In personam forfeiture

(a) In actions in personam, the complaint shall be verified on oath or affirmation by a duly authorized agent of the state in a manner consistent with Article 5 of Chapter 10 of this title. The complaint shall: (1) Describe with reasonable particularity the property which is sought to be forfeited; (2) State the property’s present custodian; (3) State the name of the owner or interest holder, if known; (4) Allege the essential elements of the criminal violation which is claimed to exist; (5) State the place of seizure, if the property was seized; and (6) Conclude with a prayer of due process to enforce the forfeiture. (b) Service of the complaint and summons shall be as follows: (1) Except as otherwise provided in this Code section, issuance of the summons, form of the summons, and service of the complaint and summons shall be as provided by subsections (a), (b), (c), and (d) of Code Section 9-11-4; and (2) If the defendant is unknown or resides out of this state or departs this state or cannot after due diligence be found within this state or conceals himself or herself so as to avoid service, notice of the complaint for forfeiture shall be published once a week for two consecutive weeks in the legal organ of the county in which the complaint for forfeiture is pending. Such publication shall be deemed sufficient notice to any such defendant. 462 9-16-13 (c) A defendant shall file a verified answer within 30 days after the service of the summons and complaint. If service is made by publication and personal service has not been made, a defendant shall file such answer within 30 days of the date of final publication. In addition to complying with the general rules applicable to filing an answer in civil actions as set forth in Article 3 of Chapter 11 of this title, the answer shall contain all of the elements set forth in subsection (c) of Code Section 9-16-12. If the state attorney determines that an answer is deficient in some manner, he or she may file a motion for a more definite statement. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 15 days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. If a motion for a more definite statement is filed, the time requirements for a trial set forth in subsection (f ) of this Code section shall not commence until a sufficient answer has been filed. (d) In addition to any injured person’s right of intervention pursuant to Code Section 9-16-16, any owner or interest holder or person in possession of the property who suffers a pecuniary loss or physical injury due to a violation of Code Section 16-5-46, Article 4 or 5 of Chapter 8 of Title 16, or Chapter 14 of Title 16 may be permitted to intervene in any civil action brought pursuant to this Code section or Code Section 9-16-12 as provided by Chapter 11 of this title. (e) If at the expiration of the period set forth in subsection (c) of this Code section no answer has been filed, the state attorney may seek a default judgment as provided in Code Section 9-11-55 and, if granted, the court shall order the disposition of the seized property as provided for in Code Section 9-16-19. (f ) If an answer is filed, a bench trial shall be held within 60 days after the last claimant was served with the complaint; provided, however, that such trial may be continued by the court for good cause shown. Discovery as provided for in Article 5 of Chapter 11 of this title shall not be allowed; however, prior to trial any party may apply to the court to allow for such discovery, and if discovery is allowed, the court may provide for the scope and duration of discovery and may continue the trial to a date not more than 60 days after the end of the discovery period unless continued by the court for good cause shown. (g) On a determination of liability of a person for conduct giving rise to forfeiture, the court shall enter a judgment of forfeiture of the property described in the complaint and shall also authorize the state attorney or his or her agent or any law enforcement officer or peace officer to seize all property ordered to be forfeited which was not previously seized or was not then under seizure. Following the entry of 463 9-16-14 an order declaring the property forfeited, the court, on application of the state attorney, may enter any appropriate order to protect the interest of the state in the property ordered to be forfeited. (Code 1981, § 9-16-13, enacted by Ga. L. 2015, p. 693, § 1-1/HB 233.) 9-16-14. Restraining order, injunction, and other measures to seize, maintain, or preserve property; hearing. In conjunction with any civil forfeiture proceeding or criminal proceeding involving forfeiture: (1) The court, upon application of the state attorney, may enter any restraining order or injunction; require the execution of satisfactory performance bonds; appoint receivers, conservators, appraisers, accountants, or trustees; or take any action to seize, secure, maintain, or preserve the availability of property subject to forfeiture, including issuing a warrant for its seizure and writ of attachment, whether before or after the filing of a complaint for forfeiture; (2) A temporary restraining order under this Code section may be entered on application of the state attorney, without notice or an opportunity for a hearing, if the state attorney demonstrates that: (A) There is probable cause to believe that the property subject to the order, in the event of final judgment or conviction, would be subject to forfeiture; and (B) Provision of notice would jeopardize the availability of the property for forfeiture; (3) Notice of the entry of a restraining order and an opportunity for a hearing shall be afforded to persons known to have an interest in the property. The hearing shall be held at the earliest possible date consistent with subsection (b) of Code Section 9-11-65 and shall be limited to the issues of whether: (A) There is a probability that the state will prevail on the issue of forfeiture and that failure to enter the order will result in the property’s being destroyed, conveyed, encumbered, removed from the jurisdiction of the court, concealed, or otherwise made unavailable for forfeiture; and (B) The need to preserve the availability of the 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; (4) If property is seized for forfeiture or a forfeiture lien is filed without a previous judicial determination of probable cause or order of forfeiture or a hearing under paragraph (2) of this Code section, the court, on an application filed by an owner of or interest holder in the 464 9-16-15 property within 30 days after notice of its seizure or forfeiture lien or actual knowledge of such seizure or lien, whichever is earlier, and complying with the requirements for an answer to an in rem complaint, and after five days’ notice to the district attorney of the judicial circuit where the property was seized or, in the case of a forfeiture lien, to the state attorney filing such lien, may issue an order to show cause to the state attorney and seizing law enforcement agency for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists. The hearing shall be held within 30 days unless continued for good cause on motion of either party. If the court finds that there is no probable cause for forfeiture of the property, the property shall be released. In determining probable cause, the court shall apply the rules of evidence; provided, however, that hearsay shall be admissible; and (5) The court may order property that has been seized for forfeiture to be sold to satisfy a specified interest of any interest holder, on motion of any party, and after notice and a hearing, on the conditions that: (A) The interest holder has filed a proper claim and has an interest that the state attorney has stipulated is exempt from forfeiture, provided that if the interest holder is a financial institution, it is also authorized to do business in this state and is under the jurisdiction of a governmental agency which regulates financial institutions, securities, insurance, or real estate; (B) The interest holder shall dispose of the property by commercially reasonable public sale and apply the income first to its interest and then to its reasonable expenses incurred in connection with the sale or disposal; and (C) The balance of the income, if any, shall be returned to the actual or constructive custody of the court, in an interest bearing account, subject to further proceedings under this chapter. (Code 1981, § 9-16-14, enacted by Ga. L. 2015, p. 693, § 1-1/HB 233.) 9-16-15. Stay of civil forfeiture proceedings during pendency of criminal proceedings; effect of criminal conviction. (a) For good cause shown by the state or the owner or interest holder of the property, the court may stay civil forfeiture proceedings during the pendency of criminal proceedings resulting from a related indictment or accusation until such time as the criminal proceedings result in a plea of guilty, a conviction after trial, or an acquittal after trial or are otherwise concluded before the trial court. (b) An acquittal or dismissal in a criminal proceeding shall not preclude civil forfeiture proceedings. 465 9-16-17 (c) A defendant convicted in any criminal proceeding shall be precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any civil forfeiture proceeding against such defendant pursuant to this chapter, regardless of the pendency of an appeal from that conviction; provided, however, that the evidence of the pendency of an appeal shall be admissible. For the purposes of this subsection, the term ‘conviction’ means the result from a verdict or plea of guilty, including a plea of nolo contendere. (Code 1981, § 9-16-15, enacted by Ga. L. 2015, p. 693, § 1-1/HB 233.) 9-16-16. Recovery by an injured person.