CHAPTER 2. CIVIL REMEDIES FOR RACKETEERING ACTIVITY
IC 34-24-2
Chapter 2. Civil Remedies for Racketeering Activity
IC 34-24-2-1
Injunctive relief from corrupt business influence; action by
prosecuting attorney
Sec. 1. The prosecuting attorney in a county in which the violation
occurs may bring an action under this section to enjoin a violation of
IC 35-45-6-2 (corrupt business influence). An action under this
section may be brought in any circuit or superior court in a county in
which the violation occurs. If the court finds by a preponderance of
the evidence that a violation of IC 35-45-6-2 has occurred, the court
may:
(1) order a defendant to divest the defendant of any interest in
any enterprise or property;
(2) impose reasonable restrictions upon the future activities or
investments of a defendant, including prohibiting a defendant
from engaging in the same type of endeavor as the enterprise in
which the defendant was engaged in violation of IC 35-45-6-2;
(3) order the dissolution or reorganization of any enterprise;
(4) order the suspension or revocation of a license, permit, or
prior approval granted to any enterprise by any agency of the
state;
(5) order the forfeiture of the charter of a corporation organized
under the laws of Indiana, or the revocation of a certificate
authorizing a foreign corporation to conduct business within the
state, upon finding that:
(A) the board of directors or a managerial agent acting on
behalf of the corporation, in conducting the affairs of the
corporation, has authorized or engaged in conduct in
violation of IC 35-45-6-2; and
(B) for the prevention of future criminal activity, the public
interest requires the charter of the corporation be forfeited
and the corporation dissolved or the certificate revoked; and
(6) make any other order or judgment that the court considers
appropriate.
In any order or judgment made by the court under this section, the
judge shall make due provision for the rights of innocent persons,
including a person having any rights, title, or interest of record in any
of the property.
As added by P.L.1-1998, SEC.19.
IC 34-24-2-2
Action for forfeiture of property incident to corrupt business
influence
Sec. 2. (a) The prosecuting attorney in a county in which any of
the property is located may bring an action for the forfeiture of any
property:
(1) used in the course of;
(2) intended for use in the course of;
(3) derived from; or
(4) realized through;
conduct in violation of IC 35-45-6-2.
(b) The inspector general may bring an action for forfeiture in
accordance with IC 4-2-7-6 in a county where property that is:
(1) derived from; or
(2) realized through;
misfeasance, malfeasance, nonfeasance, misappropriation, fraud, or
other misconduct that has resulted in a financial loss to the state is
located.
(c) An action for forfeiture may be brought in any circuit or
superior court in a county in which any of the property is located.
(d) Upon a showing by a preponderance of the evidence that:
(1) property described in subsection (a) was used in the course
of, intended for use in the course of, derived from, or realized
through conduct in violation of IC 35-45-6-2; or
(2) property described in subsection (b) was derived from or
realized through conduct described in subsection (b);
the court shall, subject to the right, title, or interest of record of any
other party in the property determined under section 4 of this chapter,
order the property forfeited to the state and specify the manner of
disposition of the property, including the manner of disposition if the
property is not transferable for value.
(e) The court shall order forfeitures and dispositions under this
section:
(1) with due provision for the rights of innocent persons; and
(2) as provided under section 4 of this chapter.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,
SEC.40.
IC 34-24-2-3
Order to have property subject to forfeiture seized
Sec. 3. When an action is filed under section 2 of this chapter, the
prosecuting attorney or the inspector general may move for an order
to have property subject to forfeiture seized by a law enforcement
agency. The judge shall issue such an order upon a showing of
probable cause to believe that:
(1) a violation of IC 35-45-6-2, in the case of property described
in section 2(a) of this chapter; or
(2) conduct described in section 2(b) of this chapter, in case of
property described in section 2(b) of this chapter;
has occurred.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,
SEC.41.
IC 34-24-2-4
Seizure of property subject to forfeiture; requisites; custody;
limitation of actions
Sec. 4. (a) Property subject to forfeiture under this chapter shall
be seized by a law enforcement officer upon court order. Seizure may
be made without a court order only if:
(1) the seizure is incident to a lawful arrest or search, or to an
inspection under an administrative inspection warrant; or
(2) the property subject to seizure has been the subject of a
prior judgment in favor of the state in a forfeiture proceeding
under this chapter (or IC 34-4-30.5 before its repeal).
(b) When property is seized under subsection (a), pending
forfeiture and final disposition, the law enforcement officer making
the seizure may:
(1) place the property under seal;
(2) remove the property to a place designated by the court; or
(3) require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(c) Property seized under subsection (a) (or IC 34-4-30.5-4(a)
before its repeal) is not subject to replevin, but is considered to be in
the custody of the law enforcement officer making the seizure,
subject only to order of the court. However, if a seizure of property
is made in accordance with subsection (a), the prosecuting attorney
or the inspector general shall bring an action for forfeiture under
section 2 of this chapter within:
(1) thirty (30) days after receiving notice from any person
claiming a right, title, or interest in the property; or
(2) one hundred eighty (180) days after the property is seized;
whichever occurs first.
(d) If an action under subsection (c) is not filed within thirty (30)
days after receiving notice from any person claiming a right, title, or
interest in the property, the claimant:
(1) is entitled to file a complaint seeking:
(A) replevin;
(B) foreclosure; or
(C) other appropriate remedy; and
(2) shall immediately obtain a hearing on the complaint as
provided in subsection (f).
If an action is not filed within one hundred eighty (180) days after
the date of the seizure, and the property has not been previously
released to an innocent person under section 5 of this chapter (or
IC 34-4-30.5-4.5 before its repeal), the law enforcement agency
whose officer made the seizure shall return the property to its owner.
(e) If property is seized under subsection (a) (or IC 34-4-30.5-4(a)
before its repeal) and the property is a vehicle or real property, the
prosecuting attorney or the inspector general shall serve, within thirty
(30) days after the date the property is seized and as provided by the
Indiana Rules of Trial Procedure, notice of seizure upon each person
whose right, title, or interest is of record in the bureau of motor
vehicles, in the county recorder's office, or other office authorized to
receive or record vehicle or real property ownership interests.
(f) The person whose right, title, or interest is of record may at
any time file a complaint seeking:
(1) replevin;
(2) foreclosure; or
(3) another appropriate remedy;
to which the state may answer in forfeiture within the appropriate
statutory period. The court shall promptly set the matter for a
hearing, and in the case of replevin or foreclosure, the court shall set
the hearing as provided by the applicable statutory provisions.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,
SEC.42.
IC 34-24-2-5
Rights of secured party in property subject to forfeiture
Sec. 5. (a) If a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract did not know
the property was the object of corrupt business influence or conduct
described in section 2(b) of this chapter, the court shall determine
whether the secured interest is equal to or in excess of the appraised
value of the property.
(b) Appraised value is to be determined as of the date of judgment
on a wholesale basis by:
(1) agreement between the secured party and the prosecuting
attorney; or
(2) the inheritance tax appraiser for the county in which the
action is brought.
(c) If the amount due to the secured party is equal to or greater
than the appraised value of the property, the court shall order the
property released to the secured party.
(d) If the amount due the secured party is less than the appraised
value of the property, the holder of the interest may pay into the
court an amount equal to the owner's equity, which shall be the
difference between the appraised value and the amount of the lien,
mortgage, security interest, or interest under a conditional sales
contract. Upon payment, the state or unit, or both, shall relinquish all
claims to the property.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,
SEC.43.
IC 34-24-2-6
Action of aggrieved person for injunctive relief and damages from
corrupt business influence; jury trial; right to forfeited property;
state as aggrieved person
Sec. 6. (a) An aggrieved person may, in addition to proceeding
under section 4 of this chapter, bring an action for injunctive relief
from corrupt business influence in a circuit or superior court in the
county of the aggrieved person's residence, or in a county where any
of the affected property or the affected enterprise is located. If the
court finds, through a preponderance of the evidence, that the
aggrieved person is suffering from corrupt business influence, the
court shall make an appropriate order for injunctive relief. This order
must be made in accordance with the principles that govern the
granting of injunctive relief from threatened loss or damage in other
civil cases, except that a showing of special or irreparable damage to
the aggrieved person is not required. The court may order injunctive
relief only after the execution of a bond by the aggrieved person for
an injunction improvidently granted, in an amount established by the
court. In addition, the court may order a temporary restraining order
or a preliminary injunction, but only after a showing of immediate
danger of significant loss or damage to the aggrieved person.
(b) An aggrieved person may bring an action against a person who
has violated IC 35-45-6-2 in a circuit or superior court in the county
of the aggrieved person's residence, or in a county where any of the
affected property or the affected enterprise is located, for damages
suffered as a result of corrupt business influence. Upon a showing by
a preponderance of the evidence that the aggrieved person has been
damaged by corrupt business influence, the court shall order the
person causing the damage through a violation of IC 35-45-6-2 to pay
to the aggrieved person:
(1) an amount equal to three (3) times the person's actual
damages;
(2) the costs of the action;
(3) a reasonable attorney's fee; and
(4) any punitive damages awarded by the court and allowable
under law.
(c) The defendant and the aggrieved person are entitled to a trial
by jury in an action brought under this section (or IC 34-4-30.5-5
before its repeal).
(d) In addition to any rights provided under section 4 of this
chapter, an aggrieved person has a right or claim to forfeited property
or to the proceeds derived from forfeited property superior to any
right or claim the state has in the same property or proceeds.
(e) If the state is an aggrieved person, the attorney general and the
inspector general have concurrent jurisdiction with the prosecuting
attorney to bring an action under this section.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,
SEC.44.
IC 34-24-2-7
Relitigation of issues determined in criminal proceeding barred by
collateral estoppel
Sec. 7. In any action brought under this chapter (or IC 34-4-30
before its repeal), the principle of collateral estoppel operates to bar
relitigation of the issues previously determined in a criminal
proceeding under IC 35-45-6-2.
As added by P.L.1-1998, SEC.19.
IC 34-24-2-8
Retention of attorney to bring action
Sec. 8. (a) A prosecuting attorney or the inspector general may
retain an attorney to bring an action under this chapter.
(b) An attorney retained under this section is not required to be a
deputy prosecuting attorney but must be admitted to the practice of
law in Indiana.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,
SEC.45.