What is the law regarding abandonment in Indiana?

02/01/2007 - Real Property - State: IN #1260

Full Question:

What is the law regarding abandonment in Indiana?

Answer:

Indiana Law Summary Uniform Disposition of Unclaimed Property

Indiana Code
Title 32, Article 9, Chap. 1.5
Sec. 1.

(a) This chapter does not apply to any property held, due, and owing in a foreign country and arising out of a foreign transaction.
(b) This chapter does not apply to stocks, dividends, capital credits, patronage refunds, utility deposits, membership fees, account balances, or book equities for which the owner cannot be found and that are the result of distributable savings of a rural electric membership corporation formed under IC 8-1-13, a rural telephone cooperative corporation formed under IC 8-1-17, or an agricultural cooperative association formed under IC 15-7-1.
(c) This chapter does not apply to unclaimed overpayments of utility bills that become the property of a municipality under IC 36-9-23-28.5.
(d) This chapter does not apply to deposits required by a municipally owned utility (as defined in

Sec. 3.
The attorney general may adopt rules under IC 4-22-2 to carry out the provisions of this chapter and to effectuate its general purposes.

Sec. 4.
As used in this chapter, "administrator" means the administrator of the unclaimed property law of another state.

Sec. 5.
As used in this chapter, "apparent owner" means a person whose name appears on the records of a holder as the person entitled to property held, issued, or owing by the holder.

Sec. 6.
As used in this chapter, "business association" means a corporation, a limited liability company, a joint stock company, an investment company, a partnership, a business trust, a trust company, a savings association, a savings bank, an industrial bank, a land bank, a safe deposit company, a safekeeping depository, a bank, a banking organization, a financial organization, an insurance company, a mutual fund, a credit union, a utility, or other association for business purposes of two (2) or more individuals, whether or not for profit.

Sec. 7.
As used in this chapter, "domicile" means the following:

(1) The state of incorporation of a corporation.
(2) The state of the principal place of business of a holder other than a corporation.

Sec. 7.5.
As used in this chapter, "financial institution" means a depository financial institution that is organized or reorganized under Indiana law, the law of another state, or United States law. The term includes any of the following:

(1) A commercial bank.
(2) A trust company.
(3) A savings bank.
(4) A savings association.
(5) A credit union.
(6) An industrial loan and investment company.
(7) Any other entity that has powers similar to the powers of an entity described in subdivisions (1) through (6).

Sec. 8.
As used in this chapter, "holder" means a person obligated to deliver or pay to the owner property that is subject to this chapter.

Sec. 9.
As used in this chapter, "insurance company" means an association, a corporation, or a fraternal or mutual benefit organization, whether or not for profit, that is engaged in the business of providing insurance, including accident, burial, casualty, credit life, contract performance, dental, fidelity, fire, health, hospitalization, illness, life (including endowments and annuities), malpractice, marine, mortgage, surety, and wage protection insurance.

Sec. 10.

(a) For purposes of sections 26, 32, and 44 of this chapter, "last known address" means a description of the location of the apparent owner's residence or business sufficient for the purpose of the delivery of mail or the receipt of a communication by other means known to the holder.
(b) For purposes of sections 21 and 37 of this chapter, "last known address" means a description indicating that the apparent owner was located within Indiana, regardless of whether the description is sufficient to direct the delivery of mail.

Sec. 11.
As used in this chapter, "mineral" means gas, oil, coal, and other gaseous, liquid, and solid hydrocarbons, shale, oil shale, cement material, sand and gravel, road material, building stone, chemical substance, gemstone, metallic, fissionable and nonfissionable ores, colloidal and other clay, steam and other geothermal resource, and any other substance defined as a mineral under Indiana law.

Sec. 12.
As used in this chapter, "mineral proceeds" means proceeds currently payable and unclaimed and, upon the abandonment of those proceeds, all proceeds that would have become payable thereafter, including the following:

(1) Obligations to pay resulting from the extraction, production, or sale of minerals, including net revenue interests, royalties, overriding royalties, extraction and production payments, joint operating agreements, and pooling arrangements.
(2) Obligations for the acquisition and retention of a mineral lease, including bonuses, delay rentals, shut-in royalties, and minimum royalties.

Sec. 13.
As used in this chapter, "money order" includes an express money order and a personal money order on which the remitter is the purchaser. The term does not include the following:

(1) A bank money order on which the remitter is the purchaser.
(2) A bank money order or any other instrument sold by a banking or financial institution if the seller has obtained the name and address of the payee.

Sec. 14.
As used in this chapter, "owner" means a person who has a legal or an equitable interest in property subject to this chapter or the person's legal representative, including the following:

(1) A depositor in the case of property that is a deposit.
(2) A beneficiary in the case of property that is a trust other than a deposit in trust.
(3) A creditor, claimant, or payee in the case of other property.

Sec. 15.
As used in this chapter, "person" means an individual, a corporation, a business trust, an estate, a trust, a partnership, an association, a joint venture, a government, a governmental subdivision, agency, or instrumentality, a public corporation, a joint or common owner, or any other legal or commercial entity.

Sec. 16.
For purposes of section 49 of this chapter, "political subdivision" includes any Indiana municipality, county, civil township, civil incorporated city or town, public school corporation, university or college supported in part by state funds, or any other territorial subdivision of the state recognized or designated in any law, including judicial circuits, a public utility entity not privately owned, special taxing district or entity, and public improvement district authority or entity authorized to levy taxes or assessments. The term does not include any retirement system supported entirely or in part by the state.

Sec. 17.

(a) The definition in this section does not apply to section 24 of this chapter.
(b) Except as provided in subsection (c), as used in this chapter, "property" means an interest in intangible personal property, except an unliquidated claim, and all income or increment derived from the interest, including that which is referred to as or evidenced by:
(1) money, a check, a draft, a deposit, an interest, or a dividend;
(2) a credit balance, a customer overpayment, a gift certificate, a security deposit, a refund, a credit memorandum, an unpaid wage, an unused airline ticket, mineral proceeds, or an unidentified remittance;
(3) stock and other ownership interest in a business association;
(4) a bond, debenture, note, or other evidence of indebtedness;
(5) money deposited to redeem stocks, bonds, coupons, and other securities or to make distributions;
(6) an amount due and payable under the terms of an insurance policy; and
(7) an amount distributable 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.

(c) As used in this chapter, "property" does not include transactions between business entities and:
(1) a motor carrier (as defined in IC 8-2.1-17-10); or
(2) a carrier (as defined in 49 U.S.C. 13102(3)).

Sec. 19.
As used in this chapter, "utility" means a person that 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.

Sec. 20.

(a) For purposes of this section, an indication of interest in the property by the owner:
(1) does not include a communication with an owner by an agent of the holder who has not identified in writing the property to the owner; and
(2) includes the following:
(A) The cashing of a dividend check or other instrument of payment received or evidence that the distribution has been received if the distribution was made by electronic or similar means, with respect to an account or underlying shares of stock or other interest in a business association or financial organization.
(B) A deposit to or withdrawal from a bank account.
(C) The payment of a premium with respect to a property interest in an insurance policy.
(D) The mailing of any correspondence in writing from a financial institution to the owner, including:
(i) a statement;
(ii) a report of interest paid or credited; or
(iii) any other written advice; relating to a demand, savings, or matured time deposit account, including a deposit account that is automatically renewable, or any other account or other property the owner has with the financial institution if the correspondence is not returned to the financial institution for nondelivery.

(E) Any activity by the owner that concerns:
(i) another demand, savings, or matured time deposit account or other account that the owner has with a financial institution, including any activity by the owner that results in an increase or decrease in the amount of any other account; or
(ii) any other relationship with the financial institution, including the payment of any amounts due on a loan; if the mailing address for the owner contained in the financial institution's books and records is the same for both an inactive account and for a related account.

(b) The application of an automatic premium loan provision or other nonforfeiture provision contained in an insurance policy does not prevent the policy from maturing or terminating if the insured has died or the insured or the beneficiary of the policy otherwise has become entitled to the proceeds before the depletion of the cash surrender value of the policy by the application of those provisions.
(c) Property that is held, issued, or owed in the ordinary course of a holder's business is presumed abandoned if the owner or apparent owner has not communicated in writing with the holder concerning the property or has not otherwise given an indication of interest in the property during the following times:
(1) For traveler's checks, fifteen (15) years after issuance.
(2) For money orders, seven (7) years after issuance.
(3) For consumer credits, three (3) years after the credit becomes payable.
(4) For gift certificates, three (3) years after December 31 of the year in which the gift certificate was sold. If the gift certificate is redeemable in merchandise only, the amount abandoned is considered to be sixty percent (60%) of the certificate's face value.
(5) For amounts owed by an insurer on a life or an endowment insurance policy or an annuity contract:
(A) if the policy or contract has matured or terminated, three (3) years after the obligation to pay arose; or
(B) if the policy or contract is payable upon proof of death, three (3) years after the insured has attained, or would have attained if living, the limiting age under the mortality table on which the reserve is based.

(6) For property distributable by a business association in a course of dissolution, one (1) year after the property becomes distributable.
(7) Until January 1, 2002, for property or proceeds held by a court, ten (10) years after the property or proceeds become distributable. Beginning January 1, 2002, for property or proceeds held by a court or a court clerk, other than property or proceeds related to child support, five (5) years after the property or proceeds become distributable. The property or proceeds must be treated as unclaimed property under IC 32-9-8. Beginning January 1, 2002, for property or proceeds related to child support held by a court or a court clerk, ten (10) years after the property or proceeds become distributable.
(8) For property held by a state or other government, governmental subdivision or agency, or public corporation or other public authority, one (1) year after the property becomes distributable.
(9) For compensation for personal services, one (1) year after the compensation becomes payable.
(10) For deposits and refunds held for subscribers by utilities, one (1) year after the deposits or refunds became payable.
(11) For stock or other interest in a business association, five (5) years after the earlier of:
(A) the date of the last dividend, stock split, or other distribution unclaimed by the apparent owner; or
(B) the date of the second mailing of a statement of account or other notification or communication that was:
(i) returned as undeliverable; or
(ii) made after the holder discontinued mailings to the apparent owner.

(12) For property in an individual retirement account or another account or plan that is qualified for tax deferral under the Internal Revenue Code, three (3) years after the earliest of:
(A) the actual date of the distribution or attempted distribution;
(B) the distribution date as stated in the plan or trust agreement governing the plan; or
(C) the date specified in the Internal Revenue Code by which distribution must begin in order to avoid a tax penalty.

(13) For a demand, savings, or matured time deposit, including a deposit that is automatically renewable, five (5) years after maturity or five (5) years after the date of the last indication by the owner of interest in the property, whichever is earlier. Property that is automatically renewable is considered matured for purposes of this section upon the expiration of its initial period, unless the owner has consented to a renewal at or about the time of the renewal, and the consent is in writing or is evidenced by a memorandum or other record on file with the holder.
(14) For all other property, the earlier of five (5) years after:
(A) the owner's right to demand the property; or
(B) the obligation to pay or distribute the property; arose.

(d) Property is payable or distributed for purposes of this chapter notwithstanding the owner's failure to make demand or present an instrument or a document otherwise required to receive payment.

Sec. 21.
Subject to any other state statute to the contrary, property located in Indiana or another state is subject to the custody of this state as unclaimed property if the property is presumed abandoned and if:

(1) the last known address of the apparent owner, as shown on the records of the older, is in Indiana;
(2) the records of the holder do not reflect the identity of the person entitled to the property and it is established that the last known address of the person entitled to the property is in Indiana;
(3) the records of the holder do not reflect the last known address of the apparent owner and it is established that:
(A) the last known address of the person entitled to the property is in Indiana; or
(B) the holder is a domiciliary or a government or governmental subdivision or agency of this state and has not previously paid or delivered the property to the state of the last known address of the apparent owner or other person entitled to the property;

(4) the last known address of the apparent owner, as shown on the records of the holder, is in a state that does not provide for the escheat or custodial taking of the property and the holder is a domiciliary or a government or governmental subdivision or agency of this state;
(5) the last known address of the apparent owner, as shown on the records of the holder, is in a foreign country and the holder is a domiciliary or a government or governmental subdivision or agency of this state;
(6) the transaction out of which the property arose occurred in Indiana, the holder is a domiciliary of a state that does not provide for the escheat or custodial taking of the property, and the last known address of the apparent owner or other person entitled to the property is:
(A) unknown; or
(B) in a state that does not provide for the escheat or custodial taking of the property; or

(7) the property is a traveler's check or money order:
(A) purchased in Indiana; or
(B) for which the issuer of the traveler's check or money order has its principal place of business in Indiana and the issuer's records:
(i) do not show the state in which the instrument was purchased; or
(ii) show that the instrument was purchased in a state that does not provide for the escheat or custodial taking of the property.

Sec. 22.

(a) A holder may not deduct from property presumed abandoned a charge imposed by reason of the owner's failure to claim the property within a specified time unless:
(1) there is a valid and enforceable written contract between the holder and the owner that allows the holder to impose the charge; and
(2) the holder regularly imposes the charge, which is not regularly reversed or otherwise canceled.

(b) Whenever the holder under this section is a financial institution, the dormancy charges of the department of financial institutions apply.

Sec. 23.

(a) A record of the issuance of a check, draft, or similar instrument is prima facie evidence of an obligation.
(b) When the attorney general claims property from a holder who is also the issuer, the attorney general's burden of proof as to the existence and amount of the property and the abandonment of the property is satisfied by showing issuance of the instrument and passage of the requisite period of abandonment.
(c) The defenses of payment, satisfaction, discharge, or want of consideration are affirmative defenses that must be established by the holder.

Sec. 24.
All tangible and intangible property held in a safe deposit box or any other safekeeping depository in Indiana in the ordinary course of the holder's business and the proceeds resulting from the sale of the property permitted by other law, which remains unclaimed by the owner for more than five (5) years after expiration of the lease or rental period on the box or other depository, is presumed abandoned.

Sec. 25.
Any business association, banking organization, or financial institution organized under Indiana law or created in this state and undergoing voluntary dissolution shall file a notice of the voluntary dissolution with the attorney general not later than ten (10) days after the adoption of the resolution to dissolve by members or shareholders.

Sec. 26.

(a) A holder of property presumed abandoned and subject to custody as unclaimed property under this chapter shall report in writing to the attorney general concerning the property. Items of value of less than fifty dollars ($50) may be reported by the holder in the aggregate.
(b) For each item with a value of fifty dollars ($50) or more, the report required under subsection (a) must be verified and include the following:
(1) Except with respect to traveler's checks and money orders, the apparent owner's:
(A) name, if known;
(B) last known address, if any; and
(C) Social Security number or taxpayer identification number, if readily ascertainable.

(2) In the case of the contents of a safe deposit box or other safekeeping depository of tangible property:
(A) a description of the property;
(B) the place where the property is held and may be inspected by the attorney general; and
(C) any amounts owing to the holder.

(3) The date:
(A) the property became payable, demandable, or returnable; and
(B) of the last transaction with the apparent owner with respect to the property.

(4) Other information that the attorney general requires by rules adopted under IC 4-22-2 as necessary for the administration of this chapter.

(c) If a holder of property presumed abandoned and subject to custody as unclaimed property is a successor to another person who previously held the property for the apparent owner or if the holder has changed its name while holding the property, the holder shall file with the report the former names of the holder, if any, and the known names and addresses of all previous holders of the property.
(d) The report required by subsection (a) must be filed as follows:
(1) The report of a life insurance company must be filed before May 1 of each year for the calendar year preceding the year in which the report is filed.
(2) All other holders must file the report before November 1 of each year to cover the year preceding July 1 of the year in which the report is filed.

(e) The holder of property presumed abandoned and subject to custody as unclaimed property under this chapter shall send written notice to the apparent owner, not more than one hundred twenty (120) days or less than sixty (60) days before filing the report required by this section, stating that the holder is in possession of property subject to this chapter if:
(1) the holder has a record of an address for the apparent owner that the holder's records do not show as inaccurate;
(2) the claim of the apparent owner is not barred by the statute of limitations; and
(3) the value of the property is at least fifty dollars ($50).

(f) Before the date of filing the report the holder may request the attorney general to extend the time for filing the report. The attorney general may grant the extension upon a showing of good cause. The holder, upon receipt of the extension, may make an interim payment on the amount the holder estimates will ultimately be due, which will suspend the accrual of interest on the amount paid.
(g) The holder shall file with the report an affidavit stating that the holder has complied with this section.

Sec. 27.

(a) Except as provided in subsections (b) and (c), on the date a report is filed under section 26 of this chapter, the holder shall pay or deliver to the attorney general the property described in the report as unclaimed.
(b) In the case of an automatically renewable deposit, if at the time of delivery under subsection (a), 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 earliest date upon which a penalty or forfeiture would not result.
(c) Tangible property held in a safe deposit box or other safekeeping depository may not be delivered to the attorney general until one hundred twenty (120) days after the date the report describing the property under section 26 of this chapter is filed.
(d) If the property reported to the attorney general is a security or security entitlement under IC 26-1-8.1, the attorney general is an appropriate person to make an endorsement, instruction, or entitlement order on behalf of the apparent owner to invoke the duty of the issuer or its transfer agent or the securities intermediary to transfer or dispose of the security or the security entitlement in accordance with IC 26-1-8.1.
(e) If the holder of property reported to the attorney general is the issuer of a certificated security, the attorney general has the right to obtain a replacement certificate under IC 26-1-8.1-405, but an indemnity bond is not required.
(f) An issuer, the holder, and any transfer agent or other person acting under the instructions of and on behalf of the issuer in accordance with this section is not liable to the apparent owner and must be indemnified against the claims of any person in accordance with section 29 of this chapter.

Sec. 28.

(a) Except as provided in subsection (e), the attorney general shall cause a notice to be published not later than November 30 of the year immediately following the year in which unclaimed property has been paid or delivered to the attorney general.
(b) Except as provided in subsection (c), the notice required by subsection (a) must be published at least once each week for two (2) successive weeks in a newspaper of general circulation published in the county in Indiana of the last known address of any person named in the notice.
(c) If the holder does not report an address for the apparent owner, or reports an address outside Indiana, the notice must be published in the county in which the holder has its principal place of business within Indiana or such other county as the attorney general may reasonably select.
(d) The advertised notice required by this section must be in a form that, in the judgment of the attorney general, will attract the attention of the apparent owner of the unclaimed property and must contain the following information:
(1) The name of each person appearing to be an owner of property presumed abandoned, as set forth in the report filed by the holder.
(2) The last known address or location of each person appearing to be an owner of property presumed abandoned, if an address or a location is set forth in the report filed by the holder.
(3) A statement explaining that property of the owner is presumed to be abandoned and has been taken into the protective custody of the attorney general.
(4) A statement that information about the abandoned property and its return to the owner is available to a person having a legal or beneficial interest in the property, upon request to the attorney general.

(e) The attorney general is not required to publish the following in the notice:
(1) Any item of less than fifty dollars ($50) in value.
(2) Information concerning a traveler's check, money order, or similar instrument.

Sec. 29.

(a) For purposes of this section, payment or delivery is made in good faith if:
(1) payment or delivery was made in a reasonable attempt to comply with this chapter;
(2) the holder was not a fiduciary then in breach of trust with respect to the property and had a reasonable basis for believing, based on the facts then known, that the property was abandoned; and
(3) there is no showing that the records under which the delivery was made did not meet reasonable commercial standards of practice in the industry.

(b) Upon the payment or delivery of property to the attorney general, the state assumes custody and responsibility for the safekeeping of the property. A holder who pays or delivers property to the attorney general in good faith is relieved of all liability with respect to the property after the payment and delivery.
(c) A holder who has paid money to the attorney general under this chapter may later make payment to a person who, in the opinion of the holder, appears to be entitled to payment. The attorney general shall promptly reimburse the holder for the payment without imposing a fee or other charge when the holder files proof of payment and proof that the payee was entitled to the payment. If reimbursement is sought for a payment made on a negotiable instrument, including a traveler's check or money order, the holder must be reimbursed upon filing proof that the instrument was duly presented and that payment was made to a person who appeared to be entitled to payment. The holder must be reimbursed for payment made even if the payment was made to a person whose claim was barred under section 42 of this chapter.
(d) A holder who has delivered property, including a certificate of any interest in a business association, other than money to the attorney general under this chapter may reclaim the property if the property is still in the possession of the attorney general, without paying a fee or other charge, upon filing proof that the apparent owner has claimed the property from the holder.
(e) The attorney general may accept the holder's affidavit as sufficient proof of the holder's right to recover money and property under this section.
(f) If the holder pays or delivers property to the attorney general in good faith and later another person claims the property from the holder or another state claims the money or property under that state's laws relating to escheat or abandoned or unclaimed property, the attorney general, upon written notice of the claim, shall defend the holder against the claim and indemnify the holder against any liability on the claim.
(g) Property removed from a safe deposit box or other safekeeping depository is received by the attorney general subject to the holder's right to be reimbursed for the cost of the opening and reasonable expenses incurred in determining the current addresses of owners for whom the last previous address contained in the holder's records appears to be inaccurate. The property is subject to any valid lien or contract providing for the holder to be reimbursed for unpaid rent or storage charges. The attorney general shall reimburse or pay the holder out of the proceeds remaining after deducting the attorney general's cost of selling the property.

Sec. 30.
If property other than money is paid or delivered to the attorney general under this chapter, the owner is entitled to receive from the attorney general any dividends, interest, or other increments realized or accruing on the property at or before delivery to the attorney general. The owner is not entitled to receive dividends, interest, or other increments accruing after delivery of the property to the attorney general unless the property was paid or delivered under section 40(b) of this chapter.

Sec. 31.

(a) Except as provided in subsections (b) and (c), the attorney general, not later than three (3) years after the receipt of abandoned property, shall sell the property to the highest bidder at public sale in a city in Indiana that in the judgment of the attorney general affords the most favorable market for the property. The attorney general may decline the highest bid and reoffer the property for sale if in the judgment of the attorney general the bid is insufficient. If in the judgment of the attorney general the probable cost of sale exceeds the value of the property, the property need not be offered for sale. A sale held under this section must be preceded by one (1) publication of notice, at least three (3) weeks before the sale, in a newspaper of general circulation published in the county in which the property is to be sold.
(b) If the property is of a type that is customarily sold on a recognized market or that is subject to widely distributed standard price quotations, and if in the opinion of the attorney general the probable cost of a public sale to the highest bidder would:
(1) exceed the value of the property; or
(2) result in a net loss; the attorney general may sell the property privately, without notice by publication, at or above the prevailing price for the property at the time of sale.

(c) All securities shall be sold as soon as reasonably possible following receipt. If a valid claim is made for any securities in the possession of the attorney general, the attorney general may:
(1) transfer the securities to the claimant; or
(2) pay the claimant the value of the securities as of the date the securities were delivered to the attorney general.

Notice of the sale of securities is not required. Securities listed on an established stock exchange must be sold at prices prevailing at the time of sale on the stock exchange. Other securities may be sold over the counter at prices prevailing at the time of sale or by any other method the attorney general considers reasonable.

(d) A purchaser of property at a sale conducted by the attorney general under this chapter takes the property free of all claims of the owner or previous holder and of all persons claiming through or under them. The attorney general shall execute all documents necessary to complete the transfer of ownership.
(e) A person does not have a claim against the attorney general for any appreciation of property after the property is delivered to the attorney general, except in case of intentional misconduct or malfeasance by the attorney general.

Sec. 32.

(a) All money received by the attorney general under section 40(b) of this chapter shall be delivered to the treasurer of state for deposit in the property custody fund established under this section. Subject to any claim of the owner allowed by the attorney general under this chapter, the money shall be held in the property custody fund for safekeeping until the date the money is presumed abandoned under sections 20 and 24 of this chapter and transferred to the abandoned property fund as required by this section.
(b) On the publication date for the notice prescribed under section 28 of this chapter that follows the date on which the property is presumed to be abandoned, the attorney general shall publish the notice required under section 28 of this chapter. The notice shall specify the latest date the apparent owner may claim the property from the property custody fund. Notice must also be mailed to each person having a last known address listed in the report filed under section 26 of this chapter.
(c) Except as provided in subsection (d), not later than twenty-five (25) days after the date specified in the notice under subsection (b), the treasurer of state, upon order of the attorney general, shall transfer the principal of the property custody fund to the abandoned property fund created by section 33 of this chapter.
(d) The attorney general may allow a claim of the apparent owner before the principal of the property custody fund is transferred to the abandoned property fund under subsection (c). After the twenty-five (25) days have elapsed under subsection (c), the funds are considered abandoned property instead of property received under section 40(b) of this chapter for purposes of this chapter.

Sec. 33.

(a) Except as provided in section 32 of this chapter and subsection (b), money received by the attorney general under this chapter, including the proceeds from the sale of abandoned property under section 31 of this chapter, shall be transferred by the attorney general to the treasurer of state for deposit in the abandoned property fund established under this section.
(b) Money received under this chapter that was originally drawn from a fund under the control of a local unit of government shall be transferred to the fund from which the money was originally drawn.

Sec. 34.

(a) Except as provided in section 43(d) of this chapter, the treasurer of state shall, on order of the attorney general, pay the necessary costs of the following:
(1) Selling abandoned property.
(2) Mailing notices.
(3) Making publications required by this chapter.
(4) Paying other operating expenses and administrative expenses, including:
(A) salaries and wages reasonably incurred by the attorney general in the administration and enforcement of the provisions of this chapter; and
(B) costs incurred in examining records of holders of property and in collecting the property from holders.

(b) Whenever the balance of the principal of the abandoned property fund exceeds five hundred thousand dollars ($500,000), the treasurer of state may, and at least once each fiscal year shall, transfer to the common school fund of the state the balance of the principal of the abandoned property fund that exceeds five hundred thousand dollars ($500,000).
(c) If a claim is allowed or a refund is ordered under this chapter that is more than five hundred thousand dollars ($500,000), the treasurer of state shall transfer from the state general fund sufficient money to make prompt payment of the claim. There is appropriated sufficient money to the treasurer of state to implement this subsection.
(d) Before making a deposit into the abandoned property fund, the attorney general shall record the name and last known address of each person appearing from the holder's reports to be entitled to the abandoned property, and the name and last known address of each insured person or annuitant, and with respect to each policy or contract listed in the report of a life insurance company, its number, the name of the corporation, and the amount due.
(e) Except as provided in subsection (f), earnings on the property custody fund and the abandoned property fund shall be credited to each fund.
(f) On July 1 of each year, the interest balance in the property custody fund and the abandoned property fund shall be transferred to the state general fund.

Sec. 35.

(a) The treasurer of state shall keep safely the money in the property custody fund and the abandoned property fund, and the money shall not be transferred or assigned except as specifically authorized and directed in this chapter. At any time, upon certification of the attorney general and the treasurer of state that there is cash on deposit in either fund in excess of the cash requirements of the fund anticipated for the next succeeding semiannual fiscal period, the state board of finance may authorize the treasurer of state to invest and reinvest the money as authorized for other funds of the state by IC 5-13, including the purchase of certificates of deposit, provided that an investment shall not be made in a certificate of deposit with a maturity or redemption date that is more than six (6) months after the date of purchase, subscription, or deposit. Any interest or other accretions derived from investments made under this subsection become a part of the fund invested.
(b) Sufficient money from the abandoned property fund is appropriated to the treasurer of state to pay claims, costs, and expenses ordered paid from the abandoned property fund under this chapter, and sufficient money from the property custody fund is hereby appropriated to the treasurer of state to pay claims ordered paid from the property custody fund under this chapter.

Sec. 36.

(a) A person, not including another state, claiming an interest in property paid or delivered to the attorney general may file a claim on a form prescribed by the attorney general and verified by the claimant.
(b) Not later than ninety (90) days after a claim is filed, the attorney general shall:
(1) consider the claim; and
(2) give written notice to the claimant that the claim is granted or the claim is denied in whole or in part.

(c) Not later than thirty (30) days after a claim is allowed, the attorney general shall pay over or deliver to the claimant the property or the net proceeds of the sale of property if the property has been sold by the attorney general, together with any additional amount to which the claimant may be entitled under section 30 of this chapter.
(d) A holder who pays the owner for property that has been delivered to the state and that, if claimed from the attorney general by the owner, would be subject to an increment under section 30 of this chapter shall recover the amount of such increment from the attorney general.
(e) A person may file a claim under subsection (a) at any time within twenty- five (25) years after the date on which the property was first presumed abandoned under this chapter, notwithstanding the expiration of any other time specified by statute, contract, or court order during which an action or a proceeding may be commenced or enforced to obtain payment of a claim for money or recovery of property.

Sec. 37.

(a) At any time within twenty-five (25) years after the date on which the property was presumed abandoned under this chapter, notwithstanding the expiration of any other time specified by statute, contract, or court order during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or recovery of property, another state may recover the property if:
(1) the property was delivered to the custody of this state because the records of the holder did not reflect the last known address of the apparent owner when the property was presumed abandoned under this chapter, and:
(A) the other state establishes that the last known address of the apparent owner or other person entitled to the property was in that state; and
(B) under the laws of that state the property escheated to or was subject to a claim of abandonment by that state;

(2) the property was paid or delivered to the custody of this state because the laws of the other state did not provide for the escheat or custodial taking of the property, and under the laws of that state subsequently enacted the property has escheated to or become subject to a claim of abandonment by that state;
(3) the records of the holder did not accurately identify the owner of the property and:
(A) the last known address of the owner is in the other state; and
(B) under the laws of the other state the property escheated to or was subject to a claim of abandonment by that state;

(4) the property was subject to custody by this state under section 21(7) of this chapter and under the laws of the state of domicile of the holder the property has escheated to or become subject to a claim of abandonment by that state; or
(5) the property is a sum payable on a traveler's check, money order, or similar instrument that was delivered into the custody of this state under section 21(7) of this chapter, and:
(A) the instrument was purchased in the other state; and
(B) under the laws of the other state the property escheated to or is subject to a claim of abandonment by that state.

(b) A claim of another state to recover escheated or abandoned property must be presented in a form prescribed by the attorney general, who shall consider the claim and give written notice not more than ninety (90)days after the presentation of the claim to the other state that the claim is granted or denied in whole or in part. The attorney general shall allow the claim upon a determination that the other state is entitled to the abandoned property under subsection (a).
(c) The attorney general shall require another state, before recovering property under this section, to agree to indemnify this state and its officers and employees against any liability on a claim for the property.

Sec. 38.1.
A person:

(1) aggrieved by a decision of the attorney general; or
(2) whose claim has not been acted upon within ninety (90) days after its filing; under this chapter, may maintain an original action to establish the claim in a court with jurisdiction, naming the attorney general as a defendant.

Sec. 40.

(a) The attorney general may decline to receive property reported under this chapter that the attorney general considers to have a value less than the expenses of notice and sale.
(b) A holder, with the written consent of the attorney general and upon conditions and terms prescribed by the attorney general, may report and deliver property before the property is presumed abandoned. Property delivered under this subsection must be held by the attorney general as set forth under section 32 of this chapter, and is not presumed abandoned until the property otherwise would be presumed abandoned under this chapter.

Sec. 41.
If the attorney general determines after investigation that property delivered under this chapter has no substantial commercial value, the attorney general may destroy or otherwise dispose of the property at any time. An action or a proceeding may not be maintained against the state, an officer of the state, or the holder for or on account of any acts taken by the attorney general under this section, except for acts constituting intentional misconduct or malfeasance.

Sec. 42.

(a) The expiration, before or after July 1, 1996, of any time specified by contract, statute, or court order, during which a claim for money or property can be made or an action or a proceeding may be commenced or enforced to obtain payment of a claim for money or to recover property, does not preclude the money or property from being presumed abandoned or affect any duty to file a report or to pay or deliver abandoned property to the attorney general as required by this chapter.
(b) An action or a proceeding may not be commenced by the attorney general to enforce the provisions of this chapter more than ten (10) years after the holder either specifically reported the property to the attorney general or gave express notice to the attorney general of a dispute regarding the property. In the absence of a report the period of limitations is tolled. The period of limitations is also tolled by the filing of a false or fraudulent report.

Sec. 43.

(a) The attorney general may require a person who has not filed a report, or a person who the attorney general believes has filed an inaccurate, an incomplete, or a false report, to file a verified report in a form prescribed by the attorney general stating the following:
(1) Whether the person is holding any unclaimed property reportable or deliverable under this chapter.
(2) Describing any property not previously reported or as to which the attorney general has made inquiry.
(3) Specifically identifying and stating the amounts of property that may be in issue.

(b) The attorney general, at reasonable times and upon reasonable notice, may examine the records of a person to determine whether the person has complied with this chapter. The attorney general may conduct the examination even if the person believes the person is not in possession of any property reportable or deliverable under this chapter. When making an examination under this chapter the attorney general may retain attorneys, appraisers, independent actuaries, independent certified public accountants, or other professionals and specialists as examiners.
(c) The attorney general may examine the records of an agent, including a dividend disbursing agent or transfer agent, of a business association that is the holder of property presumed abandoned if the attorney general has given the notice required by subsection (b) to both the business association and the agent at least ninety (90) days before the examination.
(d) If an examination of the records of a person results in the disclosure of property reportable and deliverable under this chapter, the attorney general may assess the cost of the examination against the holder at the rate of two hundred dollars ($200) a day for each examiner. The cost of the examination made under subsection (c) may be imposed only against the business association.
(e) If a holder fails after July 1, 1996, to maintain the records required under section 44 of this chapter and the available records of the holder are insufficient to permit the preparation of a report, the attorney general may require the holder to report and pay such amounts as may reasonably be estimated from any available records of the holder or on the basis of any other reasonable estimating technique that the attorney general may select.

Sec. 44.

(a) Except as provided in subsection (b) and subject to rules adopted by the attorney general under IC 4-22-2, a holder required to file a report under section 26 of this chapter as to any property for which the holder has the last known address of the owner shall maintain a record of the information required to be in the report for at least ten (10) years after the property becomes reportable.
(b) A business association that sells in Indiana traveler's checks, money orders, or other similar written instruments, other than third-party bank checks on which the business association is directly liable, or that provides those instruments to others for sale in Indiana, shall maintain a record of outstanding instruments indicating the state and date of issue for at least three (3) years after the date the property is reportable.

Sec. 45.
The attorney general may maintain an action in a court of competent jurisdiction to enforce this chapter.

Sec. 46.

(a) The attorney general may enter into agreements with other states to exchange information relating to unclaimed property or the possible existence of unclaimed property. The agreements may permit other states, or a person acting on behalf of a state, to examine records as authorized in section 43 of this chapter. The attorney general may by rule require the reporting of information needed to enable compliance with agreements made under this section and prescribe the form.
(b) The attorney general may join with other states to seek enforcement of this chapter against a person who is or may be holding property reportable under this chapter.
(c) At the request of another state, the attorney general may commence an action on behalf of the administrator of the other state to enforce in Indiana the unclaimed property laws of the other state against a holder of property subject to escheat or a claim of abandonment by the other state, if the other state has agreed to pay expenses incurred by the attorney general in maintaining the action.
(d) The attorney general may request that the attorney general of another state or any other attorney commence an action on behalf of the attorney general in another state. The attorney general may retain another attorney to commence an action in Indiana on behalf of the attorney general. This state shall pay all expenses including attorney's fees in maintaining an action under this subsection. With the attorney general's approval, the expenses and attorney's fees may be paid from money received under this chapter. The attorney general may agree to pay the person bringing the action attorney's fees based in whole or in part on a percentage of the value of any property recovered in the action. Expenses or attorney's fees paid under this subsection may not be deducted from the amount that is subject to the claim by the owner under this chapter.
(e) Documents and working papers obtained or compiled by the attorney general or the attorney general's agents, employees, or designated representatives in the course of conducting an audit under section 43 of this chapter are confidential and are not public records except:
(1) when used by the attorney general to maintain an action to collect unclaimed property or otherwise enforce this chapter;
(2) when used in joint audits conducted with or under agreements with other states, the federal government, or other governmental entities; or
(3) pursuant to subpoena or court order. The documents and working papers may be disclosed to the abandoned property office of another state for that state's use in circumstances equivalent to those described in this subsection if the other state is bound to keep the documents and papers confidential.

(f) The attorney general's final completed audit reports are public records, available for inspection and copying under IC 5-14-3. A final report may not contain confidential documentation or working papers unless an exception under subsection (e) applies.

Sec. 47.

(a) A holder that fails to pay or deliver the property within the time required by this chapter shall pay to the attorney general interest for the time the holder is delinquent at the following rates:
(1) The annual interest rate for a period of one (1) year or less after the time required by this chapter for payment or delivery of the property is:
(A) the one (1) year Treasury Bill rate published in the Wall Street Journal or its successor on the third Tuesday of the month the remittance was due; plus
(B) one (1) percentage point.

(2) The interest rate for each year after the time set forth in subdivision (1) is:
(A) the one (1) year Treasury Bill rate published in the Wall Street Journal or its successor on the third Tuesday of the immediately preceding anniversary month and year; plus
(B) one (1) percentage point.

For purposes of this subdivision, anniversary month and year means the anniversary of the date the property was due to be paid or delivered under this chapter.

(b) A holder who fails to render any report or perform other duties required under this chapter shall pay a civil penalty of one hundred dollars ($100) for each day for the first fifteen (15) days that the report is withheld or the duty not performed. Thereafter the holder shall pay a civil penalty the greater of:
(1) one hundred dollars ($100) a day for each additional day, not to exceed five thousand dollars ($5,000); or
(2) ten percent (10%) of the value of the property at issue not to exceed five thousand dollars ($5,000). Upon a showing by the holder of good cause sufficient in the discretion of the attorney general to excuse the failure, the attorney general may waive the penalty in whole or in part.

(c) A holder who knowingly or intentionally fails to pay or deliver property to the attorney general as required under this chapter shall pay additionally a civil penalty equal to ten percent (10%) of the value of the property that must be paid or delivered under this chapter. If the attorney general believes it is in the best interests for the administration of this chapter, the attorney general may waive the penalty in whole or in part.
(d) A holder who willfully refuses after written demand by the attorney general, to pay or deliver property to the attorney general as required under this chapter commits a Class B misdemeanor.

Sec. 48.

(a) An agreement by an owner, the primary purpose of which is to pay compensation to locate, deliver, recover, or assist in the recovery of property presumed abandoned under this chapter that is entered into not earlier than the date the property was presumed abandoned and not later than twenty-four (24) months after the date the property is paid or delivered to the attorney general is void and unenforceable. This subsection does not apply to an owner's agreement with an attorney to file a claim as to identified property or to contest the attorney general's denial of a claim.
(b) An agreement by an owner, the primary purpose of which is to locate, deliver, recover, or assist in the recovery of property, is valid only if:
(1) the fee or compensation agreed upon is not more than ten percent (10%) of the amount collected unless the amount collected is fifty dollars ($50) or less;
(2) the agreement is in writing;
(3) the agreement is signed by the apparent owner;
(4) the agreement clearly sets forth:
(A) the nature and value of the property; and
(B) the value of the apparent owner's share after the fee or compensation has been deducted; and

(5) the agreement contains the provision set forth in subsection (d).


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02/01/2007 - Category: Real Property - State: IN #1260

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