US Laws, Codes, Statutes & Cases

Chapter 475A — Civil Forfeiture

 

2007 EDITION

 

CIVIL FORFEITURE

 

LIQUOR; DRUGS

 

CIVIL FORFEITURE

 

(Definitions)

 

475A.005  Definitions for chapter

 

(Civil Forfeiture Generally)

 

475A.010  Legislative findings; preemption of local laws; remedy not exclusive

 

475A.015  Right, title and interest in forfeited property vests in forfeiting agency

 

(Property Subject to Forfeiture)

 

475A.020  Property subject to forfeiture generally

 

475A.025  Property seized as result of consensual search of motor vehicle; written notice of right to refuse search required

 

475A.030  Currency; seizure of less than $15,000

 

(Seizure of Property)

 

475A.035  Procedure for seizure; immunities; constructive seizure; inventory

 

475A.040  Amendment of inventory

 

475A.045  Status of seized property; release; maintenance and use

 

475A.050  Recorded notice of intent to forfeit real property; form

 

(Nonjudicial Forfeiture)

 

475A.055  Nonjudicial forfeiture; notice of seizure for civil forfeiture; when notice need not be given; claims

 

(Expedited Hearing)

 

475A.060  Petition for expedited hearing; relief authorized; time of hearing

 

475A.065  Expedited hearing on claimed affirmative defense

 

475A.070  Order restoring custody of property after expedited hearing; requirements; enforcement

 

(Judicial Forfeiture)

 

475A.075  Civil action for forfeiture; when required; complaint; affidavit in response

 

475A.080  Standards of proof in civil action for forfeiture

 

475A.085  Affirmative defenses in civil action for forfeiture

 

(Mitigation)

 

475A.091  Motion for mitigation; order of court

 

475A.096  Minimum forfeiture; offer of compromise

 

475A.100  Factors to be considered by court in determining if forfeiture excessive

 

(Judgment of Forfeiture)

 

475A.110  Judgment of forfeiture; contents; effect

 

475A.111  Appellate review of order of mitigation

 

(Distribution of Forfeited Property and Proceeds)

 

475A.115  Equitable distribution of property or proceeds; intergovernmental agreements

 

475A.120  Distribution of forfeited property or proceeds by local government

 

475A.126  Distribution of forfeited property or proceeds by state

 

475A.130  Special Crime and Forfeiture Account

 

ASSET FORFEITURE OVERSIGHT ADVISORY COMMITTEE

 

475A.155  Asset Forfeiture Oversight Advisory Committee

 

475A.160  Asset Forfeiture Oversight Account

 

CIVIL FORFEITURE

 

(Definitions)

 

      475A.005 Definitions for chapter. As used in this chapter, unless the context requires otherwise:

      (1) “All persons known to have an interest” means:

      (a) Any person who has, prior to the time the property is seized for forfeiture, filed notice of interest with any public office as may be required or permitted by law to be filed with respect to the property which has been seized for forfeiture;

      (b) Any person from whose custody the property was seized; or

      (c) Any person who has an interest in the property, including all owners and occupants of the property, whose identity and address is known or is ascertainable upon diligent inquiry and whose rights and interest in the property may be affected by the action.

      (2) “Attorney fees” has the meaning given that term in ORCP 68 A.

      (3) “Costs and disbursements” are those expenditures set forth in ORCP 68 A.

      (4) “Financial institution” means any person lawfully conducting business as:

      (a) A financial institution or trust company, as those terms are defined in ORS 706.008;

      (b) A consumer finance company subject to the provisions of ORS chapter 725;

      (c) A mortgage banker or a mortgage broker as those terms are defined in ORS 59.840, a mortgage servicing company or other mortgage company;

      (d) An officer, agency, department or instrumentality of the federal government, including but not limited to:

      (A) The Secretary of Housing and Urban Development;

      (B) The Federal Housing Administration;

      (C) The United States Department of Veterans Affairs;

      (D) Rural Development and the Farm Service Agency of the United States Department of Agriculture;

      (E) The Federal National Mortgage Association;

      (F) The Government National Mortgage Administration;

      (G) The Federal Home Loan Mortgage Corporation;

      (H) The Federal Agricultural Mortgage Corporation; and

      (I) The Small Business Administration;

      (e) An agency, department or instrumentality of the state, including but not limited to:

      (A) The Housing Agency;

      (B) The Department of Veterans’ Affairs; and

      (C) The Public Employees Retirement System;

      (f) An agency, department or instrumentality of any municipality in the state, including but not limited to such agencies as the Portland Development Commission;

      (g) An insurer as defined in ORS 731.106;

      (h) A private mortgage insurance company;

      (i) A pension plan or fund or other retirement plan; and

      (j) A broker-dealer or investment adviser as defined in ORS 59.015.

      (5) “Forfeiting agency” means the State of Oregon or a political subdivision thereof that has accepted for forfeiture property seized by a seizing agency or that is processing a forfeiture case.

      (6) “Forfeiture counsel” means an attorney designated to represent a forfeiting agency in forfeiture actions or proceedings.

      (7) “Law enforcement agency” means any agency that employs police officers or prosecutes criminal cases.

      (8) “Official law enforcement use” or “official law enforcement activity” means uses or activities that may reasonably be expected to result in the identification, apprehension or conviction of criminal offenders.

      (9) “Police officer” has the meaning given that term in ORS 133.525.

      (10) “Proceeds of prohibited conduct” means property derived directly or indirectly from, maintained by or realized through an act or omission, and includes any benefit, interest or property of any kind without reduction for expenses of acquiring or maintaining it or incurred for any other reason.

      (11) “Prohibited conduct” includes violation of, solicitation to violate, attempt to violate or conspiracy to violate any provisions of ORS 475.005 to 475.285 and 475.805 to 475.980 when the conduct constitutes either a felony or misdemeanor as those terms are defined in ORS 161.525 and 161.545.

      (12) “Property” means any interest in anything of value, including the whole of any lot or tract of land and tangible and intangible personal property, including currency, instruments or securities or any other kind of privilege, interest, claim or right whether due or to become due.

      (13) “Seizing agency” means a law enforcement agency that has seized property for forfeiture.

      (14) “Weapon” means any instrument of offensive or defensive combat or anything used, or designed to be used, in destroying, defeating or injuring a person. [1989 c.791 §2; 1991 c.291 §1; 1993 c.508 §44; 1995 c.79 §388; 1997 c.631 §565; 2001 c.104 §215; 2001 c.780 §§1,1a; 2003 c.14 §308; 2005 c.625 §§74,75; 2007 c.71 §154]

 

(Civil Forfeiture Generally)

 

      475A.010 Legislative findings; preemption of local laws; remedy not exclusive. (1) The Legislative Assembly finds that:

      (a) The prohibited conduct defined in this chapter is undertaken in the course of profitable activities which result in, and are facilitated by, the acquisition, possession or transfer of property subject to forfeiture under this chapter;

      (b) Transactions involving property subject to forfeiture under this chapter escape taxation;

      (c) Governments attempting to respond to prohibited conduct require additional resources to meet their needs; and

      (d) There is a need to provide for the forfeiture of certain property subject to forfeiture under this chapter, to provide for the protection of the rights and interests of affected persons, and to provide for uniformity throughout the state with respect to the laws of this state which pertain to the forfeiture of real and personal property based upon prohibited conduct as defined in this chapter.

      (2) Therefore, the Legislative Assembly adopts the provisions of this chapter as the sole and exclusive law of the state pertaining to the forfeiture of real and personal property based upon the prohibited conduct, thereby replacing all charter provisions, ordinances, regulations and other enactments adopted by cities and counties pertaining to such forfeitures. After July 24, 1989, no actions for forfeiture shall be initiated except those in compliance with the provisions of this chapter.

      (3) This chapter is applicable throughout this state and in all cities and counties. The electors or the governing body of a city or county shall not enact and the governing body shall not enforce any charter provision, ordinance, resolution or other regulation that is inconsistent with this section.

      (4) This chapter does not impair the right of any city or county to enact ordinances providing for the forfeiture of property based upon conduct that is other than prohibited conduct as defined in this chapter if:

      (a) The property was used to commit the conduct described in the ordinances, or is proceeds of the conduct; and

      (b) The forfeiture is subject to procedures and limitations set forth in this chapter.

      (5) Nothing in this chapter shall be construed to limit or impair any right or remedy that any person or entity may have under ORS 166.715 to 166.735. The application of any remedy under this chapter is intended to be remedial and not punitive and shall not preclude or be precluded by the application of any previous or subsequent civil or criminal remedy under any other provision of law. Civil remedies under this chapter are supplemental and not mutually exclusive. [1989 c.791 §1; 1999 c.59 §145; 2001 c.780 §§2,2a]

 

      475A.015 Right, title and interest in forfeited property vests in forfeiting agency. Subject to this chapter, all right, title and interest in property forfeited under this chapter shall vest in the forfeiting agency upon commission of the prohibited conduct. [1989 c.791 §12; 1999 c.59 §146]

 

(Property Subject to Forfeiture)

 

      475A.020 Property subject to forfeiture generally. The following will be subject to civil in rem forfeiture:

      (1) All controlled substances which have been manufactured, distributed, dispensed, possessed or acquired in the course of prohibited conduct;

      (2) All raw materials, products and equipment of any kind which are used, or intended for use, in providing, manufacturing, compounding, processing, delivering, importing or exporting any service or substance in the course of prohibited conduct;

      (3) All property which is used, or intended for use, as a container for property described in subsection (1) or (2) of this section;

      (4) All conveyances, including aircraft, vehicles or vessels, which are used, or are intended for use, to transport or in any manner facilitate the transportation, sale, receipt, possession or concealment of property described in subsection (1) or (2) of this section, and all conveyances, including aircraft, vehicles or vessels, which are used or intended for use in prohibited conduct or to facilitate prohibited conduct in any manner, except that:

      (a) No conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of this section unless the owner or other person in charge of such conveyance was a consenting party or knew of and acquiesced in the prohibited conduct; and

      (b) No conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States or of any state;

      (5) All books, records, computers and research, including formulae, microfilm, tapes and data which are used or intended for use to facilitate prohibited conduct in any manner;

      (6) All moneys, negotiable instruments, balances in deposit or other accounts, securities or other things of value furnished or intended to be furnished by any person in the course of prohibited conduct, all proceeds of or from prohibited conduct, and all moneys, negotiable instruments, balances in deposit and other accounts and securities used or intended to be used to facilitate any prohibited conduct;

      (7) All real property, including any right, title and interest in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit or facilitate in any manner the commission of prohibited conduct; and

      (8) All weapons possessed, used or available for use in any manner to facilitate conduct giving rise to forfeiture. [1989 c.791 §3; 2001 c.780 §§3,3a]

 

      475A.025 Property seized as result of consensual search of motor vehicle; written notice of right to refuse search required. (1) Notwithstanding any other provisions of this chapter, property that is seized solely on the basis of a consensual search of a motor vehicle is not subject to civil in rem forfeiture unless, before obtaining the consent of a person for the search, the person is provided with written, multilingual notice of the right of the person to refuse to consent to the search. The notice shall include at least the following information:

      (a) Notice that the person has a right to refuse to consent to a search.

      (b) Notice that a refusal to consent to a search cannot be used against the person for any purpose.

      (c) Notice that anything found in the search can be seized as evidence of a crime or can be seized for civil forfeiture.

      (2) A notice or consent form under this section shall be considered multilingual if the notice or form provides information in at least English and Spanish. [1993 c.699 §20]

 

      475A.030 Currency; seizure of less than $15,000. Notwithstanding any other provision of this chapter, United States currency in an amount less than $15,000 is not subject to seizure or forfeiture solely on the basis that the money is in the form of cash rather than some other form. [1993 c.699 §22; 2001 c.780 §§4,4a]

 

(Seizure of Property)

 

      475A.035 Procedure for seizure; immunities; constructive seizure; inventory. Property may be seized for forfeiture as provided in this section.

      (1) Any person who delivers property in obedience to an order or direction to deliver the property under this section shall not be liable:

      (a) To any person on account of obedience to the order or direction; or

      (b) For any costs incurred on account of any contamination of the delivered property. This includes, but is not limited to, any disposal costs for any property forfeited under ORS 475A.020, any hazardous waste or material, any contraband or any other contamination contained in property seized under this section.

      (2) Property may be seized by any police officer without a court order if:

      (a) The property has been the subject of an earlier judgment in favor of any forfeiting agency in an earlier civil in rem proceeding under this chapter;

      (b) There is probable cause to believe that property is subject to forfeiture, provided that the property may constitutionally be seized without a warrant;

      (c) The seizure is in the course of a constitutionally valid criminal investigative stop, arrest or search, and there is probable cause to believe that the property is subject to forfeiture;

      (d) The property is directly or indirectly dangerous to the health or safety of any person; or

      (e) An owner consents to the seizure.

      (3) Except as provided in ORS 475A.045, with regard to cash or other assets which at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the person having control or custody of the property shall deliver the same over to the police officer.

      (4)(a) Property may be seized by any police officer pursuant to an order of the court. Forfeiture counsel or a seizing agency may apply for an ex parte order directing seizure of specified property.

      (b) Application shall be made to any judge as defined in ORS 133.525. The application shall be supported by one or more affidavits setting forth the facts and circumstances tending to show where the objects of the seizure are to be found. The court shall issue the order upon a finding of probable cause to believe that the described property is subject to forfeiture. The order may be set out on the face of a search warrant.

      (c) Except as provided in ORS 475A.045, with regard to cash or other assets which at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the order shall direct any person having control or custody of the property to deliver the same over to the seizing agency or to the court to abide judgment.

      (5) Property may be constructively seized by posting notice of seizure for forfeiture on it or by filing notice of seizure for forfeiture or notice of pending forfeiture in the public records that impart constructive notice of matters relating to such property. A notice which is filed must include a description of the property that is the subject of the seizure. Real property, including interests arising out of land sale contracts, shall be seized only upon recording notice of seizure containing a legal description of the property in the mortgage records of the county in which the real property is located.

      (6) Property which has been unconstitutionally seized may be subject to forfeiture if the basis for forfeiture under this chapter is sustained by evidence which is not the fruit of the unconstitutional seizure.

      (7) Promptly upon seizure, the officer who seized the property shall make an inventory of the property seized and shall deliver a receipt embodying the inventory to the person from whose possession they are taken or to the person in apparent control of the property at the time it is seized. The officer may, in addition, provide an estimate of the value of the property seized and information on the right to file a claim under ORS 475A.055 (2), and the deadline for filing that claim. If the property is unoccupied or there is no one present in apparent control, the officer shall leave the receipt suitably affixed to the property. If the property is physically removed from the location of seizure and it is unoccupied or there is no one present in apparent control, then the officer shall promptly file the receipt in the public records of the forfeiting agency. Every receipt prepared under this subsection shall contain, in addition to an inventory of the property seized, the following information:

      (a) The identity of the seizing agency; and

      (b) The address and telephone number of the office or other place where the person may obtain further information concerning the forfeiture.

      (8) A police officer has probable cause to believe that cash, weapons or negotiable instruments are subject to forfeiture if the cash, weapons or negotiable instruments are found in close proximity to controlled substances or to instrumentalities of prohibited conduct. Notwithstanding ORS 475A.080, if the forfeiting agency establishes in a forfeiture action that cash, weapons or negotiable instruments were found in close proximity to controlled substances or to instrumentalities of prohibited conduct, the burden is on any person claiming the cash, weapons or negotiable instruments to prove by a preponderance of the evidence that the cash, weapons or negotiable instruments are not proceeds of prohibited conduct or an instrumentality of prohibited conduct.

      (9) In the event that property is seized from the possession of a person who asserts a possessory lien over such property pursuant to applicable law, notwithstanding any other provision of law, any lien of the person from whom the property was seized shall remain in effect and shall be enforceable as fully as though the person had retained possession of the property. [1989 c.791 §4; 1991 c.218 §1; 1991 c.237 §1; 1991 c.934 §2; 1999 c.59 §147; 2001 c.780 §§5,5a; 2005 c.830 §31]

 

      475A.040 Amendment of inventory. If, prior to the commencement of forfeiture proceedings under ORS 475A.075, it is determined that the inventory prepared pursuant to ORS 475A.035 and 475A.055 is substantially incorrect, the seizing agency shall cause the inventory to be amended. The substance of the amendment shall be clearly noted on the face of the inventory. The amended inventory shall be served with any summons and complaint served under ORS 475A.075. If the amendment occurs after the commencement of forfeiture proceedings, the amended inventory shall be served on all persons previously served with summons and complaint under ORS 475A.075. [1991 c.218 §5; 2001 c.780 §§20,20a]

 

      475A.045 Status of seized property; release; maintenance and use. (1)(a) Except as otherwise provided in this chapter, property seized for forfeiture is not subject to replevin, conveyance, sequestration or attachment, nor is it subject to a motion or order to return under ORS chapter 133. The seizure of property or the commencement of a forfeiture proceeding pursuant to this chapter shall not abate, impede or in any way delay the initiation or prosecution of a suit or action by a financial institution for the possession of seized property in which the financial institution has or purports to have a lien or security interest or for the foreclosure of such lien or security interest. A financial institution may proceed with any suit or action involving property in which it has a lien or security interest even though a seizure has occurred and forfeiture proceedings have been or will be commenced. Any such suit or action may be consolidated with the forfeiture proceeding for the purpose of trial. If property which may be subject to forfeiture is sold prior to the conclusion of the forfeiture proceedings, the sheriff, trustee or other person conducting the sale and who has actual notice of the forfeiture proceedings shall distribute the sale proceeds as follows:

      (A) To the expenses of the sale;

      (B) To the payment of the obligations owed to the foreclosing financial institution that are secured by the property and to any other person whose lien or security interest in the property has been foreclosed in the suit or action in the order determined by the court; and

      (C) The surplus, if any, shall be distributed to the seizing or forfeiting agency, or to the court in which the forfeiture proceedings are pending.

      (b) The sheriff, trustee or other person who distributes the sale proceeds as provided shall not be liable to any person who has or asserts an interest in the property.

      (2) Within 30 days following seizure of property for forfeiture, the seizing agency, in consultation with the district attorney of the county in which the property was seized for forfeiture, shall determine whether it will seek the forfeiture of the property. If the seizing agency elects not to seek forfeiture, it shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens arising under ORS 87.152 to 87.162 that have attached to the property since its seizure and release the property. The property may be released to a person other than the person from whose custody or control the property was taken if the seizing agency, forfeiting agency or forfeiture counsel first mails to the last-known addresses of all persons known to have an interest in the property a notice of intent to release the property. The notice shall specify the person to whom the property is to be released and shall detail the time and place of the release. An agency that complies with the provisions of this subsection by paying costs and expenses of towing and storage, discharging possessory liens, mailing any required notices and releasing the property shall not be liable for its actions under this subsection or for any consequences thereof.

      (3) A forfeiting agency shall, pending forfeiture and final disposition and subject to the need to retain it in any criminal proceeding, provide that property in the physical custody of the seizing or forfeiting agency be serviced or maintained as may be reasonably appropriate to preserve the value of the property.

      (4) A forfeiting agency may, pending forfeiture and final disposition and subject to the need to retain seized property in any criminal proceeding:

      (a) Provide that the seized property be transferred for forfeiture to any city, county, state or federal agency with forfeiture authority, provided that no such transfer shall have the effect of diminishing or reducing the rights of any third party under this chapter.

      (b) Apply to the court for an order providing that the seized property may be sold, leased, rented or operated in the manner and on the terms that may be specified in the court’s order. The court shall deny any application unless the sale, lease, rental or operation of the property will be conducted in a commercially reasonable manner and shall not result in a material reduction of the property’s value. An order shall only be entered:

      (A) After notice and opportunity to be heard is provided to all persons known to have or to claim an interest in the property; and

      (B) With the consent of all persons holding security interests of record in the property.

      (c) Provide that the seized property be removed to a storage area for safekeeping.

      (5) Unless otherwise ordered by the court, the proceeds of the sale, leasing, renting or operation under subsection (4) of this section shall be held by the forfeiting agency, and the rights of holders of security interests of record in the property shall attach to the proceeds of the sale, leasing, renting or operation in the same order of priority as interests attached to the property.

      (6)(a) Except as provided in paragraph (b) of this subsection and except for currency with apparent or known intrinsic collector value, all cash seized for forfeiture, together with all cash received from the sale, leasing, renting or operation of the property, shall be immediately deposited in an insured interest-bearing forfeiture trust account or accounts maintained by the seizing or forfeiting agency exclusively for this purpose. Cash may be retained as evidence in a criminal proceeding but shall be deposited immediately when the need to retain it as evidence is discharged.

      (b) Notwithstanding paragraph (a) of this subsection, all cash seized for forfeiture which at the time of seizure is deposited in any form of account in a financial institution may remain in the account in the financial institution. From the time of seizure until the forfeiture proceeding is abandoned, or until a court ultimately enters or fails to enter a judgment of forfeiture, all deposits except the deposit of interest by the financial institution, withdrawals or other transactions involving the account are prohibited, unless approved by the court.

      (c) Subject to any court order, interest earned upon cash deposited in a forfeiture trust account or held in an account in a financial institution under this subsection shall be disbursed as follows:

      (A) If the forfeiture proceeding is abandoned, or if the court ultimately fails to enter a judgment of forfeiture or foreclosure, any interest earned, together with the cash deposited in the forfeiture trust account in connection with the seizure in question, shall be paid by the seizing or forfeiting agency to the person from whom it was seized and any interest earned, together with the cash deposited in an account in a financial institution shall be released by the seizing or forfeiting agency to the person from whom it was seized.

      (B) If a judgment of forfeiture is entered, but parties other than the forfeiting agency establish rights to portions of the amount deposited in the forfeiture trust account or the account held in a financial institution which are in the aggregate larger than or equal to the cash on deposit plus interest earned thereon, the interest, together with the cash on deposit, shall be disbursed by the forfeiting agency to the parties in the order of their priority.

      (C) If a judgment of forfeiture is entered, and the total amount arising out of the seizure which is on deposit in the forfeiture trust account or in an account in a financial institution, including interest earned on moneys deposited, is greater than the aggregate amount needed to satisfy the established interests of security interest holders, lienholders and other claimants, then the balance remaining after payment by the forfeiting agency to parties shall be retained by the forfeiting agency.

      (7) If the property seized for forfeiture consists of stocks, bonds, promissory notes, or other security or evidence of indebtedness, and the property is held in some form of account in a financial institution, the property may remain in the account pending a final decision in the forfeiture proceedings. Unless otherwise allowed by order of the court, no transactions involving the account shall be permitted other than the deposit or reinvestment of dividends or other normally recurring payments on the property. Any accrual to the value of the property during the pendency of forfeiture proceedings shall be disbursed in the manner provided for the disbursement of interest under subsection (6) of this section.

      (8) If property is seized for forfeiture or if a notice of forfeiture is filed without a prior judicial determination of probable cause, a court, on application filed by an owner of or interest holder in the property within 15 days after notice of its seizure for forfeiture, or actual knowledge of it, whichever is earlier, may, after five days’ written notice to the forfeiture counsel, issue an order to show cause to the forfeiting agency, for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists. If the court finds that there is no probable cause for forfeiture of the property, the property seized for forfeiture from the applicant or subjected to the notice of forfeiture shall be released from its seizure for forfeiture or lien pending the outcome of a judicial proceeding under ORS 475A.075. [1989 c.791 §5; 1991 c.237 §2; 1991 c.276 §1; 1991 c.800 §1; 1995 c.459 §1; 1999 c.59 §148; 2001 c.780 §§6,6a]

 

      475A.050 Recorded notice of intent to forfeit real property; form. (1) Whenever the state or a political subdivision intends to forfeit any real property, the state or political subdivision may have recorded by the county clerk or other recorder of deeds of every county in which any part of the premises or real property lies a notice of intent to forfeit real property under ORS 205.246. The notice shall contain the legal description of the real property, the common address if any and the attorney responsible for the forfeiture action. From the time of recording the notice, and from that time only, the intent to forfeit is notice to purchasers and encumbrances of the rights and equities in the premises of the party filing the notice. The notice shall be recorded in the same book and in the same manner in which mortgages are recorded and may be discharged in like manner as mortgages are discharged, either by such party or the attorney signing the notice.

      (2) Unless otherwise prescribed by law, a party recording a notice of intent to forfeit shall use substantially the following form:

______________________________________________________________________________

 

NOTICE OF INTENT

TO FORFEIT

 

Pursuant to ORS 475A.050, the undersigned states:

 

      That I, _______________ do declare that it is my intent to initiate forfeiture proceedings on the following described real property:

 

      1. The description of the real property to be affected is:

      ________________________

      ________________________

      ________________________

      ________________________

      ________________________

      2. The common address, if any, is:

      ________________________

      ________________________

      ________________________

Dated this _____ day of ________, _____.

This notice of intent to file forfeiture will expire on _____ day of ________, _____ absent future filings.

Name of agency seeking forfeiture

      ________________________

Name of Attorney

      ________________________

Address

      ________________________

      ________________________

      ________________________

Phone Number

      ________________________

 

State of Oregon          )

                                    ) ss.

County of _____         )

 

      The foregoing instrument was acknowledged before me this _____ day of ____________, ______.

_______________

Notary Public for Oregon

My commission expires________.

______________________________________________________________________________

 

      (3) The notice of intent to forfeit property shall expire 30 days after the date of filing absent future filings to perfect. [1989 c.791 §19; 2001 c.780 §§21,21a]

 

(Nonjudicial Forfeiture)

 

      475A.055 Nonjudicial forfeiture; notice of seizure for civil forfeiture; when notice need not be given; claims. Personal property which is not subject to an interest in favor of any person known to have an interest, other than a person who engaged in prohibited conduct, may be forfeited by the forfeiting agency in the manner provided in this section.

      (1) As soon as practicable after seizure for forfeiture, the seizing agency shall review the inventory prepared by the officer under ORS 475A.035 (7) and estimate the value of the property seized. The forfeiting agency shall amend the inventory to supply an estimate of value of the property seized if no estimate was made by the officer under ORS 475A.035 (7). The forfeiting agency shall, in addition, amend the inventory to supply a correct listing of the property seized or estimate of the value of that property if either the listing or any estimate of value made by the officer is substantially incorrect. Within 15 days after seizure for forfeiture, the forfeiting agency shall prepare a notice of seizure for forfeiture containing a copy of the inventory prepared pursuant to this section and ORS 475A.035, the identity of the person from whom the property was seized, the name, address and telephone number of the seizing agency and the address and telephone number of the office or other place where further information concerning the seizure and forfeiture may be obtained, and shall make reasonable efforts to serve the notice of seizure for forfeiture on all persons known to have an interest in the seized property. A person may be served as provided in ORCP 7 D except that the notice shall also include information regarding the right to file a claim under subsection (3) of this section, if applicable, and the deadline for filing the claim. If the property is cash in the amount of $1,000 or less, or if the fair market value of the property is $1,000 or less, the forfeiting agency may publish notice of seizure for forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to (d). In all other cases, the forfeiting agency shall publish notice of seizure for forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to (d). A copy of the notice, inventory and estimate of value shall be provided to the forfeiting agency’s forfeiture counsel.

      (2)(a) The notice of seizure for forfeiture provided for in this section need not be served on a person who has received the receipt provided for in ORS 475A.035 (7) if:

      (A) The receipt contains an estimate of the value of the property seized and the seizing agency has not amended the listing of property or estimate of the value in reviewing the inventory under subsection (1) of this section; and

      (B) The receipt contains information regarding the right to file a claim under subsection (3) of this section and the deadline for filing the claim.

      (b) Any person who has received the receipt provided for in ORS 475A.035 (7), who must be served with the notice of seizure for forfeiture solely by reason of an amendment to the listing of property or estimate of value under subsection (1) of this section, need only be served by mailing a true copy of the notice of seizure for forfeiture by certified mail, return receipt requested.

      (3) Any person claiming an interest in the property shall file a claim with the forfeiting agency’s forfeiture counsel within 21 days after notice of seizure for forfeiture if notice is given in a manner other than by publication. All other persons claiming an interest in the property shall file a claim with the forfeiting agency’s forfeiture counsel within 21 days after the last publication date if notice is published. No extension for the filing of any claim shall be granted. The claim shall be signed by the claimant under penalty of perjury and shall set forth all of the following:

      (a) The true name of the claimant;

      (b) The address at which the claimant will accept future mailings from the court or forfeiture counsel; and

      (c) A statement that the claimant has an interest in the seized property.

      (4) If no timely claim is filed, the property shall, upon application and affidavit of the forfeiting agency, be declared forfeited to the forfeiting agency. The affidavit shall set forth proof of service or, if no service was accomplished, facts demonstrating the forfeiting agency’s efforts to accomplish service, together with proof of publication of notice. The application and affidavit shall be filed in the circuit court designated in ORS 475A.075. The judgment declaring the property forfeited shall be as provided in ORS 475A.110.

      (5) If a timely claim is filed, a judicial forfeiture proceeding may be commenced as provided in ORS 475A.075.

      (6) Notwithstanding ORS 8.720 or any other provision of law, but subject to the provisions of ORS 180.060, a district attorney may act as forfeiture counsel in any civil forfeiture proceeding.

      (7) In any civil forfeiture proceeding where there are or may be related criminal proceedings, a prosecuting attorney or forfeiture counsel may participate in settlement negotiations initiated by the defendant or claimant or by the attorney representing the defendant or claimant.

      (8) If a forfeiting agency publishes notice of seizure for forfeiture in a newspaper in the manner provided by subsection (1) of this section, the agency may include in a single publication as many notices of forfeiture as the agency considers convenient. The publication may contain a single statement of matters from the notices of forfeiture that are common to all of the notices and which would otherwise result in needless repetition. The publication must contain for each notice of forfeiture a separate copy of the inventory prepared pursuant to this section and ORS 475A.035 and a separate statement of the identity of the person from whose custody the property was seized. The published inventory need not contain estimates of value for the property seized. [1989 c.791 §6; 1991 c.218 §2; 1991 c.799 §1; 1991 c.934 §1; 1993 c.553 §1; 1993 c.699 §10; 2001 c.780 §§7,7a]

 

(Expedited Hearing)

 

      475A.060 Petition for expedited hearing; relief authorized; time of hearing. (1) A person claiming an interest in property seized pursuant to this chapter may file a petition for an expedited hearing within 15 days after notice of seizure for forfeiture or within such further time as the court may allow for good cause shown.

      (2) A petition for an expedited hearing shall contain a claim if no claim has previously been filed. The petition shall reflect whether the petitioner seeks one or more of the following:

      (a) A determination at the hearing of any of the affirmative defenses provided for in ORS 475A.085.

      (b) An order restoring custody of seized property to the petitioner during the pendency of the proceedings if the court finds, by a preponderance of the evidence, that it is probable that the property will remain available for forfeiture at the completion of the proceedings and that there is a reasonable possibility that the petitioner will ultimately prevail in the proceeding.

      (c) Appointment of a receiver.

      (3) A person filing a petition under this section shall serve a copy of the petition on all persons known to have an interest. Service shall be accomplished as provided in ORCP 7D. Service by publication shall not be required prior to an expedited hearing.

      (4) A hearing shall be held within 15 days after service of all persons known to have an interest or at such later time as the court may allow for good cause shown. The hearing shall be limited to:

      (a) Deciding whether claimant can prove an affirmative defense provided for in ORS 475A.085 if the petitioner asserts one of those defenses;

      (b) Determining whether an order should be entered directing the return of the seized property to the claimant during the pendency of the hearing; and

      (c) Determining whether an order should be entered directing the appointment of a receiver to manage property seized pursuant to this chapter pending a final determination as to the disposition of the property, if the petitioner or the forfeiting agency requests that order.

      (5) If the petition is denied, and evidence that was not previously available to the petitioner is discovered, the petitioner may file a new petition under this section at any time prior to a trial under ORS 475A.075. The new petition shall be served as provided under subsection (3) of this section. A hearing on the petition shall be conducted as provided in ORS 475A.065.

      (6) The parties to a proceeding under ORS 475A.075 may at any time stipulate to the entry of an order restoring custody of seized property to a petitioner who claims an interest in the property. The order shall comply with the requirements of ORS 475A.070 (1). [1991 c.934 §4; 2001 c.780 §§22,22a]

 

      475A.065 Expedited hearing on claimed affirmative defense. (1) In any expedited hearing under ORS 475A.060 in which petitioner seeks a determination at the hearing of any of the affirmative defenses provided for in ORS 475A.085, the court may consider evidence relating to those affirmative defenses and shall make a determination as to any of those defenses that may be asserted by the petitioner.

      (2) If the court finds that petitioner has proven an affirmative defense provided for in ORS 475A.085, the court shall order that custody of the seized property be returned to the petitioner to the extent of the petitioner’s interest pending a final determination as to the disposition of the property, unless the forfeiting agency can show that the return of the property will result in prejudice to the agency in seeking forfeiture of other claimants’ interest in the property.

      (3) If the court finds that the petitioner has failed to prove an affirmative defense provided for in ORS 475A.085, the court shall continue the matter for further proceedings consistent with ORS 475A.075. [1991 c.934 §5]

 

      475A.070 Order restoring custody of property after expedited hearing; requirements; enforcement. (1) An order restoring custody to a petitioner under ORS 475A.060 or 475A.065 shall:

      (a) Prohibit the petitioner from using the property in unlawful conduct of any kind, or from allowing the property to be used by any other person in unlawful conduct;

      (b) Require the petitioner to service and maintain the property as may be reasonably appropriate to preserve the value of the property; and

      (c) Require the petitioner to inform the court of the exact location of the property at the time of any trial under ORS 475A.075 and to deliver the property to the forfeiting agency immediately upon the issuance of a judgment of forfeiture.

      (2) An order restoring custody to a petitioner under ORS 475A.060 or 475A.065 may include such other requirements as the court finds appropriate pending a final determination as to the disposition of the property.

      (3) An order restoring custody to a petitioner under ORS 475A.060 or 475A.065 is enforceable by a contempt proceeding brought on the relation of forfeiture counsel, by a further order directing the petitioner to deliver the property to the custody of the forfeiting agency, by an order awarding to the forfeiting agency its reasonably incurred attorney fees, costs and investigative expenses, and by such other remedies or relief as the court may find appropriate. [1991 c.934 §6]

 

(Judicial Forfeiture)

 

      475A.075 Civil action for forfeiture; when required; complaint; affidavit in response. A civil action in rem may be brought as provided in this section in any case in which forfeiture is sought. A civil action in rem must be brought if the property is real property, the property is in whole or part a manufactured dwelling as defined in ORS 446.003, the property is a floating home as defined in ORS 830.700 or the property is subject to an interest in favor of any person known to have an interest, other than a person who engaged in prohibited conduct.

      (1) If a forfeiting agency has commenced proceedings under ORS 475A.055, then an action shall be commenced by forfeiture counsel, within 15 days of receipt of a claim. If no proceedings have been commenced under ORS 475A.055, then the action shall be commenced by forfeiture counsel within 30 days of seizure. The property may be released by forfeiture counsel as provided in ORS 475A.045 (2).

      (2) An action is commenced by filing a complaint. Responses to a complaint shall conform to the following procedure:

      (a) A person claiming an interest in the property shall respond as provided in the Oregon Rules of Civil Procedure and, if a claim has not previously been filed, by filing a claim in the form set forth in ORS 475A.055 (3) with the court and posting a bond with the court. The bond shall be a cash bond in an amount equal to 10 percent of the value of the interest claimed by the person in the property. Upon good cause shown by motion and affidavit filed with the initial appearance, the court may waive or reduce the bond. Failure to file an appearance, claim and bond shall constitute a default. The bond shall be returned to the claimant upon the entry of a final determination on the claim.

      (b) Notwithstanding the provisions of paragraph (a) of this subsection, a financial institution holding an interest in the seized property shall respond to a complaint with an affidavit establishing that the financial institution’s interest in the property was acquired:

      (A) In the regular course of business as a financial institution;

      (B) For valuable consideration;

      (C) Without knowledge of the prohibited conduct;

      (D) In good faith and without intent to defeat the interest of any potential forfeiting agency; and

      (E) With respect to personal property, prior to the seizure of the property, or with respect to real property, recorded prior to the recording of notice of the seizure of the real property in the mortgage records of the county in which the real property is located. Failure to file an affidavit shall constitute a default. The affidavit shall be filed within 30 days from the date of service.

      (c) Notwithstanding the provisions of paragraph (a) of this subsection, any person, other than a financial institution, who transfers or conveys an interest in real property pursuant to a contract for transfer or conveyance of an interest in real property as defined in ORS 93.905 and who retains an interest in the real property, or any successor in interest, may respond to a complaint with an affidavit establishing that the person:

      (A) Received the interest in return for valuable consideration or by way of devise or intestate succession;

      (B) Had no knowledge at the time of transfer or conveyance of the prohibited conduct;

      (C) Acted in good faith and without intent to defeat the interest of any potential forfeiting agency;

      (D) Recorded the interest in the mortgage records of the county in which the real property is located prior to the recording of any notice of intent to seize or notice of seizure; and

      (E) Continued to hold the interest without acquiescing in the prohibited conduct.

      (d) For the purposes of paragraph (c) of this subsection, a person shall be considered to have acquiesced in prohibited conduct if the person knew of the prohibited conduct and knowingly failed to take reasonable action under the circumstances to terminate or avoid use of the property in the course of prohibited conduct. For purposes of this section, “reasonable action under the circumstances” includes, but is not limited to:

      (A) Reporting the prohibited conduct to a police agency;

      (B) Commencing action that will assert the rights of the affiant as to the property interest;

      (C) Terminating a rental agreement; or

      (D) Seeking an abatement order under the provisions of ORS 105.505 to 105.520, or under the provisions of ORS 105.550 to 105.600, or under any ordinance or regulation allowing abatement of nuisances.

      (e) The affidavit permitted by paragraph (c) of this subsection shall be filed within 30 days from the date of service of the summons and complaint. Failure to file an affidavit or to respond as set forth in paragraph (a) of this subsection shall constitute a default.

      (f) In response to an affidavit filed pursuant to paragraph (c) of this subsection, the forfeiting agency may controvert any or all of the assertions made in the affidavit. The affidavit of the forfeiting agency shall be filed within 20 days of the filing of the affidavit filed under paragraph (c) of this subsection. The transferor, conveyor or successor in interest may respond, within five days of the filing of the affidavit of the forfeiting agency, with a supplemental affidavit limited to the matters stated in the affidavit of the forfeiting agency. If the forfeiting agency does not file an affidavit within the time allowed, the transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter.