What can I do legally to sell property that we were never paid for moving?
Full Question:
Our licensed and bonded moving company moved a man (John Doe) from Austin to San Antonio. The move price was based on inventory submitted by 'John Doe' and bid by the company, but upon arrival the guy had 2-3 times more inventory. He wanted the additional amount also loaded and delivered to San Antonio the next day. When the crew arrived to unload, 'John Doe' said that he spoke to the owner of the company and rescheduled for two days later. Eventually the crew was able to start unloading that day and asked for payment (credit card information) before the trailer was completely unloaded. Upon request for payment 'John Doe' hung up the phone and has not communicated directly with the company since. He texted several times saying his phone was not working right. We have called many times to no avail. He told the people at the storage place in San Antonio (where some of his stuff was unloaded) that he paid us. We have the remainder of his inventory and need to sell it to recoup our losses. What do we legally do to sell the inventory abandoned by this individual?
04/28/2009 |
Category: Abandoned Property |
State: Texas |
#16275
Answer:
When a person who is not a landlord agrees to hold property for another, a bailment is created. When the person holding the property, called the bailee, is not being compensated, it is called a gratutous bailment and the bailee must use reasonable care to protect the property.
There are different types of bailments- "bailments for hire" in which the custodian (bailee) is paid, "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible. There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation. When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence. To create a bailment, the alleged bailee must have actual physical control with the intent to possess. Physical control and intent to possess will be interpreted according to the expectations of the parties. If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.” For example, courts are more likely to find a bailment of a car exists in a garage with an attendant than in a park and lock garage.
In order to dispose of abandoned property, notice must be served on the property owner so he has an opportunity to respond to the claim. Such notices typically require the owner to pay amounts due by a stated date and advised that the property may be sold if payment isn't received by such date. I suggest calling the local police department, as requirements for notices of abandoned property vary by local area.
The following are TX statutes:
§ 72.101 PROP. PROP. Personal Property Presumed
Abandoned
(a) Except as provided by this section and Sections 72.1015, 72.1016,
and 72.102, personal property is presumed abandoned if, for longer than
three years:
(1) the existence and location of the owner of the property is unknown
to the holder of the property; and
(2) according to the knowledge and records of the holder of the
property, a claim to the property has not been asserted or an act of
ownership of the property has not been exercised.
(b)
(1) The three-year period leading to a presumption of abandonment of
stock or another intangible ownership interest in a business
association, the existence of which is evidenced by records available to
the association, commences on the first date that either a sum payable as
a result of the ownership interest is unclaimed by the owner or a
communication to the owner is returned undelivered by the United States
Postal Service.
(2) The running of the three-year period of abandonment ceases
immediately on the exercise of an act of ownership interest or sum
payable or a communication with the association as evidenced by a
memorandum or other record on file with the association or its agents.
(3) At the time an ownership is presumed abandoned under this section,
any sum then held for interest or owing to the owner as a result of the
interest and not previously presumed abandoned is presumed abandoned.
(4) Any stock or other intangible ownership interest enrolled in a plan
that provides for the automatic reinvestment of dividends,
distributions, or other sums payable as a result of the ownership
interest is subject to the presumption of abandonment as provided by this
section.
(c) Property distributable in the course of a demutualization or
related reorganization of an insurance company is presumed abandoned on
the first anniversary of the date the property becomes distributable if,
at the time of the first distribution, the last known address of the
owner according to the records of the holder of the property is known to
be incorrect or the distribution or statements related to the
distribution are returned by the post office as undeliverable and the
owner has not:
(1) communicated in writing with the holder of the property or the
holder's agent regarding the interest; or
(2) otherwise communicated with the holder regarding the interest as
evidenced by a memorandum or other record on file with the holder or its
agents.
(d) Property distributable in the course of a demutualization or
related reorganization of an insurance company that is not subject to
Subsection (c) is presumed abandoned as otherwise provided by this
section.
§ 72.103 PROP. PROP. Preservation of Property
Notwithstanding any other provision of this title except a provision of
this section or Section 72.1016 relating to a money order or a stored
value card, a holder of abandoned property shall preserve the property
and may not at any time, by any procedure, including a deduction for
service, maintenance, or other charge, transfer or convert to the profits
or assets of the holder or otherwise reduce the value of the property.
For purposes of this section, value is determined as of the date of the
last transaction or contact concerning the property, except that in the
case of a money order, value is determined as of the date the property is
presumed abandoned under Section 72.102(c). If a holder imposes service,
maintenance, or other charges on a money order prior to the time of
presumed abandonment, such charges may not exceed the amount of 50 cents
per month for each month the money order remains uncashed prior to the
month in which the money order is presumed abandoned.
§ 683.011 TRANSP. Authority to Take Abandoned Motor Vehicle into Custody
(a) A law enforcement agency may take into custody an abandoned motor
vehicle, watercraft, or outboard motor found on public or private
property.
(b) A law enforcement agency may use agency personnel, equipment, and
facilities or contract for other personnel, equipment, and facilities to
remove, preserve, store, send notice regarding, and dispose of an
abandoned motor vehicle, watercraft, or outboard motor taken into custody
by the agency under this subchapter.
§ 74.101 PROP. Property Report
(a) Each holder who on June 30 holds property that is presumed
abandoned under Chapter 72, 73, or 75 of this code or under Chapter 154,
Finance Code, shall file a report of that property on or before the
following November 1. The comptroller may require the report to be in a
particular format, including a format that can be read by a computer.
(b) Repealed by Acts 1999, 76th Leg., ch. 1208, § 5, eff. Sept. 1,
1999.
(c) The property report must include:
(1) the name and social security number, if known, and the last known
address, if any, of each person who, from the records of the holder of
the property, appears to be the owner of the property, or the name and
address, if known, of any person who is entitled to the property;
(2) a description of the property, the identification number, if any,
and, if appropriate, a balance of each account, except as provided by
Subsection (d);
(3) the date that the property became payable, demandable, or
returnable;
(4) the date of the last transaction with the owner concerning the
property; and
(5) other information that the comptroller by rule requires to be
disclosed as necessary for the administration of this chapter.
(d) Amounts due that individually are less than $50 may be reported in
the aggregate without furnishing any of the information required by
Subsection (c).
§ 74.102 PROP. Signed Statement
(a) The person preparing a property report shall provide with each copy
of the report a statement signed by:
(1) the individual holding the reported property;
(2) a partner, if the holder is a partnership;
(3) an officer, if the holder is an unincorporated association or a
private corporation; or
(4) the chief fiscal officer, if the holder is a public corporation.
(b) The statement must include the following sentence:
"This report contains a full and complete list of all property held by
the undersigned that, from the knowledge and records of the undersigned,
is abandoned under the laws of the State of Texas."
(c) The comptroller may adopt rules or policies relating to the
signature requirement, as the comptroller determines appropriate, to
maximize the use of future developments in electronic filing technology.
§ 74.103 PROP. Retention of Records
(a) A holder required to file a property report under Section 74.101
shall keep a record of:
(1) the name, the social security number, if known, and the last known
address of each person who, from the records of the holder of the
property, appears to be the owner of the property;
(2) a brief description of the property, including the identification
number, if any; and
(3) the balance of each account, if appropriate.
(b) The record must be kept for 10 years from the date on which the
property is reportable, regardless of whether the property is reported in
the aggregate under Section 74.101.
(c) The comptroller may by rule provide for a shorter period for
keeping a record required by this section.
(d) The comptroller may determine the liability of a holder required to
file a property report under Section 74.101 using the best information
available to the comptroller if the records of the holder are unavailable
or incomplete for any portion of the required retention period.
§ 74.201 PROP. Required Notice
(a) Except as provided by Section 74.202, the comptroller may use one
or more methods as necessary to provide the most efficient and effective
notice to each reported owner in the calendar year immediately following
the year in which the report required by Section 74.101 is filed. The
notice must be provided:
(1) in the county of the property owner's last known address; or
(2) in the county in which the holder has its principal place of
business or its registered office for service in this state, if the
property owner's last address is unknown.
(b) The notice must state that the reported property is presumed
abandoned and subject to this chapter and must contain:
(1) the name and city of last known address of the reported owner;
(2) a statement that, by inquiry, any person possessing a legal or
beneficial interest in the reported property may obtain information
concerning the amount and description of the property; and
(3) a statement that the person may present proof of the claim and
establish the person's right to receive the property.
(c) Deleted by Acts 1997, 75th Leg., ch. 1037, § 21, eff. Sept. 1,
1997.
(d) The comptroller may offer for sale space for suitable
advertisements in a notice published under this section.
§ 74.203 PROP. Authorized Notice
(a) During the calendar year immediately following the year in which
the report required by Section 74.101 is filed, notice may be mailed to
each person who has been reported with a Texas address and appears to be
entitled to the reported property.
(b) The notice under Subsection (a) must conform to the requirements
for notice under Section 74.201(b).
§ 74.301 PROP. Delivery of Property to Comptroller
(a) Except as provided by Subsection (c), each holder who on June 30
holds property that is presumed abandoned under Chapter 72, 73, or 75
shall deliver the property to the comptroller on or before the following
November 1 accompanied by the report required to be filed under
Section 74.101.
(b) If the property subject to delivery under Subsection (a) is stock
or some other intangible ownership interest in a business association for
which there is no evidence of ownership, the holder shall issue a
duplicate certificate or other evidence of ownership to the comptroller
at the time delivery is required under this section.
(c) If the property subject to delivery under Subsection (a) is the
contents of a safe deposit box, the comptroller may instruct a holder to
deliver the property on a specified date before November 1 of the
following year.
§ 74.401 PROP. Sale of Property
(a) Except as provided by Subsection (c) or Section 74.404, the
comptroller shall sell at public sale all personal property, other than
money and marketable securities, delivered to the comptroller in
accordance with Section 74.301. The comptroller shall conduct the sale in
the city in this state that the comptroller determines affords the most
favorable market for the particular property.
(b) The comptroller shall sell the property to the highest bidder. If
the comptroller determines that the highest bid is insufficient, the
comptroller may decline that bid and offer the property for public or
private sale.
§ 74.501 PROP. PROP. Claim Filed With Comptroller
(a) The comptroller shall review the validity of each claim filed under
this section.
(b) If the comptroller determines that a claim is valid, the
comptroller or the comptroller's authorized agent shall approve the
claim. If the claim is for money and has been approved under this
section, the comptroller shall pay the claim. If a claim is for personal
property other than money and has been approved under this section, the
comptroller shall deliver the property to the claimant unless the
comptroller has sold the property. If the property has been sold under
Section 74.401, the comptroller shall pay to the claimant the proceeds
from the sale.
(c) All claims to which this section applies must be filed in
accordance with procedures, contain the information, and be on forms
prescribed by the comptroller.
(d) On receipt of a claim form and all necessary documentation and as
may be appropriate under the circumstances, the comptroller may approve
the claim of:
(1) the reported owner of the property;
(2) if the reported owner died testate:
(A) the appropriate legal beneficiaries of the owner as provided by the
last will and testament of the owner that has been accepted into probate
or filed as a muniment of title; or
(B) the executor of the owner's last will and testament who holds
current letters testamentary;
(3) if the reported owner died intestate:
(A) the legal heirs of the owner as provided by Section 38, Texas
Probate Code; or
(B) the court-appointed administrator of the owner's estate;
(4) the legal heirs of the reported owner as established by an
affidavit of heirship order signed by a judge of the county probate court
or by a county judge;
(5) if the reported owner is a minor child or an adult who has been
adjudged incompetent by a court of law, the parent or legal guardian of
the child or adult;
(6) if the reported owner is a corporation:
(A) the president or chair of the board of directors of the
corporation, on behalf of the corporation; or
(B) any person who has legal authority to act on behalf of the
corporation;
(7) if the reported owner is a corporation that has been dissolved or
liquidated:
(A) the sole surviving shareholder of the corporation, if there is only
one surviving shareholder;
(B) the surviving shareholders of the corporation in proportion to
their ownership of the corporation, if there is more than one surviving
shareholder;
(C) the corporation's bankruptcy trustee; or
(D) the court-ordered receiver for the corporation; or
(8) any other person that is entitled to receive the unclaimed property
under other law or comptroller policy.
(e) Except as provided by Subsection (f), the comptroller may not pay
to the following persons a claim to which this section applies:
(1) a creditor, a judgment creditor, a lienholder, or an assignee of
the reported owner or of the owner's heirs; or
(2) a person holding a power of attorney from the reported owner or the
owner's heirs.
(f) The comptroller may approve a claim for child support arrearages
owed by the reported owner of the property and reflected in a child
support lien notice that complies with Section 157.313, Family Code. A
claim under this subsection may be submitted by the lienholder or the
attorney general on behalf of the lienholder.
