Filing a Claim and What It Must Contain
A claim is a short document with an outsized effect. It ends an agency's power to forfeit property by declaration, makes its filer a party, and starts a ninety-day period in which the government must go to court or let the property go.
The rule in short
A claim must identify the specific property, state the claimant's interest and be made under oath subject to penalty of perjury by the claimant rather than by counsel. No bond may be required in a proceeding governed by the reform statute. In an agency case the deadline is the date stated in the notice letter, no earlier than thirty-five days after mailing. In court the claim is due thirty days after service of the complaint, and an answer follows.
The claim is the shortest document in a forfeiture case and the one that decides whether there will be a case at all. It runs to a page. It identifies property, states an interest and carries an oath. What it does is disproportionate to its length: it strips a seizing agency of the power to complete the forfeiture on its own, and it obliges the government either to file suit within a fixed period or to give the property back.
The claim in an agency proceeding
In a nonjudicial proceeding the claim is filed with the seizing agency by the deadline the notice letter states, and that date may be no earlier than thirty-five days after the letter is mailed. Where no letter was received, the claim is due thirty days after the date of final publication. The mechanics of both deadlines are set out in the notice a seizing agency must send.
Three contents are required. The claim must identify the specific property being claimed, state the claimant's interest in that property, and be made under oath subject to penalty of perjury. A claim that asserts an interest in unspecified funds, or that describes the property only by reference to the notice, invites a challenge on the first element. Stating the interest means saying what the interest is, not merely that one exists.
Two things are not required. No bond may be demanded as a condition of filing in a proceeding governed by the reform statute, which removed the cost bond the older customs procedure imposed. And the claim need not argue the merits. It is not a brief, it does not have to anticipate the government's theory, and adding argument creates sworn statements that will be tested later.
The oath and who must give it
The oath is where claims fail most often. The regulation governing claims requires the oath to be the claimant's own and to recite penalty of perjury in the form that federal law provides for unsworn declarations. A signature by counsel on the claimant's behalf does not satisfy it. A notarial acknowledgment attached to a document that never says the statement is made under penalty of perjury does not satisfy it either, because the acknowledgment verifies the identity of the signer rather than the truth of the contents.
The same requirement appears on the judicial side. Supplemental Rule G(5)(a)(i) requires a claim to be signed by the claimant under penalty of perjury, in addition to identifying the specific property claimed, identifying the claimant and stating the claimant's interest, and being served on the government attorney. The overlap is deliberate: a claimant who moves from an agency proceeding into a court case faces the same verification requirement in both places.
Agencies and courts have declined to treat a defective oath as a technicality, and the deadline usually passes before the defect is noticed. Two errors account for most of them: counsel signing for a client who is unavailable, and a form that carries a notary block but no penalty-of-perjury language. Requesting a claim form from the agency does not extend the deadline, and neither does an intention to correct the signature later.
The claim in a court case
Where the government files a civil forfeiture complaint, the claim is filed in the district court rather than with the agency. The statute gives a claimant thirty days after service of the complaint, or thirty days after final publication where service was not made.
Supplemental Rule G states the same requirement through its notice provisions: the claim is due by the time the direct notice specifies, which must allow at least thirty-five days after the notice is sent; where only published notice was given, thirty days after final newspaper publication or sixty days after the first day of internet publication; and where neither form of notice was given, sixty days measured as the rule provides.
Filing the claim is the first of two steps. An answer to the complaint, or a motion under Rule 12, follows within a short period, and the government may serve interrogatories directed at the claimant's connection to the property without asking leave of court. That sequence, and the divergence between the rule and the statute on how long the answer period runs, is set out in the answer and the interrogatories that follow it.
| Requirement | Agency proceeding | Court proceeding |
|---|---|---|
| Where it is filed | With the seizing agency at the address in the notice | In the district court, and served on the government attorney |
| Deadline after direct notice | The date stated, no earlier than thirty-five days after mailing | Thirty days after service of the complaint |
| Deadline on publication alone | Thirty days after final publication | Thirty days after final newspaper publication, or sixty days after the first day of internet publication |
| Who signs | The claimant, under penalty of perjury | The claimant, under penalty of perjury |
| Bond | None may be required | None may be required |
| What follows | Referral to a United States attorney | An answer or a Rule 12 motion, then interrogatories |
The ninety-day duty a claim creates
Once a claim is filed, the government has ninety days to file a complaint for forfeiture or to obtain a criminal indictment containing an allegation that the property is subject to forfeiture, and in the criminal case it must take the steps necessary to preserve its right to maintain custody. If it does neither within the period, it must promptly release the property and may not take any further action to forfeit it in connection with the underlying offense. A court may extend the period for good cause shown or on agreement of the parties.
The bar that follows a lapse is unusually strong. It is not merely a dismissal without prejudice: the government loses the ability to forfeit that property in connection with that offense. The release provision does not, however, resolve title or foreclose the use of the property as evidence, and it does not reach contraband. The choice among the available routes at that point is described in the three routes federal forfeiture can take.
What a missed deadline leaves
If no claim is filed by the stated date, the agency completes the forfeiture by declaration and the property is gone. Two remedies survive, and neither is a substitute for the claim. A petition for remission or mitigation goes to the seizing agency's ruling official, is decided without a hearing, and is an act of grace rather than a right; the regulation asks that petitions be submitted within thirty days of receiving notice but permits them at any time until the property has been forfeited.
The second remedy is narrower still. A person entitled to written notice who did not receive it may move to set aside the declaration of forfeiture, within five years of the date of final publication of notice of seizure. That motion attacks the notice rather than the merits, and success returns the parties to the point at which a claim could have been filed. Merits defenses such as the one described in the statutory defense available to an innocent owner become available only once a claimant is properly before a court.
Points to carry away
- A claim must identify the specific property, state the claimant's interest and be signed under penalty of perjury.
- The oath must be the claimant's own; a signature by counsel or a notarial acknowledgment alone does not satisfy it.
- No bond may be required as a condition of filing a claim in a proceeding governed by the reform statute.
- Once a claim is filed the government has ninety days to file a civil complaint or obtain an indictment with a forfeiture allegation.
- If the government does neither, it must promptly release the property and may not pursue forfeiture for the underlying offense.
- A judicial claim is due thirty days after service of the complaint, and an answer follows the claim.
Questions readers ask
Can more than one person claim the same property?
Yes, and competing claims are common where a vehicle is registered to one person and financed by another, or where an account is held jointly. Each claimant files separately and each must satisfy the contents and oath requirements independently. A lienholder claims the extent of its recorded interest rather than the property as a whole. Where the interests overlap, the court resolves priority as part of the disposition rather than by choosing one claimant, and a partial interest can survive a forfeiture that defeats the rest.
Does filing a claim expose the claimant to questioning?
It exposes the claimant to the litigation that follows. A sworn claim is a pleading, and the government may test it through special interrogatories limited to the claimant's identity and relationship to the property, and later through ordinary discovery. Statements in the claim are made under penalty of perjury and can be used. Where a criminal investigation is open, that overlap presents a real problem, and courts have addressed it through stays and protective orders rather than by excusing the claim requirement.
What does a claimant recover after winning?
On entry of judgment for the claimant the property is returned forthwith. Where a claimant substantially prevails in a civil forfeiture proceeding, the United States is liable for reasonable attorney fees and other litigation costs, for post-judgment interest, and, in the case of currency or negotiable instruments, for interest from the date of seizure. The statute carves out intangible benefits and a claimant convicted of a crime for which the interest in the property was subject to forfeiture, and provides for apportionment among multiple claimants.
Sources
- 18 U.S.C. § 983 — General rules for civil forfeiture proceedingsSets the notice deadline, the claim deadline, the ninety-day complaint rule, the innocent owner defense, hardship release and proportionality review.
- 28 C.F.R. § 8.10 — ClaimsRequires the claim to be made under oath by the claimant and forbids a bond requirement.
- Supplemental Rule G, Federal Rules of Civil ProcedureGoverns in rem forfeiture pleading, notice, claims, answers, special interrogatories and motions to strike.
- 19 U.S.C. § 1608 — Seizure; claims; judicial condemnationProvides that a claim moves the matter from the agency to the United States attorney for court proceedings.
- 28 C.F.R. § 9.3 — Petitions in administrative forfeiture casesDescribes the petition for remission or mitigation and the ruling official who decides it without a hearing.
- 28 U.S.C. § 2465 — Return of property; attorney fees, costs, interestRequires return on judgment for the claimant and makes the United States liable to a claimant who substantially prevails.
Premier Defense Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Asset Forfeiture
Standing to Contest a Forfeiture
A claimant must show a colorable ownership or possessory interest in the property to satisfy Article III, and bare assertion is not enough. The statute defines an owner to include a leasehold, lien, mortgage, recorded security interest or valid assignment, and to exclude a nominee who exercises no dominion or control, a general unsecured creditor and an unexplained bailee. A motion to strike puts the burden of establishing standing on the claimant by a preponderance.
Proportionality Review and the Excessive Fines Question
Under 18 U.S.C. § 983(g) a claimant may petition the court to determine whether a civil forfeiture is constitutionally excessive. The court compares the forfeiture to the gravity of the offense giving rise to it. The claimant must establish gross disproportionality by a preponderance of the evidence at a hearing without a jury, and if the standard is met the court reduces or eliminates the forfeiture to avoid violating the Excessive Fines Clause.
The Innocent Owner Defense and Its Two Forms
Under 18 U.S.C. § 983(d) an innocent owner's interest is not forfeited under any civil forfeiture statute, and the claimant carries the burden by a preponderance of the evidence. An interest held before the conduct is protected by lack of knowledge or by reasonable steps to terminate the use. An interest acquired afterward is protected only by bona fide purchaser status, with a narrow exception for a primary residence taken by marriage, divorce, separation or inheritance.