In Rem Forfeiture

  1. Law
  2. Georgia Code
  3. Civil Practice
  4. Uniform Civil Forfeiture Procedure Act
  5. In Rem Forfeiture

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  1. In actions in rem, the property which is the subject of the complaint for forfeiture shall be named as the defendant. The complaint shall be verified on oath or affirmation by a duly authorized agent of the state in a manner consistent with Article 5 of Chapter 10 of this title. Such complaint shall describe the property with reasonable particularity; state that it is located within the county or will be located within the county during the pendency of the action; state its present custodian; state the name of the owner or interest holder, if known; allege the essential elements of the criminal violation which is claimed to exist; state the place of seizure, if the property was seized; and conclude with a prayer of due process to enforce the forfeiture.
    1. A copy of the complaint and summons shall be served on any person known to be an owner or interest holder and any person who is in possession of the property.
    2. Issuance of the summons, form of the summons, and service of the complaint and summons shall be as provided in subsections (a), (b), (c), and (e) of Code Section 9-11-4.
    3. If real property is the subject of the complaint for forfeiture or the owner or interest holder is unknown or resides out of this state or departs this state or cannot after due diligence be found within this state or conceals himself or herself so as to avoid service, a copy of the notice of the complaint for forfeiture shall be published once a week for two consecutive weeks in the legal organ of the county in which the complaint for forfeiture is pending. Such publication shall be deemed notice to any and all persons having an interest in or right affected by such complaint for forfeiture and from any sale of the property resulting therefrom, but shall not constitute notice to an interest holder unless that person is unknown or resides out of this state or departs this state or cannot after due diligence be found within this state or conceals himself or herself to avoid service.
    4. If tangible property which has not been seized is the subject of the complaint for forfeiture, the court may order the sheriff or another law enforcement officer to take possession of the property. If the character or situation of the property is such that the taking of actual possession is impracticable, the sheriff shall execute process by affixing a copy of the complaint and summons to the property in a conspicuous place and by leaving another copy of the complaint and summons with the person having possession or his or her agent. In cases involving a vessel or aircraft, the sheriff or other law enforcement officer shall be authorized to make a written request with the appropriate governmental agency not to permit the departure of such vessel or aircraft until notified by the sheriff or the sheriff's deputy that the vessel or aircraft has been released.
    1. An owner of or interest holder in the property may file an answer asserting a claim against the property in the action in rem. Any such answer shall be filed within 30 days after the service of the summons and complaint. If service is made by publication and personal service has not been made, an owner or interest holder shall file an answer within 30 days of the date of final publication. An answer shall be verified by the owner or interest holder under penalty of perjury. In addition to complying with the general rules applicable to filing an answer in civil actions as set forth in Article 3 of Chapter 11 of this title, the answer shall set forth:
      1. The name of the claimant;
      2. The address at which the claimant resides;
      3. A description of the claimant's interest in the property;
      4. A description of the circumstances of the claimant's obtaining an interest in the property and, to the best of the claimant's knowledge, the date the claimant obtained the interest and the name of the person or entity that transferred the interest to the claimant;
      5. The nature of the relationship between the claimant and the person who possessed the property at the time of the seizure;
      6. A copy of any documentation in the claimant's possession supporting his or her answer; and
      7. Any additional facts supporting the claimant's answer.
    2. If the state attorney determines that an answer is deficient in some manner, he or she may file a motion for a more definite statement. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 15 days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. If a motion for a more definite statement is filed, the time requirements for a trial set forth in subsection (f) of this Code section shall not commence until a sufficient answer has been filed.
  4. In addition to any injured person's right of intervention pursuant to Code Section 9-16-16, any owner or interest holder or person in possession of the property who suffers a pecuniary loss or physical injury due to a violation of Code Section 16-5-46, Article 4 or 5 of Chapter 8 of Title 16, or Chapter 14 of Title 16 may be permitted to intervene in any civil action brought pursuant to this Code section or Code Section 9-16-13 as provided by Chapter 11 of this title.
  5. If at the expiration of the period set forth in subsection (c) of this Code section no answer has been filed, the state attorney may seek a default judgment as provided in Code Section 9-11-55 and, if granted, the court shall order the disposition of the seized property as provided for in Code Section 9-16-19.
  6. If an answer is filed, a bench trial shall be held within 60 days after the last claimant was served with the complaint; provided, however, that such trial may be continued by the court for good cause shown. Discovery as provided for in Article 5 of Chapter 11 of this title shall not be allowed; however, prior to trial, any party may apply to the court to allow for such discovery, and if discovery is allowed, the court may provide for the scope and duration of discovery and may continue the trial to a date not more than 60 days after the end of the discovery period unless continued by the court for good cause shown.
  7. An action in rem may be brought by the state attorney in addition to or in lieu of any other in rem or in personam action brought pursuant to this chapter.

(Code 1981, §9-16-12, enacted by Ga. L. 2015, p. 693, § 1-1/HB 233.)


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