2007 ORS 475A.075¹
Civil action for forfeiture
  • when required
  • complaint
  • affidavit in response

A civil action in rem may be brought as provided in this section in any case in which forfeiture is sought. A civil action in rem must be brought if the property is real property, the property is in whole or part a manufactured dwelling as defined in ORS 446.003 (Definitions for ORS 446.003 to 446.200 and 446.225 to 446.285 and ORS chapters 195, 196, 197, 215 and 227), the property is a floating home as defined in ORS 830.700 (Definitions for ORS 830.060 to 830.145 and 830.700 to 830.870) or the property is subject to an interest in favor of any person known to have an interest, other than a person who engaged in prohibited conduct.

(1) If a forfeiting agency has commenced proceedings under ORS 475A.055 (Nonjudicial forfeiture), then an action shall be commenced by forfeiture counsel, within 15 days of receipt of a claim. If no proceedings have been commenced under ORS 475A.055 (Nonjudicial forfeiture), then the action shall be commenced by forfeiture counsel within 30 days of seizure. The property may be released by forfeiture counsel as provided in ORS 475A.045 (Status of seized property) (2).

(2) An action is commenced by filing a complaint. Responses to a complaint shall conform to the following procedure:

(a) A person claiming an interest in the property shall respond as provided in the Oregon Rules of Civil Procedure and, if a claim has not previously been filed, by filing a claim in the form set forth in ORS 475A.055 (Nonjudicial forfeiture) (3) with the court and posting a bond with the court. The bond shall be a cash bond in an amount equal to 10 percent of the value of the interest claimed by the person in the property. Upon good cause shown by motion and affidavit filed with the initial appearance, the court may waive or reduce the bond. Failure to file an appearance, claim and bond shall constitute a default. The bond shall be returned to the claimant upon the entry of a final determination on the claim.

(b) Notwithstanding the provisions of paragraph (a) of this subsection, a financial institution holding an interest in the seized property shall respond to a complaint with an affidavit establishing that the financial institution’s interest in the property was acquired:

(A) In the regular course of business as a financial institution;

(B) For valuable consideration;

(C) Without knowledge of the prohibited conduct;

(D) In good faith and without intent to defeat the interest of any potential forfeiting agency; and

(E) With respect to personal property, prior to the seizure of the property, or with respect to real property, recorded prior to the recording of notice of the seizure of the real property in the mortgage records of the county in which the real property is located. Failure to file an affidavit shall constitute a default. The affidavit shall be filed within 30 days from the date of service.

(c) Notwithstanding the provisions of paragraph (a) of this subsection, any person, other than a financial institution, who transfers or conveys an interest in real property pursuant to a contract for transfer or conveyance of an interest in real property as defined in ORS 93.905 (Definitions for ORS 93.905 to 93.940) and who retains an interest in the real property, or any successor in interest, may respond to a complaint with an affidavit establishing that the person:

(A) Received the interest in return for valuable consideration or by way of devise or intestate succession;

(B) Had no knowledge at the time of transfer or conveyance of the prohibited conduct;

(C) Acted in good faith and without intent to defeat the interest of any potential forfeiting agency;

(D) Recorded the interest in the mortgage records of the county in which the real property is located prior to the recording of any notice of intent to seize or notice of seizure; and

(E) Continued to hold the interest without acquiescing in the prohibited conduct.

(d) For the purposes of paragraph (c) of this subsection, a person shall be considered to have acquiesced in prohibited conduct if the person knew of the prohibited conduct and knowingly failed to take reasonable action under the circumstances to terminate or avoid use of the property in the course of prohibited conduct. For purposes of this section, "reasonable action under the circumstances" includes, but is not limited to:

(A) Reporting the prohibited conduct to a police agency;

(B) Commencing action that will assert the rights of the affiant as to the property interest;

(C) Terminating a rental agreement; or

(D) Seeking an abatement order under the provisions of ORS 105.505 (Remedies available for private nuisance) to 105.520 (Justification of sureties), or under the provisions of ORS 105.550 (Definitions for ORS 105.550 to 105.600) to 105.600 (ORS 105.550 to 105.600 not to limit authority of cities or counties to further restrict activities), or under any ordinance or regulation allowing abatement of nuisances.

(e) The affidavit permitted by paragraph (c) of this subsection shall be filed within 30 days from the date of service of the summons and complaint. Failure to file an affidavit or to respond as set forth in paragraph (a) of this subsection shall constitute a default.

(f) In response to an affidavit filed pursuant to paragraph (c) of this subsection, the forfeiting agency may controvert any or all of the assertions made in the affidavit. The affidavit of the forfeiting agency shall be filed within 20 days of the filing of the affidavit filed under paragraph (c) of this subsection. The transferor, conveyor or successor in interest may respond, within five days of the filing of the affidavit of the forfeiting agency, with a supplemental affidavit limited to the matters stated in the affidavit of the forfeiting agency. If the forfeiting agency does not file an affidavit within the time allowed, the transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter.

(g)(A) If the forfeiting agency files an affidavit under paragraph (f) of this subsection, the court shall determine from the affidavits whether there is a genuine issue of material fact with respect to the assertions of the transferor, conveyor or successor in interest.

(B) If the court determines that there is no genuine issue of material fact as to the truth of the assertions in the affidavit filed under paragraph (f) of this subsection, the transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter. The court shall order the forfeiting agency to pay the costs and disbursements, including attorney fees, of the prevailing transferor, conveyor or successor in interest if the forfeiting agency does not prevail.

(C) If the court determines that there is a genuine issue of material fact as to the truth of the assertions in the affidavit filed pursuant to paragraph (f) of this subsection, the transferor, conveyor or successor in interest shall, within 15 days, respond as provided in paragraph (a) of this subsection. The court may order the transferor, conveyor or successor in interest to pay the attorney fees of the forfeiting agency that were incurred in contesting the affidavit of the transferor, conveyor or successor in interest if the court determines that the affidavit of the transferor, conveyor or successor in interest was frivolous.

(3) All persons known to have an interest in the property, including any claimant, shall be served with a true copy of the inventory of the property prepared pursuant to ORS 475A.035 (Procedure for seizure) and 475A.055 (Nonjudicial forfeiture), the summons and the complaint as provided in ORCP 5 and 7 D. Notice of the action shall be published as provided in ORCP 7 D(6)(b) to (d) unless notice has previously been published in accordance with ORS 475A.055 (Nonjudicial forfeiture) (1). In the event that a forfeiture involves a vehicle, and the notices required by this statute have been given, and substitute service on the claimant is required because personal service cannot be reasonably accomplished, service as authorized by ORCP 7 D(4) shall be sufficient to establish jurisdiction over a registered owner or operator of a vehicle. If the property is in whole or part a manufactured dwelling as defined in ORS 446.003 (Definitions for ORS 446.003 to 446.200 and 446.225 to 446.285 and ORS chapters 195, 196, 197, 215 and 227) or a floating home as defined in ORS 830.700 (Definitions for ORS 830.060 to 830.145 and 830.700 to 830.870), the forfeiting agency shall, in addition to serving all persons known to have an interest in the property, record a notice of seizure containing a description of the manufactured dwelling or floating home in all public offices maintaining records that impart constructive notice of matters relating to manufactured dwellings or floating homes.

(4) Forfeiture counsel may move the court at any time after a response is made as provided in subsection (2)(a) of this section for an order finding that the defendant is a fugitive and in default. The court may enter an order finding the defendant in default under this subsection and enter a judgment of civil forfeiture if the court finds that the defendant is not confined or held in custody by another jurisdiction, and that the defendant, after notice or knowledge of the fact that a warrant has been issued for the defendant:

(a) Purposely left the state to avoid prosecution;

(b) Declines to return to the state and allow execution of the warrant; or

(c) Otherwise evades the jurisdiction of the court issuing the warrant.

(5) All judicial proceedings under this chapter shall be governed by the Oregon Rules of Civil Procedure to the extent that they do not conflict with specific provisions of this chapter.

(6)(a) The filing of criminal charges related to any civil proceeding for forfeiture may, upon motion of forfeiture counsel or the district attorney or upon motion on behalf of defendant in a related criminal proceeding, stay the civil forfeiture proceeding until the trial, plea or dismissal of the related criminal proceeding. A motion for stay on behalf of the defendant in a related criminal proceeding shall constitute a waiver of double jeopardy by the defendant as to the civil forfeiture proceeding and any related criminal proceeding. Pursuant to subsection (7) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.

(b) The court may stay the civil forfeiture proceeding upon motion of a party and good cause shown. Good cause may include a reasonable fear on the part of a claimant that the claimant could be prosecuted for conduct arising out of the same factual situation which gave rise to the seizure of property. Pursuant to subsection (7) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.

(7) Notwithstanding any stay entered pursuant to subsection (6)(a) or (b) of this section, an action pursuant to this section may be consolidated with any other action pursuant to this section relating to the same property or parties on motion by any party in any related action. Upon motion by the state or a political subdivision of the state, or any criminal defendant who is also a claimant, a civil forfeiture proceeding under this section may be consolidated for trial or other resolution with any related criminal proceeding. Trial or other resolution of the civil forfeiture action shall immediately follow the related criminal trial or other resolution, shall be part of the same proceeding and shall be heard by the same trier of fact. Any objection by the defendant to the consolidation or any motion by the defendant to sever the related criminal case from the civil proceeding for forfeiture shall constitute a waiver of double jeopardy as to any related criminal action and the civil forfeiture proceeding.

(8) The action shall be commenced and tried:

(a) In the case of real property, in the circuit court in a county in which the property is situated; or

(b) In all other cases, in the circuit court of the county in which the property was seized or the county in which any part of the prohibited conduct took place. [1989 c.791 §7; 1991 c.218 §3; 1991 c.238 §1; 1991 c.275 §1; 1991 c.799 §2; 1991 c.828 §1; 1993 c.699 §18; 1995 c.459 §2; 1999 c.59 §149; 1999 c.168 §11; 2001 c.780 §§8,8a; 2005 c.830 §34]

Chapter 475A

Notes of Decisions

Civil forfeiture pro­ceed­ing under this chapter is not sufficiently crim­i­nal in nature to bar on state or federal double jeopardy grounds later pros­e­cu­­tion for prohibited con­duct that justified forfeiture. State v. Selness/Miller, 334 Or 515, 54 P3d 1025 (2002)

1 Legislative Counsel Committee, CHAPTER 475A—Civil Forfeiture, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­475a.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 475A, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­475aano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.