2217

Notice and an Opportunity for a Pre-seizure Hearing

Despite the presence of the "posting" procedure outlined supra, there will be frequent situations where a full seizure should occur, and a pre-seizure hearing held, if requested. When a balancing of the government's and the owner's interests in the property suggest that an actual seizure should occur, the government should proceed to give notice and provide an opportunity to be heard. EXAMPLES: Situations that might weigh in favor of an actual seizure include: The property is improved property that is vacant or appears to be abandoned and there is a likelihood that vandalism will result if the U.S. Marshal does not take custody and control over the property. The real property is a residential single family unit that is rented and there is reason to believe that the owner is not applying rental proceeds to payment of the mortgage, taxes, utilities, or repairs, or is otherwise allowing the property to deteriorate. The real property involved is an apartment complex or other income-producing multi-unit housing complex where there is reason to believe the property owner will fail to apply rental proceeds to payment of the mortgage, taxes, utilities, and repairs; or where the property is being allowed to deteriorate; or where rental income is likely to be misappropriated or absconded. The real property involves a business and the income is necessary to continue the operation of the business for sale as a going concern; or where the income is likely to be misappropriated or absconded. Any deprivation or interference with rights associated with the ownership of real property (e.g., the collection of rents, the setting of the terms and conditions of continued occupancy, and the eviction of occupants) requires notice and an opportunity for a pre-seizure hearing. The most common examples of pleadings are found in the AFBB Civil Forms section, Complaint topic. The notice is to state that the government intends to seize the property on a specified date subsequent to the service of the notice. The notice also advises the potential claimant that he or she has the right and opportunity to request a hearing prior to that date and gives information as to the location of the courthouse for the filing of the request for hearing. Once a pre-seizure hearing has been provided, a warrant of arrest in rem is issued directing the U.S. Marshal to seize the property. A traditional form of warrant of arrest in rem is found in the AFBB Civil Forms section, Warrant topic. Judicial approval including a finding of probable cause is required following the pre-seizure hearing. Where state law allows, the filing of a complaint and a lis pendens should occur to prevent the transfer or encumbrance of the real property subject to forfeiture. The government must continue to provide all known persons or entities that may have a possessory or ownership interest in, or claim against, the defendant property with notice of the government's intent to forfeit regardless of whether the property is "seized" or "posted." Service of process, whether by personal service or mail, is still required. The U.S. Marshals Service must acquire an appraisal within 10 days of seizure. Occupancy agreements should be obtained in every case where the occupants continue to occupy the real property during the pendency of the case. Such agreements should take the form of a protective order or stipulated occupancy agreement by containing the appropriate style and heading of the case and should be signed by the court. (See Asset Forfeiture Policy Manual (1996), Chap. 5, Section II.C. at p.5-2, "Use of Seized Real Property By Occupants" and USAM 9-115.203.) A copy of the appropriate form of occupancy agreement can be found in the AFBB Civil Forms section, Pre-seizure topic. Removal of occupants is a substantial form of intrusion that may be undertaken by the government. Therefore, removal of occupants should not be sought at the outset of a case unless exigent circumstances exist and less intrusive measures (e.g., lis pendens, restraining order, or bond) have been tried and have failed, or a case can be made that such measures would prove ineffective (e.g., search and arrest warrants have been executed previously and the illegal activity continues). EXAMPLES: Exigent circumstances that may require immediate removal of occupants include: (1) danger to law enforcement officials or the public health and safety; (2) the continuation of illegal activity on the premises; or (3) the government is unable to prevent destruction or sale of the property.) In such cases, the occupants are likely to have a right to a prompt post-eviction hearing. In cases where an occupancy agreement or lis pendens would not be sufficient, protective and/or restraining orders should be pursued. [cited in USAM 9-111.130]