They take our property here, too!


Iain’s recent post on the Exchequer taking over dormant accounts in the UK deserves a U.S. perspective as well. 
Under varying state banking laws, a deposit account that has had no activity during a certain period of time — state laws range from 12 months to 25 years — is considered dormant.  If an account is dormant, the bank sends a notice to the customer at his last known address, and the customer generally has to affirmatively state that he owns the account.  If the customer doesn’t reply, the bank remits the funds to the state treasury.

This takeover of dormant accounts doesn’t apply to deposits at national banks, according to the Office of the Comptroller of the Currency — the regulator of federally chartered national banks — which issued a final rule (2004) stating that state laws in this and certain other areas of bank operations were preempted.

Types of state laws that are generally preempted under Sec.  7.4007 include state requirements concerning abandoned and dormant accounts, checking accounts, disclosure requirements, funds availability, savings account orders of withdrawal, state licensing or registration requirements, and special purpose savings services.

However, I checked online deposit account agreements at numerous national banks and found that all of them stated that their applicable state laws apply to dormant accounts.

I am not aware of a federal banking law that would preempt those state dormant account or unclaimed property laws.  If that indeed is the case, then an absence of a federal law cannot preempt state law, which creates a curious situation. [Note: I’ll be following up on this with the OCC to find out if this is correct.]

Aside: Federal preemption of state banking laws is by no means a settled issue. Preemption has been the subject of a plethora of litigation and numerous Supreme Court decisions, as outlined in this OCC letter. (One of the most far-reaching was the Marquette case.)  An AEI conference last winter addressed the federal preemption issue relating to a bank issue.