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Part 100 - Standard Forfeiture Provisions

 
    (725 ILCS 5/Art. 124B Pt. 100 heading) Part 100. Standard Forfeiture Provisions (Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑100)
    Sec. 124B‑100. Definition; "offense". For purposes of this Article, "offense" is defined as follows:
        (1) In the case of forfeiture authorized under

Section 10A‑15 of the Criminal Code of 1961, "offense" means the offense of involuntary servitude, involuntary servitude of a minor, or trafficking of persons for forced labor or services in violation of Section 10A‑10 of that Code.

(2) In the case of forfeiture authorized under

Section 11‑17.1 of the Criminal Code of 1961, "offense" means the offense of keeping a place of juvenile prostitution in violation of Section 11‑17.1 of that Code.

(3) In the case of forfeiture authorized under

Section 11‑19.2 of the Criminal Code of 1961, "offense" means the offense of exploitation of a child in violation of Section 11‑19.2 of that Code.

(4) In the case of forfeiture authorized under

Section 11‑20 of the Criminal Code of 1961, "offense" means the offense of obscenity in violation of that Section.

(5) In the case of forfeiture authorized under

Section 11‑20.1 of the Criminal Code of 1961, "offense" means the offense of child pornography in violation of Section 11‑20.1 of that Code.

(6) In the case of forfeiture authorized under

Section 11‑20.3 of the Criminal Code of 1961, "offense" means the offense of aggravated child pornography in violation of Section 11‑20.3 of that Code.

(7) In the case of forfeiture authorized under

Section 16D‑6 of the Criminal Code of 1961, "offense" means the offense of computer fraud in violation of Section 16D‑5 of that Code.

(8) In the case of forfeiture authorized under

Section 17B‑25 of the Criminal Code of 1961, "offense" means any felony violation of Article 17B of that Code.

(9) In the case of forfeiture authorized under

Section 29D‑65 of the Criminal Code of 1961, "offense" means any offense under Article 29D of that Code.

(10) In the case of forfeiture authorized under

Section 4.01 of the Humane Care for Animals Act or Section 26‑5 of the Criminal Code of 1961, "offense" means any felony offense under either of those Sections.

(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑105)
    Sec. 124B‑105. Definition; "conveyance". In this Article, "conveyance" means a vehicle, vessel, or aircraft.
(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑110)
    Sec. 124B‑110. Definition; "owner". In this Article, "owner" means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest. "Owner" does not include any of the following:
        (1) A person with only a general unsecured interest

in, or claim against, the property or estate of another.

(2) A bailee, unless the bailor is identified and the

bailee shows a colorable legitimate interest in the property seized.

(3) A nominee who exercises no dominion or control

over the property.

(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑115)
    Sec. 124B‑115. Definition; "person". In this Article, "person" means any individual, corporation, partnership, firm, organization, or association.
(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑120)
    Sec. 124B‑120. Definition; "property". In this Article, "property" means:
        (1) Real property, including, without limitation,

land, fixtures or improvements on land, and anything growing on or found in land.

(2) Tangible or intangible personal property,

including, without limitation, rights, privileges, interests, claims, securities, and money.

"Property" includes any leasehold or possessory interest

and, in the case of real property, includes a beneficial interest in a land trust.

(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑125)
    Sec. 124B‑125. Real property exempt from forfeiture.
    (a) An interest in real property is exempt from forfeiture under this Article if its owner or interest holder establishes by a preponderance of evidence that he or she meets all of the following requirements:
        (1) He or she is not legally accountable for the

conduct giving rise to the forfeiture, or did not solicit, conspire, or attempt to commit the conduct giving rise to the forfeiture.

(2) He or she had not acquired and did not stand to

acquire substantial proceeds from the conduct giving rise to the forfeiture other than as an interest holder in an arms‑length commercial transaction.

(3) He or she does not hold the property for the

benefit of or as a nominee for any person whose conduct gave rise to the forfeiture, and, if he or she acquired the interest through any such person, he or she acquired it as a bona fide purchaser for value without knowingly taking part in the conduct giving rise to the forfeiture.

(4) He or she acquired the interest before a notice

of seizure for forfeiture or a lis pendens notice with respect to the property was filed in the office of the recorder of deeds of the county in which the property is located and either:

(A) acquired the interest before the commencement

of the conduct giving rise to the forfeiture, and the person whose conduct gave rise to the forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or

(B) acquired the interest after the commencement

of the conduct giving rise to the forfeiture, and he or she acquired the interest as a mortgagee, secured creditor, lienholder, or bona fide purchaser for value without knowledge of the conduct that gave rise to the forfeiture.

(5) With respect to a property interest in existence

at the time the illegal conduct giving rise to the forfeiture took place, he or she either:

(A) did not know of the conduct giving rise to

the forfeiture; or

(B) upon learning of the conduct giving rise to

the forfeiture, did all that reasonably could be expected under the circumstances to terminate that use of the property.

(7) The property is not a type of property,

possession of which is otherwise in violation of law.

(b) For purposes of paragraph (5) of subsection (a), ways

in which a person may show that he or she did all that reasonably could be expected include demonstrating that he or she, to the extent permitted by law, did either of the following:

(1) Gave timely notice to an appropriate law

enforcement agency of information that led the person to know that the conduct giving rise to a forfeiture would occur or had occurred.

(2) In a timely fashion revoked or made a good faith

attempt to revoke permission for those engaging in the conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.

A person is not required by this subsection (b) to take

steps that the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical danger.

(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑130)
    Sec. 124B‑130. Personal property exempt from forfeiture.
    (a) An interest in personal property is exempt from forfeiture under this Article if its owner or interest holder establishes by a preponderance of evidence that he or she meets all of the following requirements:
        (1) He or she is not legally accountable for the

conduct giving rise to the forfeiture, did not acquiesce in it, and did not know and could not reasonably have known of the conduct or that the conduct was likely to occur.

(2) He or she had not acquired and did not stand to

acquire substantial proceeds from the conduct giving rise to the forfeiture other than as an interest holder in an arms‑length commercial transaction.

(3) He or she does not hold the property for the

benefit of or as a nominee for any person whose conduct gave rise to the forfeiture, and, if he or she acquired the interest through any such person, he or she acquired it as a bona fide purchaser for value without knowingly taking part in the conduct giving rise to the forfeiture.

(4) He or she acquired the interest without knowledge

of the seizure of the property for forfeiture and either:

(A) acquired the interest before the commencement

of the conduct giving rise to the forfeiture, and the person whose conduct gave rise to the forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or

(B) acquired the interest after the commencement

of the conduct giving rise to the forfeiture, and he or she acquired the interest as a mortgagee, secured creditor, lienholder, or bona fide purchaser for value without knowledge of the conduct that gave rise to the forfeiture.

(5) With respect to a property interest in existence

at the time the illegal conduct giving rise to the forfeiture took place, he or she either:

(A) did not know of the conduct giving rise to

the forfeiture; or

(B) upon learning of the conduct giving rise to

the forfeiture, did all that reasonably could be expected under the circumstances to terminate that use of the property.

(6) With respect to conveyances, he or she did not

hold the property jointly or in common with a person whose conduct gave rise to the forfeiture.

(7) The property is not a type of property,

possession of which is otherwise in violation of law.

(b) For purposes of paragraph (5) of subsection (a), ways

in which a person may show that he or she did all that reasonably could be expected include demonstrating that he or she, to the extent permitted by law, did either of the following:

(1) Gave timely notice to an appropriate law

enforcement agency of information that led the person to know that the conduct giving rise to a forfeiture would occur or had occurred.

(2) In a timely fashion revoked or made a good faith

attempt to revoke permission for those engaging in the conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.

A person is not required by this subsection (b) to take

steps that the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical danger.

(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑135)
    Sec. 124B‑135. Burden of proof of exemption. It is not necessary for the State to negate any exemption in this Article in any complaint or other pleading or in any trial, hearing, or other proceeding under this Article. The burden of proof of any exemption is upon the person claiming the exemption.
(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑140)
    Sec. 124B‑140. Court order with respect to innocent owner. If the court determines, in accordance with Sections 124B‑125 through 124B‑135, that an innocent owner has a partial interest in property otherwise subject to forfeiture, or a joint tenancy or tenancy by the entirety in that property, the court may enter an appropriate order doing any of the following:
        (1) Severing and releasing the property.
        (2) Transferring the property to the State with a

provision that the State compensate the innocent owner to the extent of his or her ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets.

(3) Permitting the innocent owner to retain the

property subject to a lien in favor of the State to the extent of the forfeitable interest in the property.

(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑145)
    Sec. 124B‑145. Property constituting attorney's fees; forfeiture not applicable. Nothing in this Article applies to property that constitutes reasonable bona fide attorney's fees paid to an attorney for services rendered or to be rendered in a forfeiture proceeding under this Article, or in a criminal proceeding relating directly to a forfeiture proceeding under this Article, if (i) the property was paid before its seizure and before the issuance of any seizure warrant or court order prohibiting transfer of the property and (ii) the attorney, at the time he or she received the property, did not know that it was property subject to forfeiture under this Article.
(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑150)
    Sec. 124B‑150. Protective order; probable cause.
    (a) Upon application of the State, the circuit court presiding over the trial of the person or persons charged with the offense giving rise to forfeiture may enter a restraining order or injunction, or take other appropriate action, to preserve the availability of property for forfeiture under this Article. Before entering such an order or taking such action, the court shall first determine the following:
        (1) Whether there is probable cause to believe that

the person or persons so charged have committed the offense.

(2) Whether the property is subject to forfeiture

under this Article.

(b) In order to make the determinations of probable cause

required under subsection (a), the court shall conduct a hearing without a jury. In that hearing, the State must establish both of the following:

(1) There is probable cause that the person or

persons charged have committed the offense.

(2) There is probable cause that property may be

subject to forfeiture under this Article.

(c) The court may conduct the hearing under subsection

(b) simultaneously with a preliminary hearing if the prosecution is commenced by information or complaint. The court may conduct the hearing under subsection (b) at any stage in the criminal proceedings upon the State's motion.

(d) The court may accept a finding of probable cause at a

preliminary hearing following the filing of an information charging the offense or following the return of an indictment by a grand jury charging the offense as sufficient evidence of probable cause as required under paragraph (1) of subsection (b).

(e) Upon making a finding of probable cause as required

under this Section, the circuit court shall enter a restraining order or injunction, or take other appropriate action, as necessary to ensure that the property is not removed from the court's jurisdiction and is not concealed, destroyed, or otherwise disposed of by the property owner or interest holder before a forfeiture hearing under this Article.

(f) The Attorney General or State's Attorney shall file a

certified copy of the restraining order, injunction, or other prohibition with the recorder of deeds or registrar of titles of each county where any property of the defendant subject to forfeiture is located.

(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑155)
    Sec. 124B‑155. Rights of certain parties unaffected by protective order; release of property.
    (a) A restraining order or injunction entered, or other action taken, by the court under Section 124B‑150 does not affect the rights of any bona fide purchaser, mortgagee, judgment creditor, or other lienholder that arose before the date on which a certified copy of the restraining order, injunction, or other prohibition was filed in accordance with subsection (f) of Section 124B‑150.
    (b) At any time, upon verified petition by the defendant or by an innocent owner or innocent bona fide third party lienholder who neither had knowledge of, nor consented to, the illegal act or omission, the court may conduct a hearing to release all or portions of any property that the court previously determined to be subject to forfeiture or subject to any restraining order, injunction, or other action. For good cause shown and in the court's sound discretion, the court may release the property to the defendant or innocent owner or innocent bona fide third party lienholder who neither had knowledge of, nor consented to, the illegal act or omission.
(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑160)
    Sec. 124B‑160. Petition for forfeiture; forfeiture hearing; burden of proof.
    (a) The Attorney General or State's Attorney may file a petition for forfeiture of property in connection with an offense as defined in this Article, and, within a reasonable time after sentencing, the court shall conduct a hearing to determine whether any property is subject to forfeiture under this Article. Every person with any property interest in the property alleged to be subject to forfeiture may appear as a party and present evidence at the hearing.
    (b) At the forfeiture hearing, the State has the burden of establishing, by a preponderance of the evidence, that the property is subject to forfeiture under this Article.
(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑165)
    Sec. 124B‑165. Order of forfeiture; sale of forfeited property; publication of notice; challenge to forfeiture.
    (a) Upon the court's determination that property is subject to forfeiture, the court shall enter an order of forfeiture with respect to the property at issue. Except as provided in Section 124B‑705, the order shall authorize the Attorney General or State's Attorney to seize all property declared forfeited under this Article (if the property has not already been seized) upon terms and conditions the court deems proper. The Attorney General or State's Attorney may then sell the forfeited property unless the court determines that the property is required by law to be destroyed or is harmful to the public.
    (b) Following the entry of the order of forfeiture, the Attorney General or State's Attorney shall cause publication of notice of the order and his or her intent to dispose of the property. Publication shall be in a newspaper of general circulation in the county where the property was seized, for a period of 3 successive weeks.
    (c) Within 30 days after the publication, any person may petition the court to adjudicate the validity of his or her interest in the property and whether the interest is protected under this Article.
(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑170)
    Sec. 124B‑170. Judicial review.
    (a) Within 30 days after publication of the notice under Section 124B‑165, any person claiming an interest in the property declared forfeited may file a verified claim with the court expressing his or her interest in the property. The claim must set forth the following:
        (1) The caption of the proceedings as set forth in

the notice of order of forfeiture.

(2) The claimant's name and address.         (3) The nature and extent of the claimant's interest

in the property.

(4) The circumstances of the claimant's acquisition

of the interest in the property, including the date of the transfer and the identity of the transferor.

(5) The names and addresses of all other persons

known by the claimant to have an interest in the property.

(6) The specific provision of law relied on in

asserting that the property is not subject to forfeiture.

(7) All essential facts supporting each assertion.         (8) The relief sought by the claimant.     (b) The claim must be accompanied by a cost bond in the

form of a cashier's check payable to the clerk of the court in the amount of 10% of the reasonable value of the property as alleged by the Attorney General or State's Attorney or the amount of $100, whichever is greater, conditioned upon the claimant's payment, in the case of forfeiture, of all costs and expenses of the proceeding under this Section.

(c) Upon the filing of a claim and cost bond as provided

in this Section, the court shall determine whether the property is subject to forfeiture in accordance with this Article. If none of the seized property is declared forfeited in a proceeding under this Section, then, unless the court orders otherwise, the clerk of the court shall return to the claimant 90% of the amount deposited with the clerk as a cost bond under this Section. If any of the seized property is declared forfeited in a proceeding under this Section, then the clerk of the court shall transfer 90% of the amount deposited with the clerk as a cost bond under this Section to the prosecuting authority. In either case, the clerk shall retain the remaining 10% of the amount deposited as costs for the proceeding under this Section.

(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑175)
    Sec. 124B‑175. Distribution of forfeited moneys and proceeds from sale of forfeited property. All moneys forfeited under this Article, together with the proceeds from the sale of all property forfeited under this Article, shall be distributed as set forth in this Article.
(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑180)
    Sec. 124B‑180. Segregation of moneys from sale proceeds for certain purposes. Before any distribution under Section 124B‑175 or as otherwise prescribed by law, the court may order the Attorney General or State's Attorney to segregate moneys from the proceeds of the sale sufficient to do any of the following:
        (1) Satisfy any order of restitution, as the court

may deem appropriate.

(2) Satisfy any legal right, title, or interest that

the court deems superior to any right, title, or interest of the defendant at the time of the commission of the acts that gave rise to forfeiture under this Article.

(3) Satisfy any bona fide purchaser for value of the

right, title, or interest in the property who was without reasonable notice that the property was subject to forfeiture.

(Source: P.A. 96‑712, eff. 1‑1‑10.)

    (725 ILCS 5/124B‑190)
    Sec. 124B‑190. Construction. It is the intent of the General Assembly that the forfeiture provisions of this Article be liberally construed so as to effect their purpose. The forfeiture of property and other remedies under this Article shall be considered to be in addition to, and not exclusive of, any sentence or other remedy provided by law.
(Source: P.A. 96‑712, eff. 1‑1‑10.)