454.507. Financial institutions, division may request information, when, fees--definitions--data match system--notice of lien.
Financial institutions, division may request information, when,fees--definitions--data match system--notice of lien.
454.507. 1. In addition to the authority of the division to requestinformation pursuant to section 454.440, the division may requestinformation from financial institutions pursuant to this section.
2. As used in this section:
(1) "Account" includes a demand deposit, checking or negotiablewithdrawal order account, savings account, time deposit account or moneymarket mutual fund account;
(2) "Encumbered assets", the noncustodial parent's interest in anaccount which is encumbered by a lien arising by operation of law orotherwise;
(3) "Financial institution" includes:
(a) A depository institution as defined in Section 3(c) of theFederal Deposit Insurance Act (12 U.S.C. Section 1813(c));
(b) An institution affiliated party as defined in Section 3(u) of theFederal Deposit Insurance Act (12 U.S.C. Section 1813(u));
(c) Any federal credit union or state credit union, as defined inSection 101 of the Federal Credit Union Act (12 U.S.C. Section 1752),including an institution affiliated party of such a credit union as definedin Section 206(r) of the Federal Credit Union Act (12 U.S.C. Section1786(r)); or
(d) Any benefit association, insurance company, safe deposit company,money market fund or similar entity authorized to do business in the state.
3. The division shall enter into agreements with financialinstitutions to develop and operate a data match system which usesautomated exchanges to the maximum extent feasible. Such agreements shallrequire the financial institution to provide to the division, for eachcalendar quarter, the name, record address, Social Security number or othertaxpayer identification number, and other identifying information of eachnoncustodial parent who maintains an account at such institution and whoowes past due support, as identified by the division by name and SocialSecurity number or other taxpayer identification number. The financialinstitution shall only provide such information stated in this subsectionthat is readily available through existing data systems, and as such datasystems are enhanced, solely at the financial institution's discretion andfor its business purposes, the financial institution shall provide anyoriginal and additional information which becomes readily available for anynew data match request.
4. The division shall pay a reasonable fee to the financialinstitution for conducting the data match pursuant to this section, butsuch amount shall not exceed the costs incurred by the financialinstitution.
5. The division or a IV-D agency may issue liens against any accountin a financial institution and may release such liens.
6. (1) If a notice of lien is received from the division or a IV-Dagency, the financial institution shall immediately encumber the assetsheld by such institution on behalf of any noncustodial parent who issubject to such lien. However, if the account is in the name of anoncustodial parent and such parent's spouse or parent, the financialinstitution at its discretion may not encumber the assets and when itelects not to encumber such assets, shall so notify the division or IV-Dagency. The amount of assets to be encumbered shall be stated in thenotice and shall not exceed the amount of unpaid support due at the time ofissuance. The financial institution shall, within ten business days ofreceipt of a notice of lien, notify the division or IV-D agency of thefinancial institution's response to the notice of lien.
(2) Within ten business days of notification by the financialinstitution that assets have been encumbered, the division or IV-D agencyshall notify by mail the noncustodial parent of the issuance of the lienand the reasons for such issuance. The notice shall advise thenoncustodial parent of the procedures to contest such lien pursuant tosection 454.475 by requesting a hearing within thirty days from the datethe notice was mailed by the division to the noncustodial parent.
7. (1) Except as provided in subsection 6 of this section, theinterest of the noncustodial parent shall be presumed equal to all otherjoint owners, unless at least one of the joint owners provides the divisionor IV-D agency with a true copy of a written agreement entered prior to thedate of issuance of notice of lien, or other clear and convincing evidenceregarding the various ownership interests of the joint owners within twentydays of the financial institution's mailing of the notice of lien. Thefinancial institution shall only encumber the amount presumed to belong tothe noncustodial parent. The division or IV-D agency may proceed to issuean order for the amount in the account presumed to belong to thenoncustodial parent if no prior written agreement or other evidence isprovided.
(2) If a prior written agreement or other clear and convincingevidence is furnished to the division, and based on such agreement orevidence the division or IV-D agency determines that the interest of thenoncustodial parent is less than the presumed amount, the division or IV-Dagency shall amend the lien to reflect the amount in the account belongingto the noncustodial parent or shall release the lien if the noncustodialparent has no interest in the account. In no event shall the division orIV-D agency obtain more than the presumed amount of the account without ajudicial determination that a greater amount of the account belongs to thenoncustodial parent. The division or IV-D agency may by levy and executionon a judgment in a court of competent jurisdiction seek to obtain an amountgreater than the amount presumed to belong to the noncustodial parent uponproof that the noncustodial parent's interest is greater than the amountpresumed pursuant to this subsection.
(3) For purposes of this subsection, accounts are not joint accountswhen the noncustodial parent has no legal right to the funds, but is eithera contingent owner or agent. Such nonjoint accounts shall include, but arenot limited to, a pay-on-death account or any other account in which thenoncustodial parent owner may act as agent by a power of attorney orotherwise. Furthermore, when any account naming the noncustodial parenthas not been disclosed to the noncustodial parent which is evidenced by asignature card or other deposit agreement not containing the signature ofsuch noncustodial parent, then for the purposes of this subsection, suchaccount shall not be treated as a joint account.
(4) Notwithstanding any other provision of this section, a financialinstitution shall not encumber any account of less than one hundreddollars.
8. Upon service of an order to surrender issued pursuant to thissection, any financial institution in possession of a jointly owned accountmay interplead such property as otherwise provided by law.
9. Any other joint owner may petition a court of competentjurisdiction for a determination that the interests of the joint owners aredisproportionate. The party filing the petition shall have the burden ofproof on such a claim. If subject to the jurisdiction of the court, allpersons owning affected accounts with a noncustodial parent shall be madeparties to any proceeding to determine the respective interests of thejoint owners. The court shall enter an appropriate order determining thevarious interests of each of the joint owners and authorizing paymentagainst the obligor's share for satisfaction of the child support ormaintenance obligation.
10. The court may assess costs and reasonable attorney's fees againstthe noncustodial parent if the court determines that the noncustodialparent has an interest in the affected joint account.
11. The division may order the financial institution to surrender allor part of the encumbered assets. The order shall not issue until sixtydays after the notice of lien is sent to the financial institution. Thefinancial institution shall, within seven days of receipt of the order, paythe encumbered amount as directed in the order to surrender.
12. A financial institution shall not be liable pursuant to any stateor federal law, including 42 U.S.C. Section 669A, to any person for:
(1) Any disclosure of information to the division pursuant to thissection;
(2) Encumbering or surrendering any assets held by the financialinstitution in response to a lien or order pursuant to this section andnotwithstanding any other provisions in this section to the contrary,encumbering or surrendering assets from any account in the financialinstitution connected in any way to the noncustodial parent; or
(3) Any other action taken in good faith to comply with therequirements of this section.
13. A financial institution that fails without due cause to complywith a notice of lien or order to surrender issued pursuant to this sectionshall be liable for the amount of the encumbered assets and the divisionmay bring an action against the financial institution in circuit court forsuch amount. For purposes of this subsection, "due cause" shall include,but not be limited to, when a financial institution demonstrates to a courtof competent jurisdiction that the institution established in good faith aroutine to comply with the requirements of this section and that one ormore transactions to enforce the lien or order to surrender were notcompleted due to an accidental error, a misplaced computer entry, or otheraccidental human or mechanical problems.
(L. 1997 S.B. 361, A.L. 2002 S.B. 895)