725 ILCS 150/9

(725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)

Sec. 9. Judicial in rem procedures. If property seized under the provisions of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act is non-real property that exceeds $150,000 in value excluding the value of any conveyance, or is real property, or a claimant has filed a claim under subsection (C) of Section 6 of this Act, the following judicial in rem procedures shall apply:

(A) If, after a review of the facts surrounding the seizure, the State's Attorney is of the opinion that the seized property is subject to forfeiture, the State's Attorney shall institute judicial forfeiture proceedings by filing a verified complaint for forfeiture in the circuit court within whose jurisdiction the seizure occurred, or within whose jurisdiction an act or omission giving rise to the seizure occurred, subject to Supreme Court Rule 187. The complaint for forfeiture shall be filed as soon as practicable, but not later than 28 days after the filing of a verified claim by a claimant if the property was acted upon under a non-judicial forfeiture action, or 28 days after the State's Attorney receives notice from the seizing agency as provided under Section 5 of this Act, whichever occurs later. When authorized by law, a forfeiture must be ordered by a court on an action in rem brought by a State's Attorney under a verified complaint for forfeiture.

(A-5) If the State's Attorney finds that the alleged violation of law giving rise to the seizure was incurred without willful negligence or without any intention on the part of the owner of the property to violate the law or finds the existence of mitigating circumstances to justify remission of the forfeiture, the State's Attorney may cause the law enforcement agency having custody of the property to return the property to the owner within a reasonable time not to exceed 7 days. The State's Attorney shall exercise his or her discretion prior to or promptly after the preliminary review under Section 3.5 of this Act. Judicial in rem forfeiture proceedings under this Act shall be subject to the Code of Civil Procedure and the rules of evidence relating to civil actions.

(A-10) A complaint of forfeiture shall include:

(1) a description of the property seized;

(2) the date and place of seizure of the property;

(3) the name and address of the law enforcement agency making the seizure; and

(4) the specific statutory and factual grounds for the seizure.

The complaint shall be served upon the person from whom the property was seized and all persons known or reasonably believed by the State to claim an interest in the property, as provided in Section 4 of this Act. The complaint shall be accompanied by the following written notice:

"This is a civil court proceeding subject to the Code of Civil Procedure. You received this Complaint of Forfeiture because the State's Attorney's office has brought a legal action seeking forfeiture of your seized property. This complaint starts the court process where the state seeks to prove that your property should be forfeited and not returned to you. This process is also your opportunity to try to prove to a judge that you should get your property back. The complaint lists the date, time, and location of your first court date. You must appear in court on that day, or you may lose the case automatically. You must also file an appearance and answer. If you are unable to pay the appearance fee, you may qualify to have the fee waived. If there is a criminal case related to the seizure of your property, your case may be set for trial after the criminal case has been resolved. Before trial, the judge may allow discovery, where the State can ask you to respond in writing to questions and give them certain documents, and you can make similar requests of the State. The trial is your opportunity to explain what happened when your property was seized and why you should get the property back.".

(B) The laws of evidence relating to civil actions shall apply to all other proceedings under this Act except that the parties shall be allowed to use, and the court must receive and consider, all relevant hearsay evidence that relates to evidentiary foundation, chain of custody, business records, recordings, laboratory analysis, laboratory reports, and the use of technology in the investigation that resulted in the seizure of the property that is subject to the forfeiture action.

(C) Only an owner of or interest holder in the property may file an answer asserting a claim against the property in the action in rem. For purposes of this Section, the owner or interest holder shall be referred to as claimant. A person not named in the forfeiture complaint who claims to have an interest in the property may petition to intervene as a claimant under Section 2-408 of the Code of Civil Procedure.

(D) The answer must be signed by the owner or interest holder under penalty of perjury and must set forth:

(i) the caption of the proceedings as set forth on the notice of pending forfeiture and the name of the claimant;

(ii) the address at which the claimant will accept mail;

(iii) the nature and extent of the claimant's interest in the property;

(iv) the date, identity of transferor, and circumstances of the claimant's acquisition of the interest in the property;

(v) the names and addresses of all other persons known to have an interest in the property;

(vi) the specific provisions of Section 8 of this Act relied on in asserting it is exempt from forfeiture, if applicable;

(vii) all essential facts supporting each assertion;

(viii) the precise relief sought; and

(ix) in a forfeiture action involving currency or its equivalent, a claimant shall provide the State with notice of the claimant's intent to allege that the currency or its equivalent is not related to the alleged factual basis for the forfeiture, and why.

(E) The answer must be filed with the court within 45 days after service of the civil in rem complaint.

(F) The trial shall be held within 60 days after filing of the answer unless continued for good cause.

(G) The State, in its case in chief, shall show by a preponderance of the evidence that the property is subject to forfeiture; and at least one of the following:

(i) In the case of personal property, including conveyances:

(a) that the claimant was legally accountable for the conduct giving rise to the forfeiture;

(b) that the claimant knew or reasonably should have known of the conduct giving rise to the forfeiture;

(c) that the claimant knew or reasonably should have known that the conduct giving rise to the forfeiture was likely to occur;

(d) that the claimant held the property for the benefit of, or as nominee for, any person whose conduct gave rise to its forfeiture;

(e) that if the claimant acquired the interest through any person engaging in any of the conduct described above or conduct giving rise to the forfeiture:

(1) the claimant did not acquire it as a bona fide purchaser for value, or

(2) the claimant acquired the interest under such circumstances that the claimant reasonably should have known the property was derived from, or used in, the conduct giving rise to the forfeiture;

(f) that the claimant is not the true owner of the property;

(g) that the claimant acquired the interest:

(1) before the commencement of the conduct giving rise to the forfeiture and the person whose conduct gave rise to the forfeiture did not have authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or

(2) after the commencement of the conduct giving rise to the forfeiture and the owner or interest holder acquired the interest as a mortgagee, secured creditor, lienholder, or bona fide purchaser for value without knowledge of the conduct that gave rise to the forfeiture, and without the knowledge of the seizure of the property for forfeiture.

(ii) In the case of real property:

(a) that the claimant was legally accountable for the conduct giving rise to the forfeiture;

(b) that the claimant solicited, conspired, or attempted to commit the conduct giving rise to the forfeiture; or

(c) that the claimant had acquired or stood to acquire substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arm's length transaction;

(d) that the claimant is not the true owner of the property;

(e) that the claimant acquired the interest:

(1) before the commencement of the conduct giving rise to the forfeiture and the person whose conduct gave rise to the forfeiture did not have authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or

(2) after the commencement of the conduct giving rise to the forfeiture and the owner or interest holder acquired the interest as a mortgagee, secured creditor, lienholder, or bona fide purchaser for value without knowledge of the conduct that gave rise to the forfeiture, and before the filing in the office of the recorder of deeds of the county in which the real estate is located a notice of seizure for forfeiture or a lis pendens notice.

(G-5) If the property that is the subject of the forfeiture proceeding is currency or its equivalent, the State, in its case in chief, shall show by a preponderance of the evidence that the property is subject to forfeiture. If the State makes that showing, the claimant shall have the burden of production to set forth evidence that the currency or its equivalent is not related to the alleged factual basis of the forfeiture. After the production of evidence, the State shall maintain the burden of proof to overcome this assertion.

(G-10) Notwithstanding any other provision of this Section, the State's burden of proof at the trial of the forfeiture action shall be by clear and convincing evidence if:

(1) a finding of not guilty is entered as to all counts and all defendants in a criminal proceeding relating to the conduct giving rise to the forfeiture action; or

(2) the State receives an adverse finding at a preliminary hearing and fails to secure an indictment in a criminal proceeding related to the factual allegations of the forfeiture action.

(H) If the State does not meet its burden of proof, the court shall order the interest in the property returned or conveyed to the claimant and shall order all other property as to which the State does meet its burden of proof forfeited to the State. If the State does meet its burden of proof, the court shall order all property forfeited to the State.

(I) A defendant convicted in any criminal proceeding is precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding under this Act regardless of the pendency of an appeal from that conviction. However, evidence of the pendency of an appeal is admissible.

(J) An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this Act; however, for good cause shown, on a motion by the State's Attorney, the court may stay civil forfeiture proceedings during the criminal trial for a related criminal indictment or information alleging a violation of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act. Such a stay shall not be available pending an appeal. Property subject to forfeiture under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act shall not be subject to return or release by a court exercising jurisdiction over a criminal case involving the seizure of such property unless such return or release is consented to by the State's Attorney.

(K) Title to all property declared forfeited under this Act vests in the State on the commission of the conduct giving rise to forfeiture together with the proceeds of the property after that time. Except as otherwise provided in this Act, any such property or proceeds subsequently transferred to any person remain subject to forfeiture unless a person to whom the property was transferred makes an appropriate claim under this Act and has the claim adjudicated in the judicial in rem proceeding.

(L) A civil action under this Act must be commenced within 5 years after the last conduct giving rise to forfeiture became known or should have become known or 5 years after the forfeitable property is discovered, whichever is later, excluding any time during which either the property or claimant is out of the State or in confinement or during which criminal proceedings relating to the same conduct are in progress.

(M) No property shall be forfeited under this Act from a person who, without actual or constructive notice that the property was the subject of forfeiture proceedings, obtained possession of the property as a bona fide purchaser for value. A person who purports to transfer property after receiving actual or constructive notice that the property is subject to seizure or forfeiture is guilty of contempt of court and shall be liable to the State for a penalty in the amount of the fair market value of the property.

(N) If property is ordered forfeited under this Act from a claimant who held title to the property in joint tenancy or tenancy in common with another claimant, the court shall determine the amount of each owner's interest in the property according to principles of property law.

(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18; 100-1163, eff. 12-20-18.)