60-4113. In rem proceedings.
60-4113
60-4113. In rem proceedings.(a) A judicial in rem forfeiture proceeding brought by theplaintiff's attorney pursuant to a notice of pending forfeiture orverified petition for forfeiture is also subject to the provisionsof this section. If a forfeiture is authorized by this act, itshall be ordered by the court in the in rem action.
(b) An action in rem may be brought by the plaintiff's attorneyin addition to, or in lieu of, civil in personam forfeitureprocedures. The seizing agency may serve the complaint in themanner provided by subsection (a)(3) of K.S.A. 60-4109, or asprovided by the rules of civil procedure.
(c) Only an owner of or an interest holder in the property whohas timely filed a proper claim may file an answer in an action inrem. For the purposes of this section, an owner of or interestholder in property who has filed a claim and answer shall bereferred to as a claimant.
(d) The answer shall be in affidavit form, signed by the claimantunder oath, and sworn to by the affiant before one who hasauthority to administer the oath, under penalty of perjury, K.S.A.21-3805, and amendments thereto, or making a false writing, K.S.A.21-3711, and amendments thereto, and shall otherwise be inaccordance with the rules of civil procedure on answers and shallalso set forth all of the following:
(1) The caption of the proceedings and identifying number, ifany, as set forth on the notice of pending forfeiture or complaintand the name of the claimant.
(2) The address where the claimant will accept mail.
(3) The nature and extent of the claimant's interest in theproperty.
(4) The date, the identity of the transferor, and the detaileddescription of the circumstances of the claimant's acquisition ofthe interest in the property.
(5) The specific provision of this act relied on in assertingthat such property is not subject to forfeiture.
(6) All essential facts supporting each assertion.
(7) The specific relief sought.
(e) The answer shall be filed within 20 days after service of thecivil in rem complaint.
(f) The seizing agency and any claimant who has timely answeredthe complaint, at the time of filing such agency's pleadings, or at anyother time not less than 30 days prior to the hearing, may servediscovery requests on any other party, the answers or response towhich shall be due within 20 days of service. Discovery mayinclude deposition of any person at any time after the expirationof 15 days after the filing and service of the complaint. Anyparty may move for a summary judgment at any time after an answeror responsive pleading is served and not less than 30 days prior tothe hearing.
(g) The issue shall be determined by the court alone, and thehearing on the claim shall be held within 60 days after service ofthe petition unless continued for good cause. The plaintiff'sattorney shall have the initial burden ofproving the interest inthe property is subject to forfeiture by a preponderance of the evidence. Ifthe state proves the interest in the property is subject to forfeiture,the claimant has the burden of showing by apreponderance of the evidence that the claimant has an interest inthe property which is not subject to forfeiture.
(h) If the plaintiff's attorney fails to meet the burden of proof forforfeiture, or a claimant establishes by apreponderance of the evidence that the claimant has an interestthat is exempt under the provisions of K.S.A. 60-4106, thecourt shall order the interest in the property returned or conveyedto the claimant. The court shall order all other propertyforfeited to the seizing agency and conduct further proceedingspursuant to the provision of K.S.A. 60-4116 and 60-4117.
History: L. 1994, ch. 339, § 13; July 1.