2005-11-30 CC Packet - Laserfiche WebLink

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must be affirmatively claimed and proven by the claimant by clear and convincing evidence. Once the government shows that probable cause exists for its use in the commission of a designated offense the burden shifts to the claimant to demonstrate by a preponderance of the evidence that a defense to forfeiture applies. Minn.Stat. 9169A.63, subd. 7( d). See, Hesse v. 2002 Chevrolet Avalanche, 2005 WL 525633 )Minn.App. Mar. 8, 2005) rev. denied May 25, 2005, citing One Blue 1977 AMC Jeep CJ-5 v. U.S., 783 F.2d 759, 761 (8th Cir. 1986).. There is a presumption of complicity or 'guilty knowledge' as to family & household members where the repeat offenders has three or more prior impaired driving convictions, family or household members are presumed to know that any use of a vehicle by the offender will be contrary to law. Minn.Stat. 9169A.63, subd. 7(d). Family members include extended family and household members include persons residing together or who regularly associate and communicate with one another outside of a workplace setting. If a vehicle owner has this relationship with the repeat DWI offender using their vehicle to commit a designated offense, the owner must demonstrate the use of reasonable steps to terminate that use to defeat the forfeiture. E. Security Interests and Leases 1. Not 011 Qualify for Priority Over the Interest of Government The lien must be listed on the registration of the vehicle (9169A.63, subd. 7(b)) to have presumptive priority over the government's interest. If its not its claimant must prove its validity, amount and priority by clear and convincing evidence. No Notice of Forfeiture need be seNed on informal lienholders until they claim an interest. (9169A.63, subd. 8(b )). Courts are hesitant to find that informal liens have priority over the forfeiting agency's interest leaving these lienholders to pursue their claim against the owner. The informal lienholder must also prove the loan was secured by the vehicle. If there was no repossession clause in the loan agreement it cannot be claimed that the vehicle secured repayment. Simple loan agreements without a repossession clause are subject to forfeiture. Blackwell v. 2002 Kia, 670 N.W.2d 19 (Minn.App.2003). 2. Where Security Interest Exceeds the Vehicle Value The government does not stand in the shoes of the debtor relative to the loan agreement. Where the outstanding loan balance exceeds the proceeds from the forfeiting agency's sale of the vehicle, the agency must turn over only the proceeds to the secured party after deducting the costs for the 6~