that Gary Keyes "has withdrawn all powers of attorney except Global
Discoveries, Ltd., and that Global is the proper claimant" for Gary. The
letter suggests that Gary considered the three assignments as pertaining to
"three separate funds", and was unaware they were the same funds. The
letter explains that Global lost contact with Gary from April 2011, until the
folloWing year. A Contingency Agreement signed April 6, 2011, is provided,
as well as a Claim Withdrawal signed April 17, 2012, concerning the
assignment to "Bushnell Business Corporation (Mary Jo [sic] Wilson)", as
well as a general revocation of "any other agency appointments that may
have previously been executed".
An Affidavit of Marijo Wilson, dated August15, 2013, was received at
the hearing. This recites that Gary Keyes executed an Assignment for Right
to Collect Excess Proceeds on June 4, 2012. Previously, he had executed a
Limited Power of Attorney (November 17,2011) and on the same date, a
Contingency Fee Agreement and an Affidavit of Authorization and Release of
Information. The forms used were based on County of Los Angeles forms.
Mr. Keyes "manifested to me that he intended to transfer to Bushnell and
me, without further action or manifestation of intention, the right to the
HEARING OFFICER DECISION Page 6
"Claim of Excess Proceeds" in respect of APN 12-960-19."
Hearing on August 15, 2013
Claimant Eugene Schneider, Jed Byerly (Global Discoveries, Ltd.) on
behalf of several claimants, and Matthew Wilson for Marijo Wilson (one of
Gary Keyes' assignees), appeared at the initial hearing on August 15, 2013.
John Seyman, Deputy County Counsel, also participated.
On the issue of the date to which interest is to be paid on the first
priority claims, the Hearing Officer indicated his usual practice is to award
interest only to the date of the tax default sale. John Seyman noted that the
value of a claim for excess proceeds is determined as of date of the tax
default sale. Mr. Schneider argued that the interest should be paid until the
amount due is paid.
The Hearing Officer ordered that any party wishing to brief the issue of
the date through which interest on a lienholder's claim should be paid should
submit that material by September 16, 2013.
Attention was then focused on the multiple, inconsistent assignments
by Gary Keyes. There are three claims on assignment from Gary Keyes. Jed
Byerly noted he has filed a Withdrawal of Claims signed by Gary Keyes.
There was discussion by Mr. Wilson and Mr. Byerly of whether Gary Keyes
had the legal power to withdraw his other assigned Claims or to revoke his
power of attorney.
Mr. Wilson, for Marijo Wilson, submitted an Assignment of Right to
HEARING OFFICER DECISION Page 7
Collect Excess Proceeds, which was marked as Exhibit 1. Mr. Wilson felt this
probably cures the "disclosure of facts" issue from the County Counsel
Memorandum. He felt the first, earliest assignment should prevail. His
conclusion was that the remaining excess proceeds, after lienholders' claims,
should be granted to Marijo Wilson and Bushnell Business Corp. He testified
that Gary Keyes is homeless.
The Hearing Officer ordered that any party wishing to submit a brief on
which of Gary Keyes' three assignments should be recognized could submit
that by October 1, 2013.
The matter was continued to the Legal Hearing Officer agenda for
October 17,2017.
Post-Bl15 Developments Prior to 10117 Hearing
Additional material was received before the hearing of October 17,
2013.
A. Eugene Schneider submitted a "Memorandum Re Payment of
Interest on Excess Proceeds Claim". In this he argues that a public entity
pays interest on a judgment as would any other creditor. He cited California
Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, for
the proposition that the public entity must pay interest on other matters as
well. He argues that interest is paid at the 7% rate under Code of Civil
Procedure section 685.010, again citing California Fed. Savings & Loan, at
344-345, where the opinion discusses "postjudgment interest". Here,
HEARING OFFICER DECISION Page 8