68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1830

                         House Bill 2210

Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Department of Justice)


                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Grants court discretion to award costs, disbursements and
attorney fees in civil forfeiture proceedings to prevailing
party.

                        A BILL FOR AN ACT
Relating to fees in civil forfeiture proceedings; amending
  section 9, chapter 791, Oregon Laws 1989.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. Section 9, chapter 791, Oregon Laws 1989, as amended
by section 2, chapter 275, section 1, chapter 290, section 2,
chapter 322, and section 2, chapter 800, Oregon Laws 1991, and
section 2, chapter 553, Oregon Laws 1993, is amended to read:
   { +  Sec. 9. + } A judgment of forfeiture shall recite the
basis for the judgment.
  (1) If no financial institutions have filed the affidavit
described in section 7 (2)(b), chapter 791, Oregon Laws 1989, and
if the court has failed to uphold the claim or affidavit of any
other claimant, the effect of the judgment shall be that:
  (a) Title to the property shall pass to the forfeiting agency
free of any interest or encumbrance thereon in favor of any
person who has been given notice;
  (b) The forfeiting agency may transfer good and sufficient
title to any subsequent purchaser or transferee, and the title
shall be recognized by all courts, by the state, by the
departments and agencies of the state, and by any political
subdivision. In the case of real property, the forfeiting agency
shall warrant the title against constitutional defect. A warranty
under this section is limited to the purchase price of the real
property; and
  (c) Any department, agency or officer of the state or any
political subdivision whose official functions include the
issuance of certificates or other evidence of title shall be
immune from civil or criminal liability when such issuance is
pursuant to a judgment of forfeiture.
  (2) If any affidavits are filed by financial institutions as
provided in section 7 (2)(b), chapter 791, Oregon Laws 1989, or
if any claimants file an appearance, claim and bond as provided
in section 7 (2)(a), chapter 791, Oregon Laws 1989 or an
affidavit as provided in section 7 (2)(c), chapter 791, Oregon
Laws 1989:
  (a) The court shall foreclose all security interests, liens and
vendor's interests of financial institutions and claimants as to
which the court determines that there is a legal or equitable
basis for foreclosure; and
  (b) All other interests applicable to the property, which are
not foreclosed or otherwise eliminated through a judgment and
decree of foreclosure, shall, if and to the extent that they are
valid and subsisting, remain in effect, and the property shall
remain subject to them upon completion of the forfeiture
proceeding.
  (3) Notwithstanding the provisions of chapter 791, Oregon Laws
1989, or other law, if a financial institution or other person
has filed an affidavit described in section 7, chapter 791,
Oregon Laws 1989, or if the court has upheld the claim of any
claimant, then as to each item of property seized:
  (a) If the court has determined that the property should not be
forfeited and has not foreclosed the security interests, liens or
other interests covering the property, the court shall render
judgment in favor of the owner of the property, the property
shall be returned to the owner and all security interests, liens
and other interests applicable to the property shall remain in
effect as though the property had never been seized. Upon the
return of the property to the owner, the seizing agency shall pay
all costs and expenses relating to towing and storage of the
property, and shall cause to be discharged any possessory chattel
liens on the property arising under ORS 87.152 to 87.162 that
have attached to the property since the seizure.
  (b) If the court has determined that the property should not be
forfeited and has foreclosed one or more interests covering the
property, including security interests or liens covering the
property or contracts for the transfer or conveyance of the
property, the seizing agency shall pay all costs and expenses
relating to towing and storage of the property, and shall cause
to be discharged any possessory chattel liens on the property
arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure and the court shall order the property
sold pursuant to a sheriff's sale or other sale authorized by the
court within such time as may be prescribed by the court
following entry of the judgment. If any interests covering the
property have not been foreclosed, including any liens or
security interests of a claimant whose claim has been upheld, or
of a financial institution that has filed the affidavit described
in section 7, chapter 791, Oregon Laws 1989, the property shall
be sold subject to those interests. The judgment shall also order
the proceeds of such sale applied in the following order:
  (A) To the payment of the costs of the sale;
  (B) To the satisfaction of the foreclosed liens, security
interests and contracts in order of their priority; and
  (C) The excess, if any, to the owner of the property.
  (c) If the court has determined that the property should be
forfeited and has foreclosed one or more security interests,
liens, contracts or other interests covering the property, the
seizing agency shall pay all costs and expenses relating to
towing and storage of the property, and shall cause to be
discharged any possessory chattel liens on the property arising
under ORS 87.152 to 87.162 that have attached to the property
since the seizure and the court shall order the property sold
pursuant to a sheriff's sale or other sale authorized by the
court. If any interest in the property was claimed by a financial
institution or other claimant and the interest was upheld but not
foreclosed, the property shall be sold subject to the interest.
The sale of the property shall be held within such time as may be
prescribed by the court following entry of the judgment. The
judgment shall also order the proceeds of such sale applied in
the following order:
  (A) To the payment of the costs of the sale;
  (B) To the satisfaction of the foreclosed liens, security
interests and contracts in the order of their priority; and
  (C) The excess, if any, to the forfeiting agency to be disposed
of as provided in section 10, chapter 791, Oregon Laws 1989.
  (d) If the court has determined that the property should be
forfeited and has not foreclosed the interests of any party in
the property, the seizing agency shall pay all costs and expenses
relating to towing and storage of the property and shall cause to
be discharged any possessory chattel liens on the property
arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure, and the court shall enter a judgment
awarding the property to the forfeiting agency, subject to the
interests of any claimants whose claims or affidavits were upheld
by the court, and subject to the interests of any financial
institutions that filed affidavits under section 7 (2)(b),
chapter 791, Oregon Laws 1989, which shall remain in full force
and effect.
  (4) The forfeiting agency shall not be liable to any person as
a consequence of obedience to a judgment directing conveyance to
a financial institution.
  (5) A copy of the judgment, including any judgment entered
under the provisions of section 6 (4), chapter 791, Oregon Laws
1989, shall be sent by forfeiture counsel to the Asset Forfeiture
Oversight Advisory Committee.
  (6)(a) On entry of judgment for a claimant in any proceeding to
forfeit property under chapter 791, Oregon Laws 1989, unless the
court has foreclosed one or more security interests, liens or
other interests covering the property, such property or interest
in property shall be returned or conveyed immediately to the
claimant designated by the court.   { - The court, in the manner
provided by ORCP 68, shall award costs, disbursements and
attorney fees to the prevailing claimants and financial
institutions, to be paid by the forfeiting agency. - }
  (b) If it appears that there was reasonable suspicion that the
property was subject to forfeiture, the court shall cause a
finding to be entered, and no claimant or financial institution
shall be entitled to damages, nor is the person who made the
seizure, the seizing or forfeiting agency or forfeiture counsel
liable to suit or judgment on account of such seizure or action.
An order directing seizure issued under section 4 (4), chapter
791, Oregon Laws 1989, shall constitute a finding of reasonable
suspicion that the property was subject to forfeiture.
  (7) Nothing contained in this section shall prevent a claimant
or financial institution from obtaining any deficiency to which
such claimant or financial institution would otherwise be
entitled.
  (8) Nothing in this section or in section 5, chapter 791,
Oregon Laws 1989, shall prevent a seizing agency from entering
into an agreement with a claimant or other person for the
reimbursement of the seizing agency for the costs and expenses
relating to towing and storage of property or the cost of
discharging any possessory chattel lien on the property arising
under ORS 87.152 to 87.162 that attached to the property between
seizure of the property and release or forfeiture of the
property.
   { +  (9) The court, in the manner provided by ORCP 68, may
award costs, disbursements or attorney fees to a prevailing
claimant, financial institution or forfeiting agency. Costs,
disbursements and attorney fees awarded to a prevailing claimant
or financial institution shall be paid by the forfeiting agency.
Costs, disbursements and attorney fees awarded to a forfeiting
agency shall be paid by the unsuccessful claimant or financial
institution. The court may order an unsuccessful claimant to pay
a forfeiting agency's costs, disbursements or attorney fees from
the bond posted pursuant to section 7, chapter 791, Oregon Laws
1989. + }
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