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Asset forfeiture and its potential affect on bankruptcy, P.1

Asset forfeiture is a topic that is typically discussed in the context of law enforcement, criminal prosecution and criminal defense, and understandably so. Asset forfeiture can and does impact bankruptcy proceedings, though, and we’ll look at this issue in this and our next post.

By asset forfeiture is meant the ability of law enforcement agencies, at both the state and federal level, to seize property believed to have been involved in criminal activity. Asset forfeiture is usually classified as either civil or criminal, the difference being whether or not the seizure of assets occurs in conjunction with criminal prosecution. In civil asset forfeiture, law enforcement agencies do not have to obtain a criminal conviction in order to be justified in seizing assets. All they need to do is prove that the property is subject to forfeiture. 

Those who have had assets seized in a criminal investigation are able to get their property back if they challenge the seizure in court. Different states have different laws concerning the standard of proof when it comes to civil asset forfeiture. Wisconsin, unlike many jurisdictions, requires the state to prove beyond a reasonable doubt that the seized property is subject to forfeiture. This is the criminal standard, whereas most states utilize the ordinary civil standard of preponderance of the evidence in forfeiture cases.

A lot has been written about the abuse of asset forfeiture by officers looking to funnel the value of seized assets back into the law enforcement agency. Under a federal asset forfeiture program, local law enforcement agencies are able to keep a significant percentage of the value of seized assets when they share them with the federal government. Different states have laws about how the value of seized assets is utilized and whether local law enforcement agencies may participate in asset-sharing with the federal government.

Asset forfeiture can have a significant impact on bankruptcy cases, depending on the circumstances, both for creditors and debtors. In our next post, we’ll look at this topic a bit more.

Sources:

Watchdog.org, “Bill aims to curb law enforcement money grabs in Wisconsin,” Paul Brennan, Aug. 13, 2015.

Forbes, “Civil Forfeiture Laws And The Continued Assault On Private Property,” Chip Mellor, June 8, 2011.

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