(1)(a) Except as otherwise provided in this chapter, property seized for forfeiture is not subject to replevin, conveyance, sequestration or attachment, nor is it subject to a motion or order to return under ORS chapter 133. The seizure of property or the commencement of a forfeiture proceeding pursuant to this chapter shall not abate, impede or in any way delay the initiation or prosecution of a suit or action by a financial institution for the possession of seized property in which the financial institution has or purports to have a lien or security interest or for the foreclosure of such lien or security interest. A financial institution may proceed with any suit or action involving property in which it has a lien or security interest even though a seizure has occurred and forfeiture proceedings have been or will be commenced. Any such suit or action may be consolidated with the forfeiture proceeding for the purpose of trial. If property which may be subject to forfeiture is sold prior to the conclusion of the forfeiture proceedings, the sheriff, trustee or other person conducting the sale and who has actual notice of the forfeiture proceedings shall distribute the sale proceeds as follows:
(A) To the expenses of the sale;
(B) To the payment of the obligations owed to the foreclosing financial institution that are secured by the property and to any other person whose lien or security interest in the property has been foreclosed in the suit or action in the order determined by the court; and
(C) The surplus, if any, shall be distributed to the seizing or forfeiting agency, or to the court in which the forfeiture proceedings are pending.
(b) The sheriff, trustee or other person who distributes the sale proceeds as provided shall not be liable to any person who has or asserts an interest in the property.
(2) Within 30 days following seizure of property for forfeiture, the seizing agency, in consultation with the district attorney of the county in which the property was seized for forfeiture, shall determine whether it will seek the forfeiture of the property. If the seizing agency elects not to seek forfeiture, it shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens arising under ORS 87.152 to 87.162 that have attached to the property since its seizure and release the property. The property may be released to a person other than the person from whose custody or control the property was taken if the seizing agency, forfeiting agency or forfeiture counsel first mails to the last-known addresses of all persons known to have an interest in the property a notice of intent to release the property. The notice shall specify the person to whom the property is to be released and shall detail the time and place of the release. An agency that complies with the provisions of this subsection by paying costs and expenses of towing and storage, discharging possessory liens, mailing any required notices and releasing the property shall not be liable for its actions under this subsection or for any consequences thereof.
(3) A forfeiting agency shall, pending forfeiture and final disposition and subject to the need to retain it in any criminal proceeding, provide that property in the physical custody of the seizing or forfeiting agency be serviced or maintained as may be reasonably appropriate to preserve the value of the property.
(4) A forfeiting agency may, pending forfeiture and final disposition and subject to the need to retain seized property in any criminal proceeding:
(a) Provide that the seized property be transferred for forfeiture to any city, county, state or federal agency with forfeiture authority, provided that no such transfer shall have the effect of diminishing or reducing the rights of any third party under this chapter.
(b) Apply to the court for an order providing that the seized property may be sold, leased, rented or operated in the manner and on the terms that may be specified in the courtís order. The court shall deny any application unless the sale, lease, rental or operation of the property will be conducted in a commercially reasonable manner and shall not result in a material reduction of the propertyís value. An order shall only be entered:
(A) After notice and opportunity to be heard is provided to all persons known to have or to claim an interest in the property; and
(B) With the consent of all persons holding security interests of record in the property.
(c) Provide that the seized property be removed to a storage area for safekeeping.
(5) Unless otherwise ordered by the court, the proceeds of the sale, leasing, renting or operation under subsection (4) of this section shall be held by the forfeiting agency, and the rights of holders of security interests of record in the property shall attach to the proceeds of the sale, leasing, renting or operation in the same order of priority as interests attached to the property.
(6)(a) Except as provided in paragraph (b) of this subsection and except for currency with apparent or known intrinsic collector value, all cash seized for forfeiture, together with all cash received from the sale, leasing, renting or operation of the property, shall be immediately deposited in an insured interest-bearing forfeiture trust account or accounts maintained by the seizing or forfeiting agency exclusively for this purpose. Cash may be retained as evidence in a criminal proceeding but shall be deposited immediately when the need to retain it as evidence is discharged.
(b) Notwithstanding paragraph (a) of this subsection, all cash seized for forfeiture which at the time of seizure is deposited in any form of account in a financial institution may remain in the account in the financial institution. From the time of seizure until the forfeiture proceeding is abandoned, or until a court ultimately enters or fails to enter a judgment of forfeiture, all deposits except the deposit of interest by the financial institution, withdrawals or other transactions involving the account are prohibited, unless approved by the court.
(c) Subject to any court order, interest earned upon cash deposited in a forfeiture trust account or held in an account in a financial institution under this subsection shall be disbursed as follows:
(A) If the forfeiture proceeding is abandoned, or if the court ultimately fails to enter a judgment of forfeiture or foreclosure, any interest earned, together with the cash deposited in the forfeiture trust account in connection with the seizure in question, shall be paid by the seizing or forfeiting agency to the person from whom it was seized and any interest earned, together with the cash deposited in an account in a financial institution shall be released by the seizing or forfeiting agency to the person from whom it was seized.
(B) If a judgment of forfeiture is entered, but parties other than the forfeiting agency establish rights to portions of the amount deposited in the forfeiture trust account or the account held in a financial institution which are in the aggregate larger than or equal to the cash on deposit plus interest earned thereon, the interest, together with the cash on deposit, shall be disbursed by the forfeiting agency to the parties in the order of their priority.
(C) If a judgment of forfeiture is entered, and the total amount arising out of the seizure which is on deposit in the forfeiture trust account or in an account in a financial institution, including interest earned on moneys deposited, is greater than the aggregate amount needed to satisfy the established interests of security interest holders, lienholders and other claimants, then the balance remaining after payment by the forfeiting agency to parties shall be retained by the forfeiting agency.
(7) If the property seized for forfeiture consists of stocks, bonds, promissory notes, or other security or evidence of indebtedness, and the property is held in some form of account in a financial institution, the property may remain in the account pending a final decision in the forfeiture proceedings. Unless otherwise allowed by order of the court, no transactions involving the account shall be permitted other than the deposit or reinvestment of dividends or other normally recurring payments on the property. Any accrual to the value of the property during the pendency of forfeiture proceedings shall be disbursed in the manner provided for the disbursement of interest under subsection (6) of this section.
(8) If property is seized for forfeiture or if a notice of forfeiture is filed without a prior judicial determination of probable cause, a court, on application filed by an owner of or interest holder in the property within 15 days after notice of its seizure for forfeiture, or actual knowledge of it, whichever is earlier, may, after five daysí written notice to the forfeiture counsel, issue an order to show cause to the forfeiting agency, for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists. If the court finds that there is no probable cause for forfeiture of the property, the property seized for forfeiture from the applicant or subjected to the notice of forfeiture shall be released from its seizure for forfeiture or lien pending the outcome of a judicial proceeding under ORS 475A.075. [1989 c.791 §5; 1991 c.237 §2; 1991 c.276 §1; 1991 c.800 §1; 1995 c.459 §1; 1999 c.59 §148; 2001 c.780 §§6,6a]Section: Previous 475A.010 475A.015 475A.020 475A.025 475A.030 475A.035 475A.040 475A.045 475A.050 475A.055 475A.060 475A.065 475A.070 475A.075 475A.080 Next
Last modified: August 7, 2008