CHAPTER 2. CIVIL REMEDIES FOR RACKETEERING ACTIVITY
IC 34-24-2
Chapter 2. Civil Remedies for Racketeering Activity
IC 34-24-2-1
Injunctive relief from corrupt business influence; action byprosecuting attorney
Sec. 1. The prosecuting attorney in a county in which the violationoccurs may bring an action under this section to enjoin a violation ofIC 35-45-6-2 (corrupt business influence). An action under thissection may be brought in any circuit or superior court in a county inwhich the violation occurs. If the court finds by a preponderance ofthe evidence that a violation of IC 35-45-6-2 has occurred, the courtmay:
(1) order a defendant to divest the defendant of any interest inany enterprise or property;
(2) impose reasonable restrictions upon the future activities orinvestments of a defendant, including prohibiting a defendantfrom engaging in the same type of endeavor as the enterprise inwhich the defendant was engaged in violation of IC 35-45-6-2;
(3) order the dissolution or reorganization of any enterprise;
(4) order the suspension or revocation of a license, permit, orprior approval granted to any enterprise by any agency of thestate;
(5) order the forfeiture of the charter of a corporation organizedunder the laws of Indiana, or the revocation of a certificateauthorizing a foreign corporation to conduct business within thestate, upon finding that:
(A) the board of directors or a managerial agent acting onbehalf of the corporation, in conducting the affairs of thecorporation, has authorized or engaged in conduct inviolation of IC 35-45-6-2; and
(B) for the prevention of future criminal activity, the publicinterest requires the charter of the corporation be forfeitedand the corporation dissolved or the certificate revoked; and
(6) make any other order or judgment that the court considersappropriate.
In any order or judgment made by the court under this section, thejudge shall make due provision for the rights of innocent persons,including a person having any rights, title, or interest of record in anyof the property.
As added by P.L.1-1998, SEC.19.
IC 34-24-2-2
Action for forfeiture of property incident to corrupt businessinfluence
Sec. 2. (a) The prosecuting attorney in a county in which any ofthe property is located may bring an action for the forfeiture of anyproperty:
(1) used in the course of;
(2) intended for use in the course of; (3) derived from; or
(4) realized through;
conduct in violation of IC 35-45-6-2.
(b) The inspector general may bring an action for forfeiture inaccordance with IC 4-2-7-6 in a county where property that is:
(1) derived from; or
(2) realized through;
misfeasance, malfeasance, nonfeasance, misappropriation, fraud, orother misconduct that has resulted in a financial loss to the state islocated.
(c) An action for forfeiture may be brought in any circuit orsuperior court in a county in which any of the property is located.
(d) Upon a showing by a preponderance of the evidence that:
(1) property described in subsection (a) was used in the courseof, intended for use in the course of, derived from, or realizedthrough conduct in violation of IC 35-45-6-2; or
(2) property described in subsection (b) was derived from orrealized through conduct described in subsection (b);
the court shall, subject to the right, title, or interest of record of anyother party in the property determined under section 4 of this chapter,order the property forfeited to the state and specify the manner ofdisposition of the property, including the manner of disposition if theproperty is not transferable for value.
(e) The court shall order forfeitures and dispositions under thissection:
(1) with due provision for the rights of innocent persons; and
(2) as provided under section 4 of this chapter.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,SEC.40.
IC 34-24-2-3
Order to have property subject to forfeiture seized
Sec. 3. When an action is filed under section 2 of this chapter, theprosecuting attorney or the inspector general may move for an orderto have property subject to forfeiture seized by a law enforcementagency. The judge shall issue such an order upon a showing ofprobable cause to believe that:
(1) a violation of IC 35-45-6-2, in the case of property describedin section 2(a) of this chapter; or
(2) conduct described in section 2(b) of this chapter, in case ofproperty described in section 2(b) of this chapter;
has occurred.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,SEC.41.
IC 34-24-2-4
Seizure of property subject to forfeiture; requisites; custody;limitation of actions
Sec. 4. (a) Property subject to forfeiture under this chapter shallbe seized by a law enforcement officer upon court order. Seizure may
be made without a court order only if:
(1) the seizure is incident to a lawful arrest or search, or to aninspection under an administrative inspection warrant; or
(2) the property subject to seizure has been the subject of aprior judgment in favor of the state in a forfeiture proceedingunder this chapter (or IC 34-4-30.5 before its repeal).
(b) When property is seized under subsection (a), pendingforfeiture and final disposition, the law enforcement officer makingthe seizure may:
(1) place the property under seal;
(2) remove the property to a place designated by the court; or
(3) require another agency authorized by law to take custody ofthe property and remove it to an appropriate location.
(c) Property seized under subsection (a) (or IC 34-4-30.5-4(a)before its repeal) is not subject to replevin, but is considered to be inthe custody of the law enforcement officer making the seizure,subject only to order of the court. However, if a seizure of propertyis made in accordance with subsection (a), the prosecuting attorneyor the inspector general shall bring an action for forfeiture undersection 2 of this chapter within:
(1) thirty (30) days after receiving notice from any personclaiming a right, title, or interest in the property; or
(2) one hundred eighty (180) days after the property is seized;
whichever occurs first.
(d) If an action under subsection (c) is not filed within thirty (30)days after receiving notice from any person claiming a right, title, orinterest in the property, the claimant:
(1) is entitled to file a complaint seeking:
(A) replevin;
(B) foreclosure; or
(C) other appropriate remedy; and
(2) shall immediately obtain a hearing on the complaint asprovided in subsection (f).
If an action is not filed within one hundred eighty (180) days afterthe date of the seizure, and the property has not been previouslyreleased to an innocent person under section 5 of this chapter (orIC 34-4-30.5-4.5 before its repeal), the law enforcement agencywhose officer made the seizure shall return the property to its owner.
(e) If property is seized under subsection (a) (or IC 34-4-30.5-4(a)before its repeal) and the property is a vehicle or real property, theprosecuting attorney or the inspector general shall serve, within thirty(30) days after the date the property is seized and as provided by theIndiana Rules of Trial Procedure, notice of seizure upon each personwhose right, title, or interest is of record in the bureau of motorvehicles, in the county recorder's office, or other office authorized toreceive or record vehicle or real property ownership interests.
(f) The person whose right, title, or interest is of record may atany time file a complaint seeking:
(1) replevin;
(2) foreclosure; or (3) another appropriate remedy;
to which the state may answer in forfeiture within the appropriatestatutory period. The court shall promptly set the matter for ahearing, and in the case of replevin or foreclosure, the court shall setthe hearing as provided by the applicable statutory provisions.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,SEC.42.
IC 34-24-2-5
Rights of secured party in property subject to forfeiture
Sec. 5. (a) If a person holding a valid lien, mortgage, securityinterest, or interest under a conditional sales contract did not knowthe property was the object of corrupt business influence or conductdescribed in section 2(b) of this chapter, the court shall determinewhether the secured interest is equal to or in excess of the appraisedvalue of the property.
(b) Appraised value is to be determined as of the date of judgmenton a wholesale basis by:
(1) agreement between the secured party and the prosecutingattorney; or
(2) the inheritance tax appraiser for the county in which theaction is brought.
(c) If the amount due to the secured party is equal to or greaterthan the appraised value of the property, the court shall order theproperty released to the secured party.
(d) If the amount due the secured party is less than the appraisedvalue of the property, the holder of the interest may pay into thecourt an amount equal to the owner's equity, which shall be thedifference between the appraised value and the amount of the lien,mortgage, security interest, or interest under a conditional salescontract. Upon payment, the state or unit, or both, shall relinquish allclaims to the property.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,SEC.43.
IC 34-24-2-6
Action of aggrieved person for injunctive relief and damages fromcorrupt business influence; jury trial; right to forfeited property;state as aggrieved person
Sec. 6. (a) An aggrieved person may, in addition to proceedingunder section 4 of this chapter, bring an action for injunctive relieffrom corrupt business influence in a circuit or superior court in thecounty of the aggrieved person's residence, or in a county where anyof the affected property or the affected enterprise is located. If thecourt finds, through a preponderance of the evidence, that theaggrieved person is suffering from corrupt business influence, thecourt shall make an appropriate order for injunctive relief. This ordermust be made in accordance with the principles that govern thegranting of injunctive relief from threatened loss or damage in othercivil cases, except that a showing of special or irreparable damage to
the aggrieved person is not required. The court may order injunctiverelief only after the execution of a bond by the aggrieved person foran injunction improvidently granted, in an amount established by thecourt. In addition, the court may order a temporary restraining orderor a preliminary injunction, but only after a showing of immediatedanger of significant loss or damage to the aggrieved person.
(b) An aggrieved person may bring an action against a person whohas violated IC 35-45-6-2 in a circuit or superior court in the countyof the aggrieved person's residence, or in a county where any of theaffected property or the affected enterprise is located, for damagessuffered as a result of corrupt business influence. Upon a showing bya preponderance of the evidence that the aggrieved person has beendamaged by corrupt business influence, the court shall order theperson causing the damage through a violation of IC 35-45-6-2 to payto the aggrieved person:
(1) an amount equal to three (3) times the person's actualdamages;
(2) the costs of the action;
(3) a reasonable attorney's fee; and
(4) any punitive damages awarded by the court and allowableunder law.
(c) The defendant and the aggrieved person are entitled to a trialby jury in an action brought under this section (or IC 34-4-30.5-5before its repeal).
(d) In addition to any rights provided under section 4 of thischapter, an aggrieved person has a right or claim to forfeited propertyor to the proceeds derived from forfeited property superior to anyright or claim the state has in the same property or proceeds.
(e) If the state is an aggrieved person, the attorney general and theinspector general have concurrent jurisdiction with the prosecutingattorney to bring an action under this section.
As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,SEC.44.
IC 34-24-2-7
Relitigation of issues determined in criminal proceeding barred bycollateral estoppel
Sec. 7. In any action brought under this chapter (or IC 34-4-30before its repeal), the principle of collateral estoppel operates to barrelitigation of the issues previously determined in a criminalproceeding under IC 35-45-6-2.
As added by P.L.1-1998, SEC.19.
IC 34-24-2-8
Retention of attorney to bring action
Sec. 8. (a) A prosecuting attorney or the inspector general mayretain an attorney to bring an action under this chapter.
(b) An attorney retained under this section is not required to be adeputy prosecuting attorney but must be admitted to the practice oflaw in Indiana.As added by P.L.1-1998, SEC.19. Amended by P.L.222-2005,SEC.45.