date of death appraisal

[curlyq]

Jurisdiction

California

My mom owned a house as trustee with me as secondary trustee. She died in 2/24. THE house is 100% mine now.

1. DO I need to get a Date of Death appraisal? I do not plan to sell, but a local real estate agent who came by to chat, presumably to talk me into selling, said that the DATE of DEATH appraisal should be completed immediately and a tax form with the estimated value of the HOUSE sent to the IRS and CALIFORNIA FTB. I can see the IRS wanting to know, but the FTB shocked me.

2. What is the form #?

3. Do I really send it immediately after completion to the IRS and/or FTB or do I keep it in MY POSSESSION until I sell, if ever?

4. I can see the importance of an appraisal because I will get a stepped up value that is based on the worth of the house at the DATE of my mom's death. I then can sell for the appraised amount + my $250,000 exclusion, as I have lived in the house continuously for 63 years and still live in it, and not owe FED or state capital gains taxes, right?


Thanks.

 

[Tax Counsel]

1. DO I need to get a Date of Death appraisal? I do not plan to sell, but a local real estate agent who came by to chat, presumably to talk me into selling, said that the DATE of DEATH appraisal should be completed immediately and a tax form with the estimated value of the HOUSE sent to the IRS and CALIFORNIA FTB. I can see the IRS wanting to know, but the FTB shocked me.

Real estate agents are generally a poor source of reliable tax information. Their expertise is primarily in the area of sales, not tax or real estate law.

The first issue is what kind of trust this was. If it was a revocable living trust (which is how most trusts established for estate plannning are done) then when she died the tax basis of the property becomes the fair market value of it the day she died. Getting an appraisal relatively close to the date of death is the best evidence for you to have to support your claim as to what the value was on that date. As the taxpayer, you bear the burden of proving if the IRS examines that issue on the return when you sell the property. So keep that appraisal somewhere where it will safe and readily accessible when you need it. However, there is no form to send to the IRS now to establish the basis. You deal with that in the tax year you sell the home. CA income tax largely mirrors the federal income tax rules and I'd be very surprised if the FTB required reporting of basis in the year of her death as the FTB typically relies on the IRS determination of that in the year of sale.

In short, getting the appraisal and keeping it until you sell or otherwise dispose of the property is a good thing to establish your basis in your property. But there isn't any federal tax requirement to get one and certainly no form you must fill out and send to the IRS for that. I also doubt very much that the state requires that.

If the estate filed any tax returns with the IRS or FTB in which the value of the home had to be reported (e.g. estate tax or inheritance tax returns) you want that information, too, and the value should be relatively close to what the appraisal comes up with that.

The appraisal will also help if you need to challenge the determination of value for property taxes. The property tax assessor's appraisal of value (if a reappraisal was done around the time of death) would be another good record to get a copy of and keep for when you dispose of the property. The more documentation of the value to establish basis as of the date of death the better footing you'll have should the IRS or FTB audit you on that issue in the year the home is sold or otherwise disposed of.

If the trust is not a revocable living trust then the rule for establishing basis may be different.

It would be a good idea for you to meet with a tax professional (enrolled agent, tax CPA, or tax attorney) to go over the facts to determine what reporting may be needed now and what records you need to keep for the future.

 

[adjusterjack]

An advantage of getting it done now is that years or decades from now it is likely to be much more costly hiring someone to piece together historical information.

 

[zddoodah]

My mom owned a house as trustee with me as secondary trustee. She died in 2/24. THE house is 100% mine now.

Are you sure? How is it titled? If she "owned [the] house as trustee," I assume that means it was titled to "[your mother's name], as Trustee of [name of the trust]." Is that right? If not, please explain what you meant when you wrote that she "owned [the] house as trustee."

I assume your reference to yourself as "secondary trustee" meant that you were the successor trustee (and that you became trustee upon your mother's death). Correct?

If both of those things are correct, have you transferred title to yourself in the last three months? If not, why do you think the "house is 100% [yours] now"?

I defer to "Tax Counsel" on the taxation issues.

 

[curlyq]

THANKS for all of the replies. Mr. zddoodah, THE REVOCABLE trust for the house was written as the 'MY MOM's NAME trust dated October 11, 2022' and the house registration was changed at the LA county reg/recorder's office to that effect on the next day. NOTHING else, such as bank accounts, is in the trust.

The trust doc also says that my mom is 1. the settlor, 2. the original trustee, and 3. the primary trustee. I am the only successor trustee.

The estate NEVER filed any tax returns with the IRS or FTB in which the value of the home had to be reported (e.g. estate tax or inheritance tax returns). THE value of the estate was far less than the IRS's limit of $13,610,000. THE estate never file any tax returns, PERIOD, as it never made money, except for the appreciation of the house from 10/22 to 2/24, but that is only on paper.

I have not completed the docs for the reg/recorder or the county assessor in 3 months. I figured, perhaps incorrectly, that the house was automatically mine, as nobody can contest it, and that the transferral was a formality that is necessary only if 1. I plan to sell, or 2. I want to ensure that somebody of my choice gets it if I die without a will. IF I am wrong, then I certainly will go to the Reg/recorder posthaste with the necessary docs, as I do not want to lose my right to the house.

From MR Tax Counsel's reply, the Date OF DEATH appraisal is necessary to substantiate the fair market value of the house and the tax basis in case I decide to sell or give the house to somebody. THE sooner that I get such an appraisal, the cheaper and easier the process likely will be. I will keep the appraisal that I obtain in a safe place, as the IRS DOES NOT Need or Want it NOW and no specific TAX FORM exists for recording it.

I guess that my main orders of business NOW are 1. to go to the REG/recorder to PUT the house in my name--if I cannot CONTINUE to keep it in the name of my mom's trust--and 2. to get a Date of Death appraisal by a LICENSED real estate appraiser. To confess, I have been somewhat reluctant to change the title at the reg/recorder's office because the house was owned by my mom/her trust for 63 years and the tax basis is so low that I do not want to complete a form incorrectly and have it reassessed at $1 mil rather than $70k, as my yearly property bill would then rise from $1000 to $10k!!

 

[adjusterjack]

Here's a couple of articles regarding the effects of Proposition 19 on inherited homes. Looks like you'll be facing a fairly large reassessment after all.

How CA Prop 19 Radically Alters Property Taxes for Inherited Homes - Talbot Law Group, P.C.

If you own a property, you’re likely very familiar with the concept (and payment) of property taxes. Property taxes are due annually when you own a piece of real property (land/building) and are generally based on the assessed value of your property at the time you bought it, plus adjustments...

talbotlawpc.com

Prop 19 and how it impacts inherited property for California residents — Financial Alternatives

Prop 19 has significant impact for residents of the state of California who are looking to pass on property as an inheritance.

www.financialalternatives.com

 

[welkin]

I have been somewhat reluctant to change the title at the reg/recorder's office because the house was owned by my mom/her trust for 63 years and the tax basis is so low that I do not want to complete a form incorrectly and have it reassessed at $1 mil rather than $70k, as my yearly property bill would then rise from $1000 to $10k!!

I agree with you. I would kick the can down the road until you either sell the house or you will it to someone else and you pass away.

A day of death appraisal in the future (when you sell/if you sell) will not change the value of the house on the day of death. Certified appraisals are done by comparing market prices of comparable properties in the neighborhood where the house is. That is all searchable many years later and appraisers rarely actually inspect the property other than to take pictures of the outside of the property. So, it really doesn't matter when the appraisal for step up value is done.

The appraisal will also help if you need to challenge the determination of value for property taxes. The property tax assessor's appraisal of value (if a reappraisal was done around the time of death) would be another good record to get a copy of and keep for when you dispose of the property.

Appraisals for property taxes are a far cry from fair market value in most cases. The minute a reassessment is done, the market price can go up or down and then the tax rates are adjusted, not the sale price or value. All of that can also be determined years later from the tax records.

In CA, Propositions 58 and 193 and 19 exempt the following from reassessment on inherited property:

• Transfers of primary residences (no value limit)
• Transfers of the first $1 million of real property other than the primary residences. The $1 million exclusion applies separately to each eligible transferor.
• Transfers may be result of a sale, gift, or inheritance. A transfer via a trust also qualifies for this exclusion. For property tax purposes, we look through the trust to the present beneficial owner. When the present beneficial ownership passes from a parent to a child, this is a change in ownership that is eligible for the parent-child exclusion.

You may want to read https://codes.findlaw.com/ca/revenue-and-taxation-code/rtc-sect-63-1/
or speak with an attorney.

I would add that if you choose to wait, that you keep copious records as to any capital improvements you make to the property.

 

[curlyq]

THANKS, adjusterjack and welkin for the answers and the links to the articles. 2 questions popped into my head as I read the articles.


1. The articles mentioned PROP 19 reassessment and ways to keep the low tax basis upon TRANSFER of real PROPERTY. IF I do not change the reg/title at the reg\recorder's office, then I guess that I am not TRANSFERRING THE TITLE TO myself and I am keeping the house in the name of MY LATE mom's trust; furthermore, I am avoiding reassessment. IS that legal?

2. The articles mentioned that an inheritor must "MAINTAIN the HOUSE as his primary residence to qualify for the PROP 19 exclusion." I have heard that issue mentioned in the news for 4 years now, so I am familiar with it. I have lived in the house for 63 consecutive years with no plan to move and therefore it is my primary and only residence. WILL the LA county assessor suddenly ask me, come NOVEMBER when the property tax bills are issued, to prove that the house is my primary residence?

3. I am the successor trustee--only trustee, after my mom's death in FEB, 2024, and her only heir, and she owned the house free and clear since 12/88--but if the trust remains intact (IN HER NAME at reg/recorder) without my changing the title, could some GOV agency say to me, "GET OUT OF THAT HOUSE! THE TITLE is not in your name and you have no right to be there! THAT house is not your property!" SUCH a thought occasionally arises and wreaks havoc on my peace of mind, as you could imagine, as this residence is the only one that I have known since birth.

zddoodah, in his post, asked bluntly, ''Have you transferred title to yourself in the last three months? If not, why do you think the "house is 100% [yours] now"? My only answer is that I am the successor trustee, but maybe that does not mean that I own the house in the eyes of the law.

 

[Tax Counsel]

A day of death appraisal in the future (when you sell/if you sell) will not change the value of the house on the day of death. Certified appraisals are done by comparing market prices of comparable properties in the neighborhood where the house is. That is all searchable many years later and appraisers rarely actually inspect the property other than to take pictures of the outside of the property. So, it really doesn't matter when the appraisal for step up value is done.

You've apparently not dealt with the IRS or the Tax Court on a real property valuation issue. Their long standing approach has been that the closer in time to the transfer that the appraisal is done the more reliable the appraisal is likely to be. Hence the advice by most tax lawyers and other tax practitioners to get an appraisal done close in time to the sale or other event in which basis is important. Perhaps someday they will be more willing to trust appraisals further out in time when all records are electronic and readily available. But that is not their stance today. It may be helpful to remember that in general civilian government agencies and courts lag well behind businesses when it comes to the adoption of and reliance on new technology. The IRS particuarly so (though a good share of the blame for that is Congress).

There are still a lot of properties that were held and the basis established many decades ago, before the consumer internet made computer accesss easy and inexpensive, which was around the mid 90s. With that in mind, if it were me, I'd get an appraisal now. Other than paying the fee to the appraiser for that, there is no downside to it. But it may provide an upper hand in a battle with the IRS later over what the correct basis is, and that will cost much more than the cost of the appraisal. It is not required get an appraisal close to the time of the transfer or other event in which basis is an issue. It's simply the more conservative approach to the matter, taking less risk. The risk that the OP is willing to take is, of course, his choice.

 

[adjusterjack]

1. The articles mentioned PROP 19 reassessment and ways to keep the low tax basis upon TRANSFER of real PROPERTY. IF I do not change the reg/title at the reg\recorder's office, then I guess that I am not TRANSFERRING THE TITLE TO myself and I am keeping the house in the name of MY LATE mom's trust; furthermore, I am avoiding reassessment. IS that legal?

I suggest you call the property tax people and check on that. The state may very well call it a change of ownership without a deed from the trust to you. Or, it may be excluded from reassessment. I don't know and you shouldn't rely on what you "think" you know, not without verifying it chapter and verse from the taxing authority.

WILL the LA county assessor suddenly ask me, come NOVEMBER when the property tax bills are issued, to prove that the house is my primary residence?

So what if they do? By then you should have established all the accounts in your name and can prove the inheritance. Which, by the way, is also good enough reason to get the house deeded to you.

could some GOV agency say to me, "GET OUT OF THAT HOUSE! THE TITLE is not in your name and you have no right to be there! THAT house is not your property!"

Could it? Sure? LOL. Will it? Highly unlikely. But if you are that paranoid, get the house deeded to you.

There really isn't any reason to finagle this ownership business.

 

[welkin]

curlyq said:
1. The articles mentioned PROP 19 reassessment and ways to keep the low tax basis upon TRANSFER of real PROPERTY. IF I do not change the reg/title at the reg\recorder's office, then I guess that I am not TRANSFERRING THE TITLE TO myself and I am keeping the house in the name of MY LATE mom's trust; furthermore, I am avoiding reassessment. IS that legal?

You are the successor trustee of the trust and the only beneficiary of the trust assets (the house and property). There are no other persons involved as beneficiaries.

There is something in common law called rule against perpetuities that says that that no interest in land is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.

To know if the rule applies in your mother's trust, you must read the trust documents and whether or not California recognizes the rule and to what extent. The best advice would be to consult with a local probate lawyer.

Understand that you are dealing with, and we are discussing three different areas of law in this thread. The first is CA probate law, the second is CA property tax law, and the third is Federal tax law.

 

[Tax Counsel]

There is something in common law called rule against perpetuities that says that that no interest in land is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.

Almost every state (Louisiana being a notable exception) has adopted a rule against perpetuity. But a number of states have modified it from the common law rule that you stated above. California is one of those states. CA has adopted the Uniform Statutory Rule Against Perpetuities, which modifies common law about the requirement of when the interest must vest. The common law rule, was as you stated, that the interest must vest within 21 years after the life of a person that has an interest in the trust. That rule was confusing and could be difficult to apply. But now the statute provides two rules for how long the trust can last. It adds the provision that the trust will not fail if the trust actually terminates or vests within 90 years of its creation. The effect of that change is that trusts are now valid in CA (and other states that adopted the uniform act) for at least 90 years after the trust was created. That provides a more clear rule to apply than the old common law rule (which was often one of the most challenging part of the bar exam in a number of states for quite a long time). Specifically, CA Probate Code § 21205 states:

21205. A nonvested property interest is invalid unless one of the following conditions is satisfied:

(a) When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive.

(b) The interest either vests or terminates within 90 years after its creation.

The statute goes on in successive sections to further clarify how the rule works in the case of things like powers of appointment.

The first is CA probate law, the second is CA property tax law, and the third is Federal tax law.

Also CA income tax law as well. For federal tax law, there are two principal taxes that may apply. Federal income tax is, of course, one of them and as things are today that's the one that would affect estates the most. There is also estate and gift tax which applies if the total of all taxable gifts made during the life of the decedent plus the value of the decedant's estate exceeds the federal unified credit for gift and estate taxes, which is currently quite large, over $13 million for 2024. Relatively few estates end up being that large.

In short, it's a very good idea for the executor/adminstrator to get advice from a tax professional who is experienced in both income tax (state and federal) and the federal gift and estate rules. If the executor/administrator screws up on the various taxes that the estate owes there is the possibility that the executor/administrator will become personally liable for the taxes owed that are the result of the screw up.

 

[curlyq]

Re: welkin and Tax Counsel,

I have my mom's trust in front of me. Page 3 states that "All trusts created by this instrument or by the exercise of any power of appoinment shall terminate within 90 years after its creation, pursuant to California Probate Code #21200-21231 and shall include any amendments and/or equivalent succesor section to said code or regulation.''

1. Because the trust was clearly designed to be in accord with California's 90 year rule, I, as successor trustee, need to do nothing, including registering the house at reg/recorder in LA county, for 90 years. Is my interpretation correct?

2. THE only item in the trust was the house. The house's value may have appreciated in the 16 months of the trust before my mom died (10/22 - 2/24), but the IRS and the CAL FTB do not consider APPRECIATION to be INCOME, do they?

3. My mom had the house appraised at the time of the trust ($900K). I have that document. THAT document is evidently similar to the "DATE OF DEATH APPRAISAL'' in that no IRS form exists for recording it and my mom/I do not have to file it with the IRS or FTB; I merely keep it until I am asked for it, which likely would be if I sell the house.

THE house likely would be appraised today for 1 mil. If I sold the house for say, 1 million, I would not owe capital gains taxes because I got a stepped up value to 1 mil when my mom died. THE question, however, is whether the estate/trust would owe income tax because the house was worth 900k when the trust was written and 1 mil when sold, a gain of 100k.

My mom's total estate was the house and a few bank accts, but the bank accts were in jt tenancy with me and were NOT IN THE TRUST, as I said earlier. SHE was $11 mil or more SHORT of the $13 mil estate tax limit. DO I have to file a tax return that itemizes her estate to PROVE THAT she was below the limit or would I file an ESTATE TAX return ONLY IF SHE OWED the tax?

4. I will get the DATE OF DEATH appraisal ASAP. TO have the Appraisal in my possession NOW might be better from the IRS's (AND A TAX COURT's) PERSPECTIVE than to try to get one 10 or 20 years down the road, although from what my neighbor the REAL estate agent (AND welkin) said, all of those appraisals are calculated by somebody on a computer with access to real estate sales records in the neighborhood in question and can be done at ANY time in the future; too bad that the IRS does not see it that way, as I could save the expense of having the appraisal.

 

[Tax Counsel]

1. Because the trust was clearly designed to be in accord with California's 90 year rule, I, as successor trustee, need to do nothing, including registering the house at reg/recorder in LA county, for 90 years. Is my interpretation correct?

You'd best ask a CA attorney for that answer. What I would say is that if the trustee takes care to follow that instruction so that the trust actually vests or terminates within that 90 period. I can't predict the future and can't say if the trustee 89 years from the date the trust was created (if the trust is still going) will be diligent enough to remember that provision and ensure it vests before going over the 90 year mark.

although from what my neighbor the REAL estate agent (AND @welkin) said, all of those appraisals are calculated by somebody on a computer with access to real estate sales records in the neighborhood in question and can be done at ANY time in the future; too bad that the IRS does not see it that way, as I could save the expense of having the appraisal.

In the U.S. there 3142 counties in the U.S. spread out among 50 states and DC. Each one maintains records differently; some are very up to date, others are not. As the IRS and the Tax Court favor consistent treatment of taxpayers regardless of where they are in the U.S., they have adopt a rule that will work for all of them. That is one of the reasons why the IRS seems well behind on this issue, though it's not directly the fault of the IRS. It's in part due to counties still lagging well behind the rest of them that creates a challenge to a uniform approach to this. The IRS can't tell the states and counties how to maintain their property records; all it can do is note what the status is in those areas most lagging behind in getting into the 21st century and adopt rules accordingly.

 

[curlyq]

THANKS for all of the replies. I am now ready to get the Date OF Death appraisal, but I will let the trust that was written for my mom in 10/22 remain intact, as I likely have 88 more years before it terminates.

I do not know if I need to open a post in the banking category, but the reason that I did not reply here for 4 days is that Comenity CAPITAL Bank, AKA Bread Savings, decided to deny me the right to transfer the entirety of the CD that matured on the 14th to another online bank. THE stated reason is that 'We only make ACH transfers back to the original bank from which the funds were drawn and you have requested that we send the funds to a new bank.'

MY late mom and I opened the 1 year cd JOINT acct in 5/20 and renewed it 3 times. WE closed the acct at the bank from which the funds were transferred when we sent the MONEY to COMENITY CAPITAL, which seems logical (THE MONEY can be in only 1 bank at a time, right?)--to me, anyway.

THE funds came from an FDIC insured bank in the USA on 5/14/20. I asked on 5/14/24 to have the funds sent by ACH to an FDIC insured bank in the USA. I have been accused of FRAUD; my acct is labeled, "FRAUD." I am losing $68.05 a day. THE FDIC told me on the phone yesterday that it does not handle such cases.

In the back of my mind I wonder if the bank is punishing me for removing such a large amount. I also suspect that the bank is trying to withhold the money because my mom died during the term of the cd, although I never notified it of my mom's death; the bank may have learned of the death somehow. THE Bank's website's FAQ says, "When the death of a joint owner occurs, you can

a. terminate the acct, or
b. let it ride until maturity.' I chose the latter.


THE bank refuses to reply to my emails, messages on the site's dashboard, or calls. THE bank allows me access to the site via signing in, but will not allow me to move the money, as I said, and IN ANOTHER INFURIATING, possibly illegal, maneuver, the account dashboard says, "MATURES on 5/14/25 at 5.20% apy.'' I never authorized the bank to renew the account; moreover, I specifically told the bank on the phone on 5/13 and 5/14 that I wanted to terminate the account and send the money elsewhere, unless the bank would match 5.40%, which it declined to do.

I am not happy. WHAT recourse do I HAVE?


OF course, I thank everybody here in advance.

 

[welkin]

When you took out the CD, there would have been a service agreement (contract) that you had to agree to. What does it say about transfers?

 

[curlyq]

RE:
welkin
Thanks for the tip! I found the 'service agreement.' Below are the parts that pertain to transfers and acct closures.

COMENITY"S contract said,
1. 'You may withdraw available funds from your Account by External Transfer to a Linked Account at any time as described in Section E - Online Banking. You may also withdraw available funds by wire transfer by calling us or by requesting that we issue an official check. However, we may restrict these types of withdrawals until after your Account has been open for 30 days.'

--My acct has been open for 4 years; I requested ACH transfer and I did it by phone; therefore this section is inapplicable.

2. You agree that you will not attempt to make an External Transfer to any account that is established for business or commercial purposes.

--my acct was personal/joint with my mom and the new bank's acct is my own personal.

3. (a) Right of survivorship.
Unless this Agreement expressly provides otherwise, upon the death of a party to a multiple-party Account, the funds in the Account will belong to the surviving party or parties in accordance with applicable law but there will be no such right of survivorship with respect to multiple trust beneficiaries or P.O.D. payees who become parties to the Account.

(c) Withdrawals.
All monies and Items deposited in a multiple-party Account may be withdrawn at any time, in whole or in part, by any party to the Account, subject to any limitations on the Account or on large withdrawals. We may pay the balance of the Account to any party to the Account even if another party is deceased. If a party to the Account becomes incompetent, we may pay the balance of the Account to any party, even if we have received notice of an adjudication of incompetency and appointment of guardian.

---I still maintain that I was within my right to ask for the transfer. My mom died in Feb, but I have been listed as jt ten from DAY 1.

4. You may be a party to an ACH entry or an entry sent over a similar network, which may be credited or debited to your Account. Any such transaction will be governed by National Automated Clearinghouse Association ("NACHA") operating rules or other relevant network rules then in effect for any such transactions. We may rely on the promises of the originator of the transaction set forth in the NACHA operating rules or other relevant network rules in debiting or crediting your Account. We will notify you of the receipt of any such debit or credit only in your Account statement. Payment of such entries will be processed on the basis of your Account number, even if the correct name is not included in the entry.

5.
When We May "Freeze" or Place a Hold on Your Account

We may "freeze" or place a hold on your Account if:

• You file for bankruptcy;
• We are served with legal process or a court or governmental order and it is not clear to us who has the right to the funds in your Account;
• A dispute arises concerning your Account, including, for example, a dispute over who is authorized to make withdrawals from the Account, who owns the Account, or who can give us instructions regarding the Account;
• We reasonably believe that your Account is or may be used for any illegal or improper purpose or activity;
• We have reason to believe that your Account has been compromised or mismanaged in any way, such as by unauthorized or erroneous use of your password;
• You have provided incorrect or misleading data to us when opening the Account or at any time;
• You use or attempt to use the Account for business or commercial purposes;
• You repeatedly overdraw the Account; or
• You link or attempt to link your Account to an account that you do not own or to a business account.

We may maintain a freeze or hold on your Account until any claim, issue or dispute has been resolved fully in our sole satisfaction or we have investigated and are satisfied that your Account is not involved in any unauthorized activity. We will not be liable to you if our freeze or hold leaves insufficient funds to cover outstanding Items. You agree to reimburse us for our expenses, including attorneys' fees and expenses, arising out of any dispute and our response to it. We will give you notice of the freeze or hold unless we are not permitted by law to do so.

--THE bank never used the word "FREEZE," but the money has not been transferred from 5/14/24, when I made my request on the phone, and I am treated like a leper when I call or send email on the site's dashboard. A better phrase is that I have been stonewalled since 5/16.

THE bank HAS used the word "FRAUD,'' not suspected fraud, which seems to fit the category of

• We reasonably believe that your Account is or may be used for any illegal or improper purpose or activity.

--To my way of thinking as a layman, 'reasonably' should not be applied to a person who opened an acct on 5/14/20 via ACH transfer from an FDIC bank, let the money ride for 4 years, and tried to transfer it via ACH to an FDIC bank in USA upon the acct's maturity. WHO gave COMENITY the ownership of my acct and the right of approval for my transfers? I certainly did not.

6. Standard of Care

We owe you a duty only of ordinary care. Our own internal policies do not impose a higher standard of care than would otherwise apply. We are not responsible for any loss or damage we cause you unless we failed to exercise ordinary care.


Indemnification and Limitations of Liability

Neither the Bank nor any party related to the Bank, including its predecessors, parent, affiliates and its and their officers, directors, employees, representatives, shareholders and agents (collectively, the "Bank Parties"), will be liable to you for any special, consequential, indirect or punitive damages, whether based on contract, statute or tort or whether the likelihood of such claim is known to either you or us. To the fullest extent permitted by law, we are not liable to you for errors that do not result in a financial loss to you or for damage caused by:

• Actions we take that are consistent with this Agreement;
• Our delay or inability to perform our obligations under this Agreement due to circumstances beyond our control, including, for example, natural disasters, hurricanes, fires, power failures, telecommunications network failures, acts of God, epidemics, pandemics, wars and civil unrest;
• Your failure to comply with the terms of this Agreement; or
• Our exercise of ordinary care.

Our liability for any claim you make will be limited to the amount of any Item, transaction, deposit or withdrawal we improperly handle. You agree to indemnify the Bank Parties for all claims arising out of our performance under this Agreement. This indemnification survives the termination of this Agreement.


---I would like to get money or, if unable, sue them. THE language in the above section seems to preclude me from doing so.

7.Our Liability for Failure to Complete Electronic Fund Transfers.
If we do not complete an Electronic Fund Transfer to or from your Account on time or in the correct amount according to this Agreement, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance:

• If, through no fault of ours, you do not have enough money in your Account to make the transfer;
• If you have reached or exceeded applicable External Transfer limits for your Account;
• If you did not provide us with accurate information to make the transfer;
• If circumstances beyond our control such as fire or flood prevent the transfer, despite reasonable precautions that we have taken; and
• In any other applicable scenario stated in this Agreement.

--I see the failure of the transaction to be initiated and completed as 100% THE BANK's fault.

8. Error Resolution or Questions Regarding Electronic Fund Transfers.
In case of errors or questions about your Electronic Funds Transfers, telephone us at 833-755-4534

--I did and got nowhere, as I said. I would hardly call what the bank is doing to me a 'simple error.'

9. We will determine whether an error occurred within 10 Business Days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your Account within 10 Business Days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 Business Days, we may not credit your Account.

--IF they promise to let me 'have the use of the money during the time it takes us to complete the investigation,' then they should let me use it as I see fit, which is to transfer it.

(a) Your Authority.
When you elect to use External Transfers, you represent that you have full authorization from any other authorized signer on the eligible Bank or Other Financial Institution account to execute this authorization and that any other authorized signer on the Account agrees and understands that the Bank, and any of our processing agents, are authorized to debit and credit entries to the Account in accordance with your transfer instruction under External Transfers.

(b) Eligible Account Types.
The following types of accounts are eligible for External Transfers:

• Online Savings Accounts with us; and
• Checking, savings, money market, investment and brokerage accounts held at any Other Financial Institution in the United States able to accept ACH Transfers.

CD Accounts with us are ineligible for External Transfers. You may have other accounts that are ineligible for External Transfers due to restrictions by the Bank or specific to your Other Financial Institution. Please contact us or your Other Financial Institution as applicable if you have questions about whether your external accounts are eligible for External Transfers.

(c) Account Verification.
The Bank may verify any Account you add to External Transfers and you authorize the Bank to validate the accounts at your Other Financial Institution using a trial deposit method. We will make two micro deposits to and withdrawals from your external account and request you to confirm the amounts by entering the values of the deposits in Online Banking. If the entered values match the trial deposit amounts, the Account will be approved.

---my acct is a CD, but the rep from the bank said, "WE can and will initiate the ACH transfer for you. YOU, however, cannot initiate it.'' I therefore called the bank on 5/14/24 to request the transfer and the rep said that SHE DID it on the phone as we spoke, or so I THOUGHT. I was misled, to say the least.

THE 'two micro deposits' were made by COMENITY and then verified by me. THE bank did not live up to its contract, which stated that 'If the entered values match the trial deposit amounts, the Account will be approved.'

 

[welkin]

8. Error Resolution or Questions Regarding Electronic Fund Transfers.
In case of errors or questions about your Electronic Funds Transfers, telephone us at 833-755-4534

Is that the number that you have been calling to get this worked out?

7.Our Liability for Failure to Complete Electronic Fund Transfers.

If the bank is now ignoring you as you say, I would write a letter to the corporate office (legal dept.) and tell them they are in violation of their own service agreement and that you will hold them responsible for the interest you are losing because they failed to (and continue to honor the transfer). Send it register mail with RRR. You can also say that they are in breach of contract, and you will sue for damages.

You can always get a consult with a local attorney and see if they will write you a cease-and-desist letter.

 

[Tax Counsel]

Send it register mail with RRR

It should be sent by certified mail, return receipt requested. I fairly often see the terms certified mail and registered mail used on message board posts and internet pages as though they are interchangeable terms. They are, however, two very distinctly different services. Registered mail costs more and is primarily used when sending goods by mail with a significant value. The reason for the higher cost is that registered mail may also be insured, currently up to $25,000. Certified mail is what is commonly used for documents sent that have no intrinsic value (the letter itself is not particularly valuable) but you need proof that the item was received by the intended recipient. You don't have the option of insurance with certified mail. But you don't need insurance for a letter that you just want to prove was received by the addressee.

 

[curlyq]

8. Error Resolution or Questions Regarding Electronic Fund Transfers.
In case of errors or questions about your Electronic Funds Transfers, telephone us at 833-755-4534

welkin
Is that the number that you have been calling to get this worked out?

---YES, that it is the phone #, but it is to customer support, not ADMIN HEADQUARTERS, and the people who answer seem to be from ANOTHER COUNTRY, not locally based, which frustrates me, as they have no power to resolve the issue. THE issue of fraud ALMOST definitely did NOT come from them, as a lady from customer support told me on the phone on 5/14 that the transfer would be completed on the 15th, but then on the 15th at 5;29 p.m. the 'fraud dept' stepped in and emailed me that 'fraud was suspected (WITH no explanation as to why) and that I needed to provide all kinds of proof, including letters from the new bank attestng to my character and such.' I got a little annoyed, shall we say, and told the 'fraud dept' that I wanted my money immediately transferred and that I considered her hold to be illegal and unjustified; unfortunately that approach did not yield results, as you saw; that is, I did not get GOOD results.

YOUR suggestion to send a LETTER, perhaps cease and desist, to the LEGAL DEPT at CORPORATE HEADQS, preferably certified (Tax Counsel) and with RRR, and to mention the damages/lost of interest that they are responsible for because they are not honoring their contract, seems very logical and likely productive. I greatly appreciate YOUR HAVING read the 'rules of the contract,' as I have no knowledge of law and many of the terms were over my head.

I will try to find the corporate address and get started. At this point, the damage seems to be irrevocably done and I cannot reasonably expect to wake up tomorrow and find that the money has been transferred, unless I believe in miracles, so I must take proactive action.


Thanks again. I will keep you posted.