Kansas Statutes 60-4113. In rem proceedings
Terms Used In Kansas Statutes 60-4113
- Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Interest holder: means a secured party within the meaning of the uniform commercial code, a mortgagee, lien creditor, judgment creditor or the beneficiary of a security interest or encumbrance pertaining to an interest in property, whose interest would be perfected against a good faith purchaser for value. See Kansas Statutes 60-4102
- Notice of pending forfeiture: means a written statement by the plaintiff's attorney following a seizure of property but prior to the filing of a judicial complaint against such property allowing for an administrative resolution to claims or recognition of exemptions. See Kansas Statutes 60-4102
- Owner: means a person, other than an interest holder, who has an interest in property. See Kansas Statutes 60-4102
- Plaintiff: The person who files the complaint in a civil lawsuit.
- Property: means anything of value, and includes any interest in property, including any benefit, privilege, claim or right with respect to anything of value, whether real or personal, tangible or intangible. See Kansas Statutes 60-4102
- Seizing agency: means any department or agency of this state or its political subdivisions which regularly employs law enforcement officers and which employed the law enforcement officer who seized property for forfeiture, or such other agency as the seizing agency may designate in a particular case. See Kansas Statutes 60-4102
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Kansas Statutes 77-201
(a) A judicial in rem forfeiture proceeding brought by the plaintiff‘s attorney pursuant to a notice of pending forfeiture or verified petition for forfeiture is also subject to the provisions of this section. If a forfeiture is authorized by this act, it shall be ordered by the court in the in rem action.
(b) An action in rem may be brought by the plaintiff’s attorney in addition to, or in lieu of, civil in personam forfeiture procedures. The seizing agency may serve the complaint in the manner provided by Kan. Stat. Ann. § 60-4109(a)(3), and amendments thereto, or as provided by the rules of civil procedure.
(c) Only an owner of or an interest holder in the property who has timely filed a proper claim may file an answer in an action in rem. For the purposes of this section, an owner of or interest holder in property who has filed a claim and answer shall be referred to as a claimant.
(d) The answer shall be signed by the claimant under penalty of perjury, Kan. Stat. Ann. § 21-5903, and amendments thereto, shall otherwise be in accordance with the rules of civil procedure on answers and shall also set forth the following:
(1) The caption of the proceedings and identifying number, if any, as set forth on the notice of pending forfeiture or complaint and 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 the property; and
(4) a detailed description of when and how the claimant obtained an interest in the property.
(e) Substantial compliance with subsection (d) shall be deemed sufficient.
(f) It is permissible to assert the right against self-incrimination in an answer. If a claimant asserts the right, the court, in the court’s discretion, may draw an adverse inference from the assertion against the claimant. The adverse inference shall not, by itself, be the basis of a judgment against the claimant.
(g) The answer shall be filed within 21 days after service of the civil in rem complaint.
(h) The issue shall be determined by the court alone. The plaintiff’s attorney shall have the initial burden of proving the interest in the property is subject to forfeiture by a preponderance of the evidence. If the state proves the interest in the property is subject to forfeiture, the claimant has the burden of showing by a preponderance of the evidence that the claimant has an interest in the property which is not subject to forfeiture.
(i) If the plaintiff’s attorney fails to meet the burden of proof for forfeiture, or a claimant establishes by a preponderance of the evidence that the claimant has an interest that is exempt under the provisions of Kan. Stat. Ann. § 60-4106, and amendments thereto, the court shall order the interest in the property returned or conveyed to the claimant. The court shall order all other property forfeited to the seizing agency and conduct further proceedings pursuant to Kan. Stat. Ann. §§ 60-4116 and 60-4117, and amendments thereto.