60-4109. Commencement of forfeiture proceedings.
60-4109
60-4109. Commencement of forfeiture proceedings.(a) Forfeiture proceedings shall be commenced by filing anoticeof pending forfeiture or a judicial forfeiture action:
(1) If the plaintiff's attorney fails to initiate forfeitureproceedings by notice of pending forfeiture within 90 days againstproperty seized for forfeiture or if the seizing agency fails topursue forfeiture of the property upon which a proper claim hasbeen timely filed by filing a judicial forfeiture proceeding within90 days after notice of pending forfeiture, the property shall bereleased on the request of an owner or interest holder to such owner's orinterest holder'scustody, as custodian for the court, pending further proceedingspursuant to this act.Such custodianshipshall not exceed 90 days following the release to the owner or interest holderunless an extension is authorized by the court for good cause shown.
(2) If, after notice of pending forfeiture, a claimant filesa petition for recognition of exemption pursuant to K.S.A. 60-4110, theplaintiff'sattorney may delay filing the judicialforfeiture proceeding for a total of 180 days after the notice ofpending forfeiture except that if an interest holdertimely files a proper petition documenting the complete nature andextent of such holder's interest, including all of the contractual termsand current status, the plaintiff's attorney may delay filinga judicial forfeiture proceeding only if such attorney provideseach such petitioner with a written recognition of exemptionwithin 60 days after the effective date of the notice of pendingforfeiture, recognizing the interest of such petitioner to theextent of documented outstanding principal plus interest at thecontract rate until paidandany attorney fees ordered by a court pursuant to such contract.
(3) Whenever notice of pending forfeiture or service of an inrem complaint or notice of a recognition of exemption and statementof nonexempt interests is required under this act, notice orservice shall be given in accordance with one of the following:
(A) If the owner's or interest holder's name and currentaddress are known, by either personal service by any personqualified to serve process or by any law enforcement officer or bymailing a copy of the notice by certified mail, return receiptrequested, to the known address;
(B) if the owner's or interest holder's name and addressare required by law to be on record with a municipal, county,state, or federal agency to perfect an interest in the property,and the owner's or interest holder's current address is not known,by mailing a copy of the notice by certified mail, return receiptrequested, to any address of record with any of the describedagencies; or
(C) if the owner's or interest holder's address is notknown and is not on record as provided in paragraph (B), or the owner's orinterest holder's interest is not known,by publication in one issue of the official county newspaper,as defined by K.S.A. 64-101, and amendments thereto, in the countyinwhich the seizure occurred.
(4) Notice is effective upon personal service, publication,or the mailing of a written notice, whichever is earlier, exceptthat notice of pending forfeiture of real property is not effectiveuntil it is recorded. Notice of pending forfeiture shall includea description of the property, the date and place of seizure, theconduct giving rise to forfeiture or the violation of law alleged,and a summary of procedures and procedural rights applicable to theforfeiture action.
(b) The plaintiff's attorney, without a filing fee, may file alien for the forfeiture of property upon the initiation of anycivil or criminal proceeding relating to conduct giving rise toforfeiture under this act or upon seizure for forfeiture. Aplaintiff's attorney may also file a forfeiture lien in this statein connection with a proceeding or seizure for forfeiture in anyother state under a state or federal statute substantially similarto the relevant provisions of this act. The filing constitutesnotice to any person claiming an interest in the seized property orin property owned by the named person.
(1) The lien notice shall set forth the following:
(A) The name of the person and, in the discretion of thelienor, any alias, or the name of any corporation, partnership,trust, or other entity, including nominees, that are owned entirelyor in part, or controlled by the person; and
(B) the description of the seized property, thecriminal or civil proceeding that has been brought relating toconduct giving rise to forfeiture under this act, the amountclaimed by the lienor, the name of the district court where theproceeding or action has been brought, and the case number of theproceeding or action if known at the time of filing.
(2) A lien filed pursuant to this subsection applies to thedescribed seized property or to one named person, any aliases,fictitious names, or other names, including the names of anycorporation, partnership, trust, or other entity, owned entirely orin part, or controlled by the named person, and any interest inreal property owned or controlled by the named person. A separateforfeiture lien shall be filed for each named person.
(3) The notice of lien creates, upon filing, a lien in favorof the lienor as it relates to the seized property or the namedperson or related entities. The lien secures the amount ofpotential liability for civil judgment, and if applicable, thefair market value of seized property relating to all proceedingsunder this act enforcing the lien. The notice of forfeiture lienreferred to in this subsection shall be filed in accordance withthe provisions of the laws of this state relating to the typeof property that is subject to the lien. The validity and priorityof the forfeiture lien shall be determined in accordance withapplicable law pertaining to liens. The lienor may amend orrelease, in whole or in part, a lien filed under this subsection atany time by filing, without a filing fee, an amended lien inaccordance with this subsection which identifies the lien amended.The lienor, as soon as practical after filing the lien, shallfurnish to any person named in the lien a notice of the filing ofthe lien. Failure to furnish notice under this subsection shallnot invalidate or otherwise affect the lien.
(4) Upon entry of judgment in the seizing agency's favor, the seizing agencymay proceed to execute on the lien as provided by law.
(5) A trustee, constructive or otherwise, who has notice thata notice of forfeiture lien, or a notice of pending forfeiture, ora civil forfeiture proceeding has been filed against the propertyor against any person or entity for whom the person holds title orappears as record owner, shall furnish within 15 days, tothe seizing agency or the plaintiff's attorney all of the followinginformation, unless all of the information is of record in thepublic records giving notice of liens on that type of property:
(A) The name and address of each person or entity forwhom the property is held;
(B) the description of all other property whose legaltitle is held for the benefit of the named person; and
(C) a copy of the applicable trust agreement or otherinstrument, if any, under which the trustee or other person holdslegal title or appears as record owner of the property.
(6) A trustee with notice who knowingly fails to comply withthe provisions of this subsection shall be guilty of a class Bnonpersonmisdemeanor.
(7) A trustee with notice who fails to comply with paragraph(5) is subject to a civil penalty of $100 for eachday of noncompliance. The court shall enter judgment orderingpayment of $100 for each day of noncompliance from the effectivedate of the notice until the required information is furnished orthe seizing agency executes the seizing agency's judgment lien under thissection.
(8) To the extent permitted by the constitutions of the UnitedStates and the state of Kansas, the duty to comply with paragraph(5) shall not be excused by any privilege orprovision of law of this state or any other state or country whichauthorizes or directs that testimony or records required to befurnished pursuant to paragraph (5) are privileged,confidential and otherwise may not be disclosed.
(9) A trustee who furnishes information pursuant to paragraph(5) is immune from civil liability for the releaseof the information.
(10) An employee of the seizing agency or the plaintiff'sattorney who releases the information obtained pursuant toparagraph (5), except in the proper discharge ofofficial duties, is guilty of a class B nonperson misdemeanor.
(11) If any information furnished pursuant to paragraph (5)is offered in evidence, the court may seal thatportion of the record or may order that the information bedisclosed in a designated way.
(12) A judgment or an order of payment entered pursuant to thissection becomes a judgment lien against the property alleged to besubject to forfeiture.
History: L. 1994, ch. 339, § 9; July 1.