Agenda June 25,2013 CLERK, BOARD OF SUPERVISORS Honorable Board of Supervisors County of Alameda 1221 Oak Street Oakland CA 94612 Dear Board Members: June 12,2013 SUBJECT: Claims for Excess Proceeds - 2010 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 2010, 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. Steve Lieba 22-346-20 B. Georgina Lieba 22-346-20 C. Rose Lieba for the Estate of Mark Lieba 22-346-20 D. Rose Lieba 22-346-20 E. Selina, Michael & Gabriel Lieba 22-346-20 F. Gary R. Lieberman, Esq 22-346-20 DISCUSSION/SUMMARY The Tax Collector conducted sales of tax defaulted properties in 2010. 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.
Honorable Board of Supervisors May 7,2013 FINANCING: There is no impact on the General Fund. Excess proceeds claims are paid from funds held in trust. CP/db P:\LegalHO\bdltr_6_25_13 Cheryl Pe ins Assistant Clerk, Board of Supervisors Attachments: Notice of Decision; Excess Proceeds Distribution; cc: County Counsel Auditor-Controller Tax Collector Claimant File SUSAN S. MURANISHI, County Administrator CHERYL PERKINS, Asst. Clerk of the Board 1221 Oak Street, Room 536, Oakland, California 94612, (510) 208-4949, Fax: (510) 208-9660
Attachment A DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAMEDA APPLICANT: STEVE F. L1EBA PARCEL: 22-346-20 FILE NO: EP March 2010 Tax Sale HEARING DATE: April 18, 2013 AGENDA NUMBER: EIGHT HEARING OFFICER: JED SOrvlIT, Esq. FACTS: There are 10 Claims for Excess Proceeds filed for the excess proceeds from the tax default sale of this parcel on the March, 2010 auction. Nine of the claims are by or on behalf of persons named "Lieba". The assessee of the parcel at the time of sale was "Steve Lieba and/or Mark R. Lieba (or heirs)". Because of the number of Claims, only the analysis relevant to a particular Claim for Excess Proceeds, and the general procedural history, will be included in this Decision on a specific Claim. Steve Lieba filed a Claim for Excess Proceeds on March 31, 2011, stating that he "owned a one-sixth interest" in the subject property. John T. Seyman and Jessica G. Williams, Deputy County Counsels, provided a Memorandum on behalf of the Office of County Counsel analyzing the Claims for Excess Proceeds. The Memorandum notes that the tax deed to the purchaser was recorded on May 21, 2010. The Memorandum concludes that all Claims were filed timely. All Claims lack a documentary basis for the claim under County Counsel's HEARING OFFICER DECISION Page 1
analysis of the filed Claims. Additional papers were received from Gary R. Lieberman and Campbell Law Offices immediately before and at the hearing. Of relevance to this Claim is a Quitclaim deed recorded with the Alameda County Recorder on September 29, 1989, granting an undivided 1/6th interest in the parcel to "Steve F. Lieba". John Seyman, Deputy County Counsel appeared at the hearing for the County. Also appearing were Gary Lieberman, Esq., and Philip Campbell, Esq., for clients who had filed claims. Claimants Selena Lieba, Michael Lieba, and Rose Lieba also appeared and participated. Rose appeared individually and also as Executor for Mark Lieba's estate. The Hearing Office allowed all claimants until May 13, 2013.. at 5:00 p.m. to file any additi,onal document to support his or her claim or any assignment. Except for materials timely submitted under that allowance, the matter was deemed submitted. DECISION: The Claim for Excess Proceeds of Steve Lieba is GRANTED as to 116th of the excess proceeds. The check should be made payable to "Steve F. Lieba" and sent to him at II HEARING OFFICER DECISION Page 2
RATIONALE: Revenue & Taxation Code 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by Section 4675; if not claimed within one year, the remaining amount shall be distributed as provided in Section 4673.1 (b), after deduction of administrative costs. 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 priority. (2) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser." The Claim filed on March 31, 2011, is timely. R&T Code section 4675(d) requires that the Claim contain "any information and proof deemed necessary by the board of supervisors to establish the claimant's rights to all or any portion of the excess proceeds." The Hearing Officer interprets that section to include all information presented until the matter is deemed submitted. HEARING OFFICER DECISION Page 3
Here, Steve Lieba's individual ownership of a 1/6th interest in the parcel is established by the Quitclaim Deed recorded September 29, 1989. This establishes him as a party of standing of the second priority. There were no claimants of the first priority. A claimant is entitled to only the share of the excess proceeds corresponding to the claimant's ownership interest (assuming no claims of a higher priority), even when the other owner fails to file a claim for the excess proceeds. First Corporation, Inc. v. County of Santa Clara (1983) 146 CA3d 841. Thus Steve Lieba is entitled to 1/6th of the proceeds, whether or not the remainder of the excess proceeds are distributed as a result of approved Claims. Dated: May 28, 2013 ~~-,\...- Jed Somit, Esq. Hearing Officer HEARING OFFICER DECISION Page 4
DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAMEDA APPLICANT: GEORGINA L1EBA PARCEL: 22-346-20 FILE NO: EP March 2010 Tax Sale HEARING DATE: April 18,2013 AGENDA NUMBER: NINE HEARING OFFICER: JED SOMIT, Esq. FACTS: There are 10 Claims for Excess Proceeds filed for the excess proceeds from the tax default sale of this parcel on the March, 2010 auction. Nine of the claims are by or on behalf of persons named "Lieba". The assessee of the parcel at the time of sale was "Steve Lieba and/or Mark R. Lieba (or heirs)". Because of the number of Claims, only the analysis relevant to a particular Claim for Excess Proceeds, and the general procedural history, will be included in this Decision on a specific Claim. Georgina Lieba filed a Claim for Excess Proceeds on March 31, 2011, stating that she "owned a one-sixth interest" in the subject property. John T. Seyman and Jessica G. Williams, Deputy County Counsels, provided a Memorandum on behalf of the Office of County Counsel analyzing the Claims for Excess Proceeds. The Memorandum notes that the tax deed to the purchaser was recorded on May 21, 2010. The Memorandum concludes that all Claims were filed timely. All Claims lack a documentary basis for the claim under County Counsel's HEARING OFFICER DECISION Page 1
analysis of the filed Claims. Additional papers were received from Gary R. Lieberman and Campbell Law Offices immediately before and at the hearing. Of relevance to this Claim is a Quitclaim deed recorded with the Alameda County Recorder on September 29, 1989, granting an undivided 116th interest in the parcel to "Georgina A. Lieba". John Seyman, Deputy County Counsel appeared at the hearing for the County. Also appearing were Gary Lieberman, Esq., and Philip Campbell, Esq., for clients who had filed claims. Claimants Selena Lieba, Michael Lieba, and Rose Lieba also appeared and participated. Rose appeared individually and also as Executor for Mark Lieba's estate. The Hearing Office allowed all claimants until May 13, 2013... at 5 :00 p.m. to file any additional document to support his or her claim or any assignment. Except for materials timely submitted under that allowance, the matter was deemed submitted. DECISION: The Claim for Excess Proceeds of Georgina Lieba is GRANTED as to 1/6th of the excess proceeds. The check should be made payable to "Georgina A. Lieba" and sent to her at II HEARING OFFICER DECISION Page 2
RATIONALE: Revenue & Taxation Code 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by Section 4675; if not claimed within one year, the remaining amount shall be distributed as provided in Section 4673.1 (b), after deduction of administrative costs. 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 priority. (2) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser." The Claim filed on March 31, 2011, is timely. R&T Code section 4675(d) requires that the Claim contain "any information and proof deemed necessary by the board of supervisors to establish the claimant's rights to all or any portion of the excess proceeds." The Hearing Officer interprets that section to include all information presented until the matter is deemed submitted. HEARING OFFICER DECISION Page 3
Here, Georgina's individual ownership of a 116th interest in the parcel is established by the Quitclaim Deed recorded September 29, 1989. This establishes her as a party of standing of the second priority. There were no claimants of the first priority. A claimant is entitled to only the share of the excess proceeds corresponding to the claimant's ownership interest (assuming no claims of a higher priority), even when the other owner fails to file a claim for the excess proceeds. First Corporation, Inc. v. County of Santa Clara (1 983) 146 CA3d 841. Thus Georgina Lieba is entitled to 1/6th of the proceeds, whether or not the remainder of the excess proceeds are distributed as a result of approved Claims. Dated: May 28,2013 Jed Somit, Esq. Hearing Officer HEARING OFFICER DECISION Page 4
DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAMEDA APPLICANT: ROSE L1EBA, as ADMINISTRATOR OF THE ESTATE OF MARK L1EBA PARCEL: 22-346-20 FILE NO: EP March 2010 Tax Sale HEARING DATE: April 18, 2013 AGENDA NUMBER: NINE HEARING OFFICER: JED SOMIT, Esq. FACTS: There are 10 Claims for Excess Proceeds filed for the excess proceeds from the tax default sale of this parcel on the March, 2010 auction. Nine of the claims are by or on behalf of persons named "Lieba". The assessee of the parcel at the time of sale was "Steve Lieba and/or Mark R. Lieba (or heirs)". Because of the number of Claims, only the analysis relevant to a particular Claim for Excess Proceeds, and the general procedural history, will be included in this Decision on a specific Claim. Initially, Rose Lieba filed a Claim on March 28, 2011, stating that she is "an heir to Estate of Mark R. Lieba and executor of Estate". John T. Seyman and Jessica G. Williams, Deputy County Counsels, provided a Memorandum on behalf of the Office of County Counsel analyzing the Claims for Excess Proceeds. The Memorandum notes that the tax deed to the purchaser was recorded on May 21, 2010. The Memorandum concludes that all Claims were filed timely. All Claims lack a documentary basis for the claim under County Counsel's HEARING OFFICER DECISION Page 1
analysis of the filed Claims. Additional papers were received from Gary R. Lieberman and Campbell Law_ Offices immediately before and at the hearing. I john Seyman, Deputy County Counsel, appeared at the hearing for the County. Also appearing were Gary Lieberman, Esq., and Philip Campbell, Esq., for clients who had filed claims. Claimants Selena Lieba, Michael Lieba, and Rose Lieba also appeared and participated. Rose appeared individually and also as Executor for Mark Lieba's estate. The Hearing Office allowed all claimants until May 13, 2013 at 5:00 p.m. to file any additional document to support his or her claim or any assignment. Except for materials timely submitted under that allowance, the matter was deemed submitted. Additional information was received from claimant's attorney, Phillip C. Campbell, shortly before the hearing. This information included a Quitclaim Deed filed September 29, 1989, granting inter alia a 1/6th interest in the parcel to Mark R. Lieba. A Certificate of Death for Mark Randolph Lieba was also provided, establishing his death on April 26, 2000. Finally, an Order for Probate dated September 26, 2006, in Alameda Superior Court No. RP06283016, appointing Rose A. Lieba as Administrator, was included. Some additional papers were timely received after the hearing, but are not relevant to this particular Claim for Excess Proceeds. HEARING OFFICER DECISION Page 2
DECISION: The Claim for Excess Proceeds of Rose A. Lieba as Administrator of the Estate of Mark Lieba is GRANTED as to a 1/6th share of the excess proceeds. The check shall be made payable to lithe Estate of Mark R. Lieba" and sent to Campbell Law Offices. RATIONALE: Revenue & Taxation Code 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by Section 4675; if not claimed within one year, the remaining amount shall be distributed as provided in Section 4673.1 (b), after deduction of administrative costs. 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. The Claim for Excess Proceeds was timely filed. 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 priority. (2) Second, any person with title of record to all or any HEARING OFFICER DECISION Page 3
portion of the property prior to the recordation of the tax deed to the purchaser." R&T Code section.4675(d) requires that the Claim contain liany information and proof deemed necessary by the board of supervisors to establish the claimant's rights to all or any portion of the excess proceeds." The Hearing Officer interprets that section to include all information presented until the matter is deemed submitted. Here, the ownership interest of the Administrator's decedent, Mark Randolph Lieba, is established by the 1989 Quitclaim Deed, Rose's right to collect the excess proceeds for his share is established by the 2006 Order for Probate. There were no claimants of the first priority. A claimant is entitled to only the share of the excess proceeds corresponding to the claimant's ownership interest (assuming no claims of a higher priority), even when the other owner fails to file a claim for the excess proceeds. First Corporation, Inc. v. County of Santa Clara (1983) 146 CA3d 841. Thus the Administrator is entitled to 1/6th of the proceeds, whether or not the remainder of the excess proceeds are distributed as a result of approved Claims. Dated: May 28,2013 Jed Somit, Esq. Hearing Officer / HEARING OFFICER DECISION Page 4
DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAMEDA APPLICANT: ROSE L1EBA, Individually PARCEL: 22-346-20 FILE NO: EP March 2010 Tax Sale HEARING DATE: April 18, 2013 AGENDA NUIVIBER: NINE HEARING OFFICER: JED SOIVlIT, Esq. FACTS: There are 10 Claims for Excess Proceeds filed for the excess proceeds from the tax default sale of this parcel on the March, 2010 auction. Nine of the claims are by or on behalf of persons named "Lieba". The assessee of the parcel at the time of sale was "Steve Lieba and/or Mark R. Lieba (or heirs)". Because of the number of Claims, only the analysis relevant to a particular Claim for Excess Proceeds, and the general procedural history, willbe included in this Decision on a specific Claim. Initially, Rose Lieba filed a Claim on March 28, 2011, stating that she is "an heir to Estate of Mark R. Lieba and executor of Estate". (The Claim on behalf of the Estate of Mark R. Lieba was granted in a separate decision.) John T. Seyman and Jessica G. Williams, Deputy County Counsels provide~ a Memorandum on behalf of the Office of County Counsel analyzing the Claims for Excess Proceeds. The Memorandum notes that the tax deed to the purchaser was recorded on May 21,2010. The Memorandum concludes that all Claims were filed timely. All HEARING OFFICER DECISION Page 1
Claims lack a documentary basis for the claim under County Counsel's analysis of the filed Claims. Additional papers were received from Gary R. Lieberman and Campbell Law Offices immediately before and at the hearing. John Seyman, Deputy County Counsel appeared at the hearing for the County. Also appearing were Gary Lieberman, Esq't and Philip Campbell, Esq., for clients who had filed claims. Claimants Selena Lieba, Michael Lieba, and Rose Lieba also appeared and participated. Rose appeared individually and also as Executor for Mark Lieba's estate. Among the arguments at the hearing, Mr. Campbell noted that the initial Claim submitted by Rose Lieba mentioned only her status as Executor. She and Mr. Campbell noted she had resubmitted her Claim only a few days prior to the hearing to clarify that she was also claiming personally. The request was that the Hearing Officer treat the new filing as an amendment to the original Claim rather than an untimely new Claim. Additional information was received from claimant's attorney, Phillip C. Campbell, shortly before the hearing. This information included a Quitclaim Deed filed September 29, 1989, granting inter alia a 1/6th interest in the parcel to Rose A. Lieba. Among the Exhibits received at the hearing is a Claim for Excess Proceeds dated April 17, 2013, claiming a 1/6th portion as an owner. HEARING OFFICER DECISION Page 2
The Hearing Office allowed all claimants until May 13, 2013 at 5:00 p.m. to file any additional document to support his or her claim or any assignment. Except for materials timely submitted under that allowance, the matter was deemed submitted.. DECISION: The Claim for Excess Proceeds of Rose A. 'Lieba is GRANTED as to 116th of the excess proceeds. The check should be made payable to "Rose A. Lieba" and sent to her at.. RATIONALE: Revenue & Taxation Code 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by Section 4675; if not claimed within one year, the remaining amount shall be distributed as provided in Section 4673.1 (b), after deduction of administrative costs. 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 HEARING OFFICER DECISION Page 3
and their order of priority are: (1) First, lienholders of record prior to the recordation of the tax deed to the purchaser in the order of their priority. (2) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser." The first and primary issue here is whether there is a timely Claim for Excess Proceeds. The Claim dated April 17, 2013, cannot be considered timely as it was filed well beyond a year after recordation of the deed to the purchaser at the tax default sale, a point conceded by Mr. Campbell when he requested that it be treated as an amendment to Rose Lieba's original Claim. The original Claim for Excess Proceeds stated that claimant was "heir to Estate of Mark R. Lieba and executor of [his] Estate". That Claim was timely filed (the County Counsel's Memorandum did not consider the later filed Claim, as it was written prior to that filing). However, another Claim for Excess Proceeds, clearly identifying that it was filed for the Estate of Mark Lieba, was filed by Campbell Law Offices on March 29, 2011 (also timely). The Claim filed by Rose A. Lieba is signed by her without indication of a representative capacity. The Hearing Officer speculates that her Claim was filed on advice of Campbell Law Offices that they would file a Claim for the Estate, but she should file individually. The wording of the Claim suggests a lack of legal advice or review. It appears that the legal distinction between a Claim on behalf of Mark Lieba's Estate, and one for herself personally, was not grasped by Rose Lieba. HEARING OFFICER DECISION Page 4
If the recently filed Claim is not treated as an amendment to the earlier Claim, clarifying that it was on behalf of Rose individually, then, under the statute governing excess proceeds, the excess proceeds covered by that Claim (Rose's percentage of ownership of the parcel) would be distributed to various public entities, rather than to the former owners or their family. The various public agencies have already been reimbursed for all of their missed taxes, and received the charges allowable under the Revenue & Taxation Code. There was no delay or confusion occasioned by the amendment in the processing of the Claims for Excess Proceeds, nor does any other proper claimant receive any less if Rose's individual Claim is recognized. Under these circumstances, the Hearing Officer will treat the recently filed Claim as a clarification of the March 28, 2011 Claim. R&T Code section 4675(d) requires that the Claim contain "any information and proof deemed necessary by the board of supervisors to establish the claimant's rights to all or any portion of the excess proceeds." The Hearing Officer interprets that section to include all information presented until the matter is deemed submitted. Here, Rose's individual ownership of a 116th interest in the parcel is established by the Quitclaim Deed recorded September 29, 1989. This establishes her as a party of standing of the second priority. There were no claimants of the first priority. II HEARING OFFICER DECISION Page 5
A claimant is entitled to only the share of the excess proceeds corresponding to the claimant's ownership interest (assuming no claims of a higher priority), even when the other owner fails to file a claim for the excess proceeds. First Corporation, Inc. v. County of Santa Clara (1983) 146 CA3d 841. Thus Rose A. Lieba is entitled to 1/6th of the proceeds, whether or not the remainder of the excess proceeds are distributed as a result of approved Claims. Dated: May 28, 2013 ~~-s-,-----... Jed Somit, Esq. Hearing Officer HEARING OFFICER DECISION Page 6
DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAMEDA GA~n'sl APPLICANT: SELINA L1EBA, MICHAEL L1EBA and SeLINA L1EBA PARCEL: 22-346-20 FILE NO: EP March 2010 Tax Sale HEARING DATE: April 18, 2013 AGENDA NUMBER: FIVE, ELEVEN and TWELVE HEARING OFFICER:..lED SOMIT, Esq. FACTS: There are 10 Claims for Excess Proceeds filed for the excess proceeds from the tax default sale of this parcel on the March, 2010 auction. Nine of the claims are by or on behalf of persons named "Lieba". The assessee of the parcel at the time of sale was "Steve Lieba andlor Mark R. Lieba (or heirs)". Only information relevant to the particular Claims considered in this Decision, and the general procedural background of the matter, will be reviewed in this Decision. Selina Lieba, in a Claim for Excess Proceeds filed March 31, 2011, claims 116th of the excess proceeds, stating that she owned a 1/27th interest in the property. This Claim was supported only by a California Drivers License. Michael Lieba filed a Claim for Excess Proceeds on March 31, 2011, claiming 1/6th of the excess proceeds, and explaining that he owned a 1/27th interest in the property and requesting "excess proceeds in... proportion to the total excess proceeds..." This Claim was supported only by a California Drivers License. II HEARING OFFICER DECISION Page 1
Gabriel Lieba filed a Claim for Excess Proceeds on March 31, 2011, claiming 1I6th of the excess proceeds, based on owning 1/27th of the party. This Claim was supported only by a California Drivers License. John T. Seyman and Jessica G. Williams, Deputy County Counsels, provided a Memorandum on behalf of the Office of County Counsel analyzing the Claims for Excess Proceeds. The Memorandum notes that the tax deed to the purchaser was recorded on May 21, 2010. The Memorandum concludes that all Claims were filed timely. All Claims lack a documentary basis for the claim. Additional papers were received from Gary R. Lieberman and Campbell Law Offices immediately before and at the hearing. Of relevance to the current Claims were: a) a Quitclaim Deed recorded September 29, 1989, granting a 1/6th interest in the parcel to Michael E. Lieba (not the "Michael Lieba" who is a claimant); and, b) an Order Determining Succession to Real Property issued in the Estate of Michael E. Lieba, Alameda Superior Court No. RP06302436, recorded with the Alameda County Recorder on May 8, 2007, as document 2007179399, which identifies the parcel as one of the real properties whose succession is determined; the distribution stated is: 1118th to Diana Lieba, and 2/9th of 1/6th, or 1/27th to each of Gabriel E. Lieba, Michael E. Lieba and Selina R. Lieba, the three claimants here. John Seyman, Deputy County Counsel, appeared at the hearing for the County. Also appearing were Gary Lieberman, Esq., and Philip Campbell, Esq., for clients who had filed claims. Claimants Selena Lieba, Michael Lieba and Rose Lieba HEARING OFFICER DECISION Page 2
also appeared and participated. Rose appeared individually and also as Executor for Mark Lieba's estate. Philip Campbell stated he believed (with the filing right before the hearing) that all documents have been provided except documents establishing the authority of the heirs of Diana Lieba to receive through her; these claimants are Michael, Selena and Gabriel Lieba. He notes there is a recorded Order Determining Succession to Real Property in Michael Lieba's Estate giving those same heirs a 1/27th interest each. Diana had a 1/18 (113 of 1/6) overall interest, and these children each received 113 of that. The Hearing Officer allowed all claimants until May 13, 2013, at 5:00 p.m. to file any additional document to support his or her claim or any assignment. Except for materials timely submitted under that allowance, the matter is deemed submitted. Taking advantage of the allowance to file additional documentation, the claimants here, through Campbell Law Offices, timely filed a letter with two exhibits. The letter from Phillip Campbell dated April 30, 2013, explained that Diana Lieba had died intestate, leaving the three claimants as her intestate heirs. The letter also claims that Campbell Law Offices is entitled to $1,935 from the funds awarded to these claimants. Two exhibits were attached to the letter: a) a Certificate of Death of Diana Lieba, establishing her death on August 28, 2010 (after the recordation of the deed HEARING OFFICER DECISION Page 3
to the purchaser at the tax default sale); and, b) an Affidavit under California Probate Code sections 13100-13106, stating that the claimants here constitute the successors of the decedent as defined in Probate Code section 13051, and demanding that the excess proceeds she would have received be paid "to the undersigned under the provisions of California Probate Code Section 13100." The Affidavit also directs that $1,935 be paid to Campbell Law Offices from the excess proceeds. DECISION: The Claims for Excess Proceeds of Gabriel Lieba, Michael Lieba and Selina Lieba are GRANTED with respect to 116th (total) of the excess proceeds. The check shall be made payable to "Gabriel E. Lieba and Michael E. Lieba and Selina R. Lieba" and sent to them clo Campbell Law Offices. RATIONALE: A. Analysis of Claims for Excess Proceeds. Revenue & Taxation Code 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by section 4675; if not claimed within one year, the remaining amount shall be distributed as provided in section 4673.1 (b), after deduction of administrative costs. II HEARING OFFICER DECISION Page 4
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. All the Claims for Excess Proceeds considered in this decision were timely filed. R&T Code section 4675(d) requires that the Claim contain "any information and proof deemed necessary by the board of supervisors to establish the claimant's rights to all or any portion of the excess proceeds." The Hearing Officer interprets this provision to allow consideration of all information presented until the matter is. deemed submitted. 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 priority. (2) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser." There were no claimants of the first priority. All of the current Claims are based upon ownership. The Order Determining Succession, which was recorded, includes confirmation of a 1/18th (1/3 of 1/6) ownership interest to Diana Lieba, as well as confirmation of a 1/27th interest to each claimant. Each claimant also claims a 1/3 interest in Diana's portion, but that succession was never recorded. HEARING OFFICER DECISION Page 5
That does not end the inquiry. 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." A proper Probate Code section 13100 Affidavit was submitted here after the hearing. The cover letter of April 30, 2013 from Phillip Campbell states that Diana "died intestate leaving three children and no spouse." Under Probate Code 6402(a), the children, as "issue", take equally in this situation. A claimant is entitled to only the share of the excess proceeds corresponding to the claimant's ownership interest (assuming no claims of a higher priority), even when any other owner fails to file a claim for the excess proceeds. First Corporation, Inc. v. County of Santa Clara (1983) 146 CA3d 841. Thus, these three children share 1/6th of the excess proceeds (succeeding to the interest of Michael Lieba under the 1989 Quitclaim Deed) no matter what decision is made concerning the Claims for Excess Proceeds filed by other claimants. B. Analysis of Direction to Pay Campbell Law Offices $1,935.00. R&T Code section 4675(b) states in part: "After the property has been sold, a party of interest in the property at the time of the sale may assign his or her right to claim the excess proceeds only by a dated, written instrument that explicitly HEARING OFFICER DECISION Page 6
states that the right to claim the excess proceeds is being assigned, and only after each party to the proposed assignment has disclosed to each other party to the proposed assignment all facts of which he or she is aware relating to the value of the right that is being assigned. Any attempted assignment that does not comply with these requirements shall have no effect..." Section 4675(c) adds further requirements for assignment: "Any person or entity who in any way acts on behalf of, or in place of, any party of interest with respect to filing a claim for any excess proceeds shall submit proof with the claim that the amount of excess proceeds has been disclosed to the party of interest and that the party of interest has been advised of his or her right to file a claim for the excess proceeds on his or her own behalf." The only document supporting the directive in the April 30, 2013 cover letter to pay $1,935.00 of the excess proceeds awarded to claimants to Campbell Law Offices is the Probate Code section 13100 Affidavit. That Affidavit does have a clear and explicit instruction to pay Campbell Law Offices $1,935.00 from the excess proceeds. This is sufficient to bring the situation within subsections (b) and (c). However, the Affidavit does not on its face show that each party has disclosed to the other all facts concerning the value of the right being assigned (although the amount of $1,935 is obvious). The directive to pay Campbell Law Offices is also inconsistent with the statement in paragraph 5 of the Affidavit that all of the excess proceeds encompassed by the Affidavit (Diana's share) shall be paid lito the HEARING OFFICER DECISION Page 7
undersigned". Further, although admittedly somewhat nonsensical under the circumstances since the claimants did file their own Claims for Excess Proceeds, there is no statement that the claimants were advised of that right. The restrictions on assignment are meant to protect the parties in interest. The statute is clear that the burden is on the benefitted non-party in interest assignee to comply fully with the statute. The Hearing Officer does not find full technical satisfaction of the requirements, and thus concludes that the directive to pay Campbell Law Offices "shall have no effect". However, there is no reason to believe that Campbell Law Offices acted improperly; in fact, it appears that it assisted the claimants in perfecting their Claims. The last communication for claimants, containing the document vital to granting their Claims, came from that law office. Therefore, the check payable to claimants for the excess proceeds is to be sent to Campbell Law Offices, to allow claimants and Campbell Law Offices to discuss the situation further to reach an equitable outcome. There is no reason to believe that Campbell Law Offices would withhold the check to pressure claimants in any way. Dated: May 28, 2013 ed Somit, Esq. Hearing Officer HEARING OFFICER DECISION Page 8
DECISION OF ASSESSMENT HEARING OFFICER COUNTY OF ALAIVIEDA APPLICANT: CARMEN L1EBA BY GARY LIEBERMAN, Esq. PARCEL: 22-346-20 FILE NO: EP March 2010 Tax Sale HEARING DATE: April 18, 2013 AGENDA NUMBER: THREE HEARING OFFICER: JED SOMIT, Esq. FACTS: There are 10 Claims for Excess Proceeds filed for the excess proceeds from the tax default sale of this parcel on the March, 2010 auction. Nine of the claims are by or on behalf of persons named "Lieba". The assessee of the parcel at the time of sale was "Steve Lieba andlor Mark R. Lieba (or heirs)". Due to the number of Claims, only the facts relevant to the specific Claim under review, and the procedural history of the matter, will be recited in this decision. The Claim at issue here is that of Gary Lieberman, Esq., then of the Law Offices of McCarty & Lieberman, on behalf of Carmen Lieba. The Claim for Excess Proceeds was filed on May 12, 2010, claiming 1/6th of the excess proceeds. This Claim is based upon an asserted 1/6th ownership interest in Carmen Lieba at the time of the tax default auction sale. The attorney asserts a contractual lien against this interest and demands that no funds should be paid to the client without his prior written consent, or his being named a co-payee on the check. There is a HEARING OFFICER DECISION Page 1
statement that he has disclosed to his client the amount of the excess proceeds and that the client has a rjght to file for the excess proceeds herself. This Claim is supported by a Durable Power of Attorney in favor of Gary R. Lieberman, which is specific to her interest in the parcel at issue. The Power of Attorney is dated January 20, 2008, prior to the tax sale, and does not expressly identify applying for excess proceeds from a tax default sale as among the powers of the attorney in fact. A Stipulation for Transfer of Real Property is stated to be attached to the Claim as Exhibit S, and a Grant Deed, recorded 6/4/08 as Instrument NO. 2008178110 in Alameda County Recorder is stated to be attached as Exhibit C, but neither document was attached to the Claim in the Hearing Officer's file. (This was rectified later.) John T. Seyman and Jessica G. Williams, Deputy County Counsels, provided a Memorandum on behalf of the Office of County Counsel analyzing the Claims for Excess Proceeds. The Memorandum notes that the tax deed to the purchaser was recorded on May 21, 2010. The Memorandum concludes that all Claims were filed timely but that all Claims lack a documentary basis for the claim. The Claim on behalf of Carmen Lieba by Mr. Lieberman, beyond lacking any documentary support establishing that Carmen Lieba is a party of interest, additionally has no valid assignment to the attorney, since, inter alia, the Power of Attorney was signed two years before the property was sold although Revenue & Taxation Code section HEARING OFFICER DECISION Page 2
4675(b) requires execution of an assignment after the property has been sold. Additional papers were received from Gary R. Lieberman and Campbell Law Offices immediately before and at the hearing. Of relevance to this Claim were: a) a Quitclaim Deed recorded September 29, 1989, which inter alia grants a 116th interest in the real property to John W. Lieba; b) a Judgment Settling First and Final Account and Report of Administrator... and for Final Distribution filed on March 11, 1992, in the Estate of John W. Lieba, Alameda County Superior Court No. 237045-3, and recorded with the Alameda County Recorder as document 92074808, which Judgment distributes to Steve F. Lieba and Rose A. Lieba, as Guardians of the Estate of Carmen Lieba, a minor (and the decedent's only child), John's 1/6th interest in the subject property; c) a Grant Deed dated August 3, 2006, recorded with the Alameda County Recorder on June 4, 2008, by which the Guardians of the Estate of Carmen Lieba grant the undivided 1/6th interest to Carmen Lieba (again recording the 1992 Judgment as an attachment); and, d) a Stipulation dated September 28, 2006, in Alameda Superior Court No. RP06267900 by which the Guardians state they deliver the Grant Deed to Carmen through her attorney. John Seyman, Deputy County Counsel, appeared for the County at the hearing. Also appearing were Gary Lieberman, Esq, and Philip Campbell, Esq., for clients who had filed claims. Claimants Selena Lieba, Michael Lieba, and Rose Lieba also appeared and participated. Rose appeared individually and also as HEARING OFFICER DECISION Page 3
Executor for Mark Lieba's estate. Gary Lieberman stated that there was clear evidence that his client Carmen. Lieba was a party in interest; he also felt there was a valid assignment to him. However, if the assignment to him were found to be invalid, he requested that the Hearing Officer recognize and grant the underlying Claim for Excess Proceeds. The Hearing Office allowed all claimants until May 13, 2013 at 5:00 p.m. to file any additional document to support his or her claim or any assignment. Except for materials timely submitted under that allowance, the matter was deemed submitted. This claimant timely submitted additional materials. The new document was an Assignment of Right to Claim Excess Proceeds, dated May 7, 2013, stating that Carmen Lieba assigns "all of my rightto claim the excess proceeds... to my Attorney, Gary R. Lieberman..." The Assignment states that Mr. Lieberman has disclosed to Carmen "all facts of which he is aware relating to the value of the right being assigned" and names the value as $26,473.00. DECISION: The Claim for Excess Proceeds of Carmen Lieba is GRANTED as to a 116th interest in the excess proceeds. The check shall be made out to "Gary R. Lieberman" and sent to him at HEARING OFFICER DECISION Page 4
RATIONALE: A. Analysis of the Claim for Excess Proceeds. Revenue & Taxation Code 4674 directs the application of excess proceeds from the sale of tax defaulted property as provided by section 4675; if not claimed within one year, the remaining amount shall be distributed as provided in section 4673.1 (b), after deduction of administrative costs. 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. The Claim for Excess Proceeds filed on May 12, 2010 was timely filed. R&T Code section 4675(d) requires that the Claim contain " any information and proof deemed necessary by the board of supervisors to establish the claimant's rights to all or any portion of the excess proceeds." The Hearing Officer interprets that requirement to encompass all information received before the matter is submitted. 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 priority. (2) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser." HEARING OFFICER DECISION Page 5
There were no claimants of the first priority. Carmen Lieba's status as a party of interest of the second priority as to a 1/6th ownership interest is established by the 1989 Quitclaim Deed granting her father a 1/6th interest, and the court orders and subsequent recorded deeds by which she became an owner of record in 2008 of that 116th interest. A claimant is entitled to only the share of the excess proceeds corresponding to the claimant's ownership interest (assuming no claims of a higher priority), even when the other owner fails to file a claim for the excess proceeds. First Corporation, Inc. v. County of Santa Clara (1983) 146 CA3d 841. Thus, Carmen is entitled only to a 116th interest in the excess proceeds, without consideration of whether all of the remainder of the excess proceeds are distributed under other granted Claims. B. Analysis of Lien for A ttorney's Fees and Costs. The statutory provision governing excess proceeds pays special attention to assignments and other transfers of the right to receive excess proceeds, with the clear intention of protecting the parties in interest. The Hearing Officer does not treat representation by an attorney, when the funds will go to the party in interest, as invoking these requirements, but does treat any other situation in which the excess proceeds are redirected from a party of interest as requiring examination. Thus, any invalidity in the Notice of Lien, or in the demand that the excess proceeds be paid to the attorney, will not invalidate the status of Carmen Lieba as a HEARING OFFICER DECISION Page 6
party of interest as recognized above, but may prevent the assignment from being given force. Section 4675(b) provides: "After the property has been sold, a party of interest in the property at the time of the sale may assign his or her right to claim the excess proceeds only by a dated, written instrument that explicitly states that the right to claim the excess proceeds is being assigned, and only after each party to the proposed assignment has disclosed to each other party to the proposed assignment all facts of which he or she is aware relating to the value of the right that is being assigned. Any attempted assignment that does not comply with these requirements shall have no effect... II Section 4675(c) adds further requirements for assignment: "Any person or entity who in any way acts on behalf of, or in place of, any party of interest with respect to filing a claim for any excess proceeds shall submit proof with the claim that the amount of excess proceeds has been disclosed to the party of interest and that the party of interest has been advised of his or her right to file a claim for the excess proceeds on his or her own behalf." As recognized by the Memorandum of the Office of County Counsel, the Durable Power of Attorney for Management of Property cannot be treated as a valid assignment of the right to receive the excess proceeds. It was dated prior to the sale, and does not contain the required disclosures (the purported Exhibit D, a letter to Carmen, would not cure that deficiency). HEARING OFFICER DECISION Page 7
The Assignment of Right to Claim Excess Proceeds is a dated and signed written instrument which explicitly states that the right to claim excess proceeds is being assigned. There is a statement that Gary Lieberman has disclosed to Carmen Lieba all facts of which he is aware relating to the value of the property, but no statement that a similar disclosure by Carmen to her attorney has occurred, as required by the "each party to the proposed assignment" language. The amount of excess proceeds is shown to be disclosed in the Assignment, but the Assignment does not contain proof that Carmen Lieba was advised of her right to file the Claim herself. That latter requirement, however, was satisfied by an earlier letter to Carmen. The issue becomes whether the lack of a representation by Carmen that she disclosed all facts of which she was aware concerning the value of the Claim to her attorney is sufficient to disallow the Assignment. In some cases, where the assignee does not have a prior relationship to the relevant transactions, the party in interest must certainly disclose all of the facts of which she is aware, or the assignee may lack knowledge of other claims which would vitiate the assigned claim. Here, it appears that the attorney was integral to the transactions by which Carmen became a party of interest, and the potential for unfairness is slight. In light of the recently signed document directing the excess proceeds to be released to Mr. Lieberman, the fact that he is an attorney and Carmen will have remedies with the State Bar if his charges are improper, and the Assignment's compliance of the other requirements, the Assignment will be recognized. HEARING OFFICER DECISION Page 8
The Hearing Officer, of course, has no power to approve or disapprove the attorney's fees, and nothing in this Decision should be taken as so doing. Mr. Lieberman is directed to provide a copy of this Decision to Carmen Lieba. Dated: June 3,2013 ;:_7~~-. Jed So mit, Esq. Hearing Officer HEARING OFFICER DECISION Page 9
Honorable Board of Supervisors 13 MENTB Excess Proceeds Distribution From Tax Defaulted Pro e Claimant I Parcel Number Amount Wa t 30 day before pay ent Steve Lieba 22-346-20 $ 28,350.00 Yes Georgina Lieba 22-346-20 $ 28,350.00 Yes The Estate of Mark R. Lieba 22-346-20 $ 28,350.00 C/O Campbell Law Offices Attn: Phillip Campbell Yes Rose Lieba 22-346-20 $ 28,350.00 Yes Selina Lieba, Michael Lieba & 22-346-20 $ 28,350.00/each Yes Gabriel Lieba Gary Lieberman 22-346-20 $ 28,350.00 Yes