Motion to Set Aside a Declaration of Forfeiture

If your property was seized for forfeiture within the last five years, but you never received a written personal “notice of seizure,” an attorney can help you file a “Motion to Set Aside Forfeiture under 18 U.S.C. § 983(e).”

If you did receive a personal notice or filed a petition (waiving your right to file a claim for court action), then you probably have no recourse to undo the forfeiture.

Over the years, we’ve partnered with other attorneys who need help filing and litigating a motion to set aside a declaration of forfeiture and resolve the underlying case.

We also represent clients who believe they would qualify to set aside a forfeiture and fight for the return of their property.


Steps to Set Up a Consultation with an Attorney

If you want to set up a consultation with an attorney, take these steps:

  1. The first step is to find the notice published on the forfeiture.gov website.
  2. What if you can’t find the published notice and never received a personal notice of seizure? At Sammis Law Firm, we keep an electronic copy of all such published notices of seizure going back five (5) years. We charge a flat fee of $1,000 to search for your notice and provide a free consultation with an attorney to discuss whether you qualify to file a motion to set aside a declaration of forfeiture and demand for court action. 
  3. To schedule the consultation, please email us a request to Tammy@sammislawfirm.com explaining your name and contact information, what property was seized and when, whether you received a personal notice or found the published notice on forfeiture.gov, and what you did in response, such as filing a claim or petition. When we receive the email, we will contact you to set up a consultation with an experienced civil asset forfeiture attorney.

What Does 18 U.S.C. § 983(e)(5) Provide?

The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) explains the general rules for civil forfeiture proceedings. 18 U.S.C. § 983. When CAFRA was enacted in 2000, its statutory provisions became “the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.” 18 U.S.C. § 983(e)(5).

But what happens if you never received proper notice of the administrative forfeiture? CAFRA authorizes an interested party a mechanism to challenge the seizure of property after a forfeiture proceeding has been completed. Specifically, the statute provides in pertinent part:

18 U.S. Code § 983(e)(1)

Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person’s interest in the property, which motion shall be granted if:

(A) the Government knew, or reasonably should have known of the moving party’s interest and failed to take reasonable steps to provide such party with notice; and

(B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.

18 U.S.C. § 983(e)(1).


How to Reopen a Forfeiture Proceeding

Even after an administrative forfeiture, a party may seek to set it aside and reopen forfeiture proceedings, for which a motion under 18 U.S.C. § 983(e) provides the “exclusive” avenue as explained in 18 U.S.C. § 983(e)(5).

Section 983(e) limits the bases for setting aside an administrative forfeiture to defects in the notice provided to a person with an interest in the property.

In fact, § 983(e)(1) explains that a section 983(e) motion “shall be granted if . . . the Government knew, or reasonably should have known, of the moving party’s interest and failed to take reasonable steps to provide such party with notice” and “the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.”

Likewise, in United States v. Brome, 942 F.3d 550, 552 (2d Cir. 2019), the court noted: “The right to seek to set aside [a] forfeiture is limited to claims of lack of adequate notice.” A motion under section 983(e) must be made within “5 years after the date of final publication of notice of seizure of the property.” Id. § 983(e)(3).

If granted, the declaration of forfeiture is set aside “without prejudice to the right of the Government to commence a subsequent forfeiture proceeding” as explained in § 983(e)(2)(A), meaning the most likely result is a reopened proceeding in which the claimant can attempt to prevent the forfeiture of his property.


Statute of Limitations for Setting the Forfeiture Declaration Aside

If you want to set aside a declaration of forfeiture because you did not receive notice, be aware that CAFRA also provides that “[a] motion to set aside the declaration of forfeiture must be filed no later than five years after the date of final publication of notice of seizure.” Landry v. United States, 600 F. App’x 216, 220 (5th Cir. 2015) (citing 18 U.S.C. § 983(e)(3)).

In some cases, the limitations period should be equitably tolled. “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in the way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).


Sample – Motion to Set Aside Forfeiture Under 18 U.S.C. § 983(e)


 

IN THE UNITED STATES DISTRICT COURT
FOR THE [DISTRICT NAME] DISTRICT OF [STATE NAME]

CASE NO. [Case Number]

[Plaintiff/Claimant Name],

Plaintiff/Claimant,

v.

[Name the head of the federal agency that seized the property],

Defendant.

MOTION TO SET ASIDE FORFEITURE UNDER 18 U.S.C. § 983(e)

Comes now, [Plaintiff/Claimant Name] (hereinafter “Plaintiff/Claimant”), by and through undersigned counsel, and hereby requests this Honorable Court to set aside the administrative forfeiture of the property described below pursuant to 18 U.S.C. § 983(e). Plaintiff/Claimant seeks relief under 18 U.S.C. § 983(e), which allows a person entitled to notice of a forfeiture proceeding but did not receive such notice to petition the court to set aside the forfeiture.

In support of this motion, Plaintiff/Claimant makes the following showing:

  1. On [date of forfeiture] at [location of seizure], [name of the agency that seized the property] (hereinafter “seizing agency”) seized the following property: [description of the property, including any identification numbers, if applicable] (hereinafter “the property”). 
  2. The property was seized for a nonjudicial civil forfeiture proceeding under a civil forfeiture statute. 
  3. Plaintiff/Claimant has a legal interest in the seized property because… [describe the nature of the interest, such as ownership, bailor/bailee relationship, lienholder, etc.]
  4. Under 18 U.S. Code § 983(a)(1)(A)(i), the Government was required to send a written notice of seizure to Plaintiff/Claimant as an interested party because …..
  5. Plaintiff/Claimant did not receive proper notice of the forfeiture proceedings as required by law.
    • [Optional: Provide details and evidence supporting the lack of notice, such as incorrect address, failure to serve notice, etc.]
  6. The Government knew, or reasonably should have known, of the moving party’s interest because…
  7. The Government failed to take reasonable steps to provide the Plaintiff/Claimant with notice.
  8. As a result, Plaintiff/Claimant did not know or have reason to know of the seizure within sufficient time to file a timely claim.
  9. Plaintiff/Claimant has filed a verified claim for court action with the agency to trigger the commencement of a judicial forfeiture proceeding as to the interest of the Plaintiff/Claimant when this motion is granted.
  10. This motion is filed within the statutory time limits outlined in 18 U.S.C. § 983(e)(3), which is not later than 5 years after the date of final publication of notice of seizure of the property.
  11. On [date], the United States Government initiated administrative forfeiture proceedings against the aforementioned property.
  12. On [date], a Declaration of Forfeiture was issued by the [Name of Agency] declaring the property forfeited to the United States.
Requested Relief
Plaintiff/Claimant requests that this Honorable Court:
  1. grants the Motion to Set Aside Forfeiture under 18 U.S.C. § 983(e) as to the interest of Plaintiff/Claimant without prejudice to the right of the Government to commence a subsequent judicial forfeiture proceeding as to the interest of the Plaintiff/Claimant and provide any other relief the Court deems just and proper; and
  2. pursuant to 18 U.S.C. § 983(e)(4), if the forfeited property has been disposed of by the Government in accordance with law, the Government may institute proceedings against a substitute sum of money equal to the value of the moving party’s interest in the property at the time the property was disposed of.

Conclusion

For the reasons stated above, Plaintiff/Claimant respectfully requests that this Honorable Court grant the relief sought herein.

DATED: [Date]

Respectfully submitted,

[Attorney’s Name]
[Law Firm Name]
[Address]
[City, State, ZIP Code]
[Phone Number]
[Email Address]
[Attorney’s Bar Number]

CERTIFICATE OF SERVICE

I hereby certify that on [Date], I served the foregoing Motion to Set Aside Forfeiture under 18 U.S.C. § 983(e) upon the following parties by mailing a copy thereof via certified mail, return receipt requested, to:

[name of director of the federal agency]

[address of the federal agency’s headquarters]

Additionally, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all registered participants.

[Attorney’s Name]
[Signature Block]


Attorney to File a Motion to Set Aside a Declaration of Forfeiture

If you want to set aside a declaration of forfeiture in federal court because you were not properly served with a notice, contact an attorney at Sammis Law Firm in Tampa, FL.

We help clients after federal law enforcement agents seize their assets or property at the FBI, ATF, Homeland Security, ICE, or CBP. With offices conveniently located in Tampa, FL, we can help.

Call 813-250-0500.


This article was last updated on Friday, March 24, 2024.