Kansas Statutes 60-4114. In personam proceedings
Terms Used In Kansas Statutes 60-4114
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- 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
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Law enforcement officer: means any public servant, whether employed by the state of Kansas or subdivisions thereof or by the United States, vested by law with a duty to maintain public order, to make arrests for offenses, or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses. 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
- Person: includes any individual or entity capable of holding a legal or beneficial interest in property. See Kansas Statutes 60-4102
- Plaintiff: The person who files the complaint in a civil lawsuit.
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- 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
- Temporary restraining order: Prohibits a person from an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(a) (1) A judicial in personam forfeiture proceeding brought by the plaintiff‘s attorney pursuant to an in personam civil action alleging conduct giving rise to 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 personam action. The action shall be in addition to or in lieu of in rem forfeiture procedures.
(2) In any proceeding pursuant to this section, the court, on application of the plaintiff’s attorney, may enter any order authorized by Kan. Stat. Ann. § 60-4112, and amendments thereto.
(b) The court may issue a temporary restraining order in an action under this section on application of the plaintiff’s attorney, without notice or an opportunity for a hearing, if the plaintiff’s attorney demonstrates that:
(1) There is probable cause to believe that in the event of a final judgment, the property involved would be subject to forfeiture under the provisions of this act; and
(2) a provision of notice would jeopardize the availability of the property for forfeiture.
(c) Notice of the issuance of a temporary restraining order and an opportunity for a hearing shall be given to persons known to have an interest in the property. A hearing shall be held at the earliest possible date in accordance with the applicable civil rule and shall be limited to the issues of whether:
(1) There is a probability that the seizing agency will prevail on the issue of forfeiture and that failure to enter the order could result in the property being destroyed, conveyed, alienated, encumbered, further encumbered, disposed of, purchased, received, removed from the jurisdiction of the court, concealed, or otherwise made unavailable for forfeiture; and
(2) the need to preserve the availability of property through the entry of the requested order outweighs the hardship on any owner or interest holder against whom the order is to be entered.
(d) On a determination of liability of a person for conduct giving rise to forfeiture under this act, the court shall enter a judgment of forfeiture of the property found to be subject to forfeiture described in the complaint and shall also authorize the plaintiff’s attorney or any law enforcement officer to seize all property ordered forfeited which was not previously seized or is not then under seizure. Following the entry of an order declaring the property forfeited, the court, on application of the plaintiff’s attorney, may enter any appropriate order to protect the interest of the seizing agency in the property ordered forfeited.
(e) Following the entry of an order of forfeiture under subsection (d), the plaintiff’s attorney may give notice of pending forfeiture, in the manner provided in Kan. Stat. Ann. § 60-4109, and amendments thereto, to all owners and interest holders who have not previously been given notice.
(f) An owner of or interest holder in property that has been forfeited and whose claim is not precluded may file a claim as described in Kan. Stat. Ann. § 60-4111, and amendments thereto, within 60 days after initial notice of pending forfeiture or after notice under subsection (e), whichever is earlier. If the seizing agency does not recognize the claimed exemption, the plaintiff’s attorney shall file a complaint and the court shall hold the hearing and determine the claim, without a jury, in the manner provided for in rem judicial forfeiture actions in Kan. Stat. Ann. § 60-4113, and amendments thereto.
(g) In accordance with findings made at the hearing, the court may amend the order of forfeiture if the court determines that any claimant has established by a preponderance of the evidence that the claimant has an interest in the property and that the claimant’s interest is exempt under Kan. Stat. Ann. § 60-4106, and amendments thereto.
(h) Except as provided in Kan. Stat. Ann. § 60-4112(c), and amendments thereto, no person claiming an interest in property subject to forfeiture under this act may intervene in a trial or appeal of a criminal action or in an in personam civil action involving the forfeiture of the property.