13-2314.02
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13-2314.02. Racketeering lien; content; filing; notice; effect A. The state, upon filing a civil action under section 13-2314, upon seizure for forfeiture under chapter 39 of this title or upon charging an offense included in the definition of racketeering in section 13-2301, subsection D, paragraph 4 or a violation of section 13-2312, may file a racketeering lien in accordance with this section. A filing fee or other charge is not required for filing a racketeering lien. B. A racketeering lien shall be signed by the attorney general or the county attorney representing the state in the action and shall set forth the following information: 1. The name of the defendant whose property or interest in property is to be subject to the lien, including as the defendant the name of any corporation, partnership, trust or other entity, including nominees, that are owned or controlled by the defendant. 2. In the discretion of the attorney general or county attorney filing the lien, any aliases or fictitious names of the defendant named in the lien. 3. If known to the attorney general or county attorney filing the lien, the present residence or principal place of business and the date of birth of the person named in the lien. 4. A reference to the proceeding pursuant to which the lien is filed, including the name of the court, the title of the action and the court's file number for the proceeding, if any. 5. The name and address of the attorney representing the state in the proceeding pursuant to which the lien is filed. 6. A statement that the notice is being filed pursuant to this section. 7. The amount which the state claims in the action or, with respect to property or an interest in property which the state asserts is subject to forfeiture, a description of the property or interest in property. 8. If known to the attorney general or county attorney filing the lien, a description of property in which the defendant has an interest which is available to satisfy a judgment entered in favor of the state. 9. Such other information as the attorney general or county attorney filing the lien deems appropriate. C. The attorney general or the county attorney filing the lien may amend a lien filed under this section at any time by filing an amended racketeering lien in accordance with this section which identifies the prior lien amended. If the action in which the lien was filed is subsequently dismissed, the attorney general or county attorney filing the lien shall file a notice of release of the lien within twenty days after the final order of dismissal. The notice of release shall be filed with the same agency with which the original lien was filed. D. The attorney general or the county attorney filing the lien shall, as soon as practical after filing a racketeering lien, furnish to any person named in the lien a notice of the filing of the lien. Failure to furnish notice under this subsection does not invalidate or otherwise affect a racketeering lien filed in accordance with this section. E. In an action in which a racketeering lien has been filed covering property, a hearing seeking to release or extinguish the lien may be requested by the person named in the racketeering lien or a person claiming to possess a valid lien or an interest under subsection J of this section with respect to property covered in the lien. F. After the person requests a hearing, the court shall enter an order to show cause setting a hearing date. The hearing date shall be at least five days but not more than ten days from the date the hearing was requested. The order to show cause setting the hearing and a copy of the entire hearing request shall be personally served on the filing agency by the person requesting the hearing as soon as possible but not less than five days before the date of the hearing. The filing agency is entitled to obtain discovery from and demand disclosure pursuant to rule 26.1 of the rules of civil procedure from a person requesting a hearing pursuant to this section. G. If the person filing the request for a hearing pursuant to this section shows that the person possesses a valid lien or interest under subsection J of this section with respect to the property described in the request and either that probable cause does not then exist to support the racketeering lien and the property is not otherwise subject to attachment or encumbrance by the filing agency, the court shall enter an order extinguishing the racketeering lien or releasing the person's property interest, from the racketeering lien or shall enter any other order adequately protecting the person's rights, lien or interest. If the person filing the request for a hearing pursuant to this section establishes that probable cause does not exist to support the racketeering lien or forfeiture action and the lawsuit is not well grounded in fact, the court shall award the person costs and reasonable attorney fees to be assessed against and paid from monies acquired pursuant to sections 13-2314.01 and 13-2314.03. H. A racketeering lien is perfected against interests in personal property by filing the lien with the secretary of state, except that in the case of titled motor vehicles and trailers it shall be filed with the motor vehicle division of the department of transportation. A racketeering lien is perfected against interests in real property by filing the lien with the county recorder of the county in which the real property is located. The state may give such additional notice of the lien as it deems appropriate. I. The filing of a racketeering lien in accordance with this section creates a lien in favor of the state in all of the following: 1. Any interest of the defendant, in real property situated in the county in which the lien is filed, then maintained or thereafter acquired in the name of the defendant identified in the lien. 2. Any interest of the defendant, in personal property situated in this state, then maintained or thereafter acquired in the name of the defendant identified in the lien. 3. Any property identified in the lien to the extent of the defendant's interest therein. J. The filing of a racketeering lien under this section is notice to all persons dealing with the person or property identified in the lien of the state's claim. The lien created in favor of the state in accordance with this section is superior and prior to the claims or interests of any other person, except a person possessing an interest that is exempt from forfeiture under chapter 39 of this title that is: 1. A valid lien perfected prior to the filing of the racketeering lien. 2. In the case of real property, an interest acquired and recorded prior to the filing of the racketeering lien. 3. In the case of personal property, an interest acquired prior to the filing of the racketeering lien. 4. In the case of community property, an interest acquired prior to the filing of the racketeering lien by a spouse whose own personal conduct does not provide a basis for the filing of the racketeering lien. K. Upon entry of judgment in favor of the state, the state may proceed to execute thereon as in the case of any other judgment, except that: 1. In order to preserve the state's lien priority as provided in this section the state shall, in addition to such other notice as is required by law, give at least thirty days' notice of such execution to any person possessing at the time such notice is given an interest recorded subsequent to the date the state's lien was perfected. 2. If a person's property or interest in property has been released from the racketeering lien, the property or interest in property released from the lien shall not be subject to any judgment liens or any order or injunction, receivership, writ, attachment, garnishment or other remedy authorized under section 13-2314 or available under chapter 39 of this title as a result of an act or omission occurring prior to the filing of the released lien and known to the filing agency at the time the lien was filed. L. This section shall not limit the right of the state to obtain any order or injunction, receivership, writ, attachment, garnishment or other remedy authorized under section 13-2314 or appropriate to protect the interests of the state or available under other applicable law, including, without limitation, title 44, chapter 8, article 1 and chapter 39 of this title. |