2006 Louisiana Laws - RS 15:85 — Forfeiture; procedure; notice; enforcement; and collection

§85.  Forfeiture; procedure; notice; enforcement; and collection

All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana shall be forfeited and collected as follows:

(1)  Failure to appear and answer.  If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.

(2)  Signing of the judgment of bond forfeiture.  Following the defendant's failure to appear, the court shall sign a written judgment of bond forfeiture.

(3)  Notice of judgment.

(a)  After entering the fact of the signing of the judgment of bond forfeiture in the court minutes, the clerk of court shall promptly mail notice of the signing of the judgment of bond forfeiture.  The notice of the signing of the judgment shall be mailed by United States certified mail with return receipt to all of the following:

(i)  The defendant at the address designated pursuant to Code of Criminal Procedure Art. 322.

(ii)  The personal sureties at the addresses designated pursuant to Code of Criminal Procedure Art. 322.

(iii)  The agent or bondsman who posted the bond for the commercial sureties at the address designated pursuant to Code of Criminal Procedure Art. 322.

(iv)  The commercial sureties at the addresses designated pursuant to Code of Criminal Procedure Art. 322.  Notice to the commercial sureties shall include the power of attorney number used to execute the bond without which the bond obligation of the commercial surety shall be suspended until the power of attorney number is supplied provided the commercial surety provides notice to the clerk of court who mailed the notice to the surety of the failure to include such number in the notice by certified mail not later than thirty days following receipt of notice of the judgment. If the power of attorney number is not provided to the commercial surety within thirty days following the date of receipt by the clerk of court of the notice that it was not included in the notice of the judgment, the commercial surety shall be released from the bond obligation.

(b)  After mailing the notice of the signing of the judgment of bond forfeiture, the clerk of court shall execute an affidavit of the mailing and place the affidavit and the return receipts in the record.

(c)  Failure to mail proper notice of the signing of the judgment within sixty days after the defendant's failure to appear shall release the sureties of any and all obligations under the bond.

(d)  The defendant shall reimburse the clerk of court for all postage costs and other costs in connection with Items (a)(i) through (iv) of this Paragraph.

(4)  Recordation of judgment.  After mailing notice of the signing of the judgment of bond forfeiture, the district attorney shall cause the judgment to be recorded in every parish in which he thinks the recordation is proper.  Every such recordation shall be without cost and shall operate as a judicial mortgage against the defendant and all his sureties.

(5)  Summary proceedings.  The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture.  Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred eighty days of mailing the notice of the signing of the judgment of bond forfeiture.  The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.

(6)  Appeals.

(a)  The defendant and his sureties shall have the right to an appeal that suspends the effect or the execution of the judgment of bond forfeiture.  The security to be furnished for this suspensive appeal shall be equal to the bail obligation.

(b)  The defendant and his sureties shall have the right to a devolutive appeal of the judgment of bond forfeiture.

(c)  All appeals shall be to the appellate court having general civil appellate jurisdiction over the court issuing the judgment of bond forfeiture.

(7)  Enforcement and collection of judgment.  No judgment of bond forfeiture rendered on or after August 15, 1997, shall be enforced or collected until ten days after the expiration of six months after the mailing of proper notice of the signing of the judgment of bond forfeiture for bonds which have a face value under fifty thousand dollars, or until ten days after the expiration of nine months for bonds which have a face value of fifty thousand dollars or more.  The timely filing of a suspensive appeal shall suspend the enforcement or collection of the judgment of the bond forfeiture.  In addition, the court may provide by court rule for the filing of an offset claim against the principal with the secretary of the Department of Revenue, in accordance with R.S. 47:299.1 through 299.20.  If after six months and ten days from the mailing of proper notice of the signing of the judgment for bonds which have a face value under fifty thousand dollars, or if after nine months and ten days for bonds which have a face value of fifty thousand dollars or more, a judgment of bond forfeiture against a commercial surety company has not been suspensively appealed nor satisfied or proceedings challenging the bond forfeiture have not been timely filed, the prosecuting attorney may either file a rule to show cause with the commissioner of insurance in accordance with R.S. 22:658.1 or collect the judgment in the same manner as a civil judgment.

(8)  Collection by insurance commissioner.  Within thirty days of the filing of a rule to show cause by the prosecuting attorney with the commissioner of insurance, the commissioner of insurance shall notify the insurance company, the surety or Lloyd's association, in writing, at the address of the home office of that organization by certified mail, setting a time, place, and date of the commissioner's hearing, which shall not be more than sixty days from the date of receipt of notice from the prosecuting attorney.  If after the hearing, the insurance commissioner finds that there is no just cause or legal reason for the surety's nonpayment, the commissioner shall take any action deemed necessary for collection of the amount owed, including suspension of the surety from doing business in the state of Louisiana.

(9)  Nullity actions.  Nullity actions pursuant to Code of Civil Procedure Art. 2001 et seq. not filed within the sixty days provided for filing summary proceedings shall be brought by the use of ordinary civil proceedings.

(10)  Satisfaction of judgment of bond forfeiture.  (a)  For bonds which have a face value under fifty thousand dollars, any judgment forfeiting the appearance bond rendered according to this Section shall at any time, within six months, after mailing of the notice of the signing of the judgment of bond forfeiture, be fully satisfied and set aside upon the surrender or the appearance of the defendant.  The appearance of the defendant shall operate as a satisfaction of the judgment, and the surrender shall operate as a satisfaction of the judgment and shall fully and finally relieve the surety of any and all obligations under the bond.  Any judgment forfeiting the appearance bond rendered according to this Section shall at any time, within ten days after the expiration of the six-month period provided to surrender the defendant, be fully satisfied by the payment of the amount of the bail obligation without incurring any interest, costs, or fees.

(b)(i)  For bonds which have a face value of fifty thousand dollars or more, any judgment forfeiting the appearance bond rendered according to this Section shall at any time within six months after mailing of the notice of the signing of the judgment of bond forfeiture be fully satisfied and set aside upon the surrender or the appearance of the defendant.  The appearance of the defendant shall operate as a satisfaction of the judgment and shall fully and finally relieve the surety of any and all obligations under the bond.  Any judgment forfeiting the appearance bond rendered according to this Section shall at any time, within ten days after the expiration of the six-month period provided to surrender the defendant, be fully satisfied by the payment of the amount of the bail obligation without incurring any interest, costs, or fees.

(ii)  Any judgment forfeiting the appearance bond rendered according to this Section shall at any time more than six months but within nine months after mailing of the notice for the signing of the judgment of bond forfeiture, be satisfied and set aside upon the surrender or the appearance of the defendant, and the payment in cash of ten percent of the face amount of the bond.  The appearance and payment of ten percent in cash of the face amount of the bond shall operate as a satisfaction of the judgment and shall fully and finally relieve the surety of any and all obligations under the bond.  Any judgment forfeiting the appearance bond rendered according to this Section shall, at any time within ten days after the expiration of the nine-month period provided to surrender the defendant, be fully satisfied by the payment of the amount of the bail obligation without incurring any interest, costs, or fees.

(11)  Failure to satisfy judgment of bond forfeiture.

(a)  If a judgment of bond forfeiture rendered after June 22, 1993, against a commercial surety company has not been satisfied within two hundred ten days from mailing the notice of the signing of the judgment of bond forfeiture for bonds which have a face value under fifty thousand dollars, or within four hundred days from mailing the notice of the signing of the judgment of bond forfeiture for bonds which have a face value of fifty thousand dollars or more, nor has a suspensive appeal or other proceeding challenging the bond forfeiture been timely filed, the prosecuting attorney may file with the appropriate court a rule to show cause why that commercial surety company should not be prohibited from executing criminal bail bonds before the court issuing the judgment of bond forfeiture.  The appropriate court is the court where the bond is posted, whether in a district court or a court other than a district court composed of more than one judge.  If the appropriate court is not a district court, it shall sit en banc on such a rule to show cause.  If the bond is posted in a court other than a district court and composed of only one judgeship position, then the rule shall be filed in the appropriate district court.

(b)  At the rule to show cause, the court may consider only issues which would interrupt the enforceability of the judgment.  Should the court find:

(i)  A judgment of bond forfeiture has been rendered after June 22, 1993, against the commercial surety;

(ii)  Proper notice pursuant to this Section has been mailed;

(iii)  No suspensive appeal has been taken;

(iv)  The defendant has neither been surrendered nor appeared within six months of mailing of the notice of the signing of the judgment of bond forfeiture for bonds which have a face value of fifty thousand dollars or more, and the defendant has neither been surrendered together with ten percent of the total amount of the bond or appeared together with cash payment of ten percent of the total amount of the bond, more than six months but within nine months, of the mailing of the notice of the signing of the judgment of bond forfeiture;

(v)  Two hundred ten days have passed since the mailing of proper notice of the signing of the judgment of bond forfeiture for bonds which have a face value under fifty thousand dollars, or four hundred days have passed since the mailing of proper notice of the signing of the judgment of bond forfeiture for bonds which have a face value of fifty thousand dollars or more; and

(vi)  The judgment of bond forfeiture has not been satisfied by payment of the full amount for bonds which have a face value under fifty thousand dollars, or has not been satisfied by the surrender or the appearance of the defendant together with payment in cash of ten percent of the total bond amount for bonds which have a face value of fifty thousand dollars or more, if applicable, then the court may issue an order enjoining the commercial surety company from posting criminal bail bonds before the court issuing the judgment of bond forfeiture if the judgment is not satisfied within the ten days.

(c)  The burden of proof at the hearing shall be upon the commercial surety by a preponderance of evidence and shall be limited to documents contained in the official court record where the judgment was rendered.  The surety company may use evidence not contained in the record to show that it did not receive post-forfeiture notice or the post-forfeiture notice required pursuant to this Section was not properly mailed.

(12)  Cumulative actions.  When a surety has cause to bring an action in nullity or to set aside a bond forfeiture in two or more cases that are similarly situated by facts and legal issues, he may file such actions as one cumulative action, in summary proceedings and in the section of the criminal court where those cases are pending pursuant to R.S. 15:85(5), Code of Criminal Procedure Article 345(I) or (J), or an ordinary civil action pursuant to R.S. 15:85(9) when such action is within the jurisdiction of the court and in the proper venue.  All the actions cumulated must be mutually consistent and employ the same form of procedure.  The surety has the burden of proving that the accumulation of the actions is appropriate and in the interest of justice.

(13)  Improper cumulation effect.  When the court lacks jurisdiction of or when venue is improper as to one of the actions cumulated, that action shall be dismissed.  When the cumulation is improper for any other reason, the court may do either of the following:

(a)  Order separate trials of the actions.

(b)  Order the moving party to elect which action or actions he shall proceed with and to amend his pleadings so as to delete therefrom all allegations relating to the action or actions which he elects to discontinue.  The penalty for noncompliance with an order to amend is a dismissal of the entire cumulative action proceeding.

Acts 1966, No. 311 §2, eff. Jan.  1, 1967.  Amended by Acts 1976, No. 579, §1; Acts 1979, No. 786, §1; Acts 1980, No. 639, §1; Acts 1982, No. 357, §1; Acts 1987, No. 728, §2; Acts 1987, No. 923, §1; Acts 1989, No. 191, §1; Acts 1990, No. 92, §1; Acts 1990, No. 520, §1; Acts 1993, No. 834, §4, eff. June 22, 1993; Acts 1994, 3rd Ex. Sess., No. 52, §3, eff. Sept. 1, 1994; Acts 1997, No. 813, §1; Acts 1997, No. 815, §1; Acts 2001, No. 107, §1; Acts 2006, No. 466, §1, eff. June 15, 2006; Acts 2006, No. 699, §1; Acts 2006, No. 735, §1.

NOTE:  Section 2 of Acts 2006, No. 699, provides that the provisions of the Act shall apply only to actions filed on or after Aug. 15, 2006.  Actions pending before Aug. 15, 2006, shall be governed by prior law.