Commonwealth v. One Hundred Twenty-five Thousand One Hundred Ninety-one Dollars
Commonwealth v. One Hundred Twenty-five Thousand One Hundred Ninety-one Dollars
Opinion of the Court
Aftermath Cleaning Company, Inc. (Aftermath), contests the denial of its motion to intervene in a civil forfeiture case filed by the Commonwealth regarding assets seized from Michael Clancy. Aftermath argues that, as a judgment creditor, it should have been allowed to intervene as of right under Mass. R.Civ.P. 24(a)(2), 365 Mass. 769 (1974), or alternatively that the judge abused his discretion in denying permissive intervention pursuant to Mass.R.Civ.P. 24(b)(2). Because we conclude that
1. Background. In January, 2008, Aftermath filed a civil action against Michael Clancy and his father, Paul Clancy. In April, 2008, a judgment was entered against the Clancys in the amount of $6,700.10.
In December, 2008, pursuant to a drug investigation in which Michael Clancy was the target, police officers executed search warrants for a residence and a 2007 Mercedes-Benz automobile. As the police arrived, Michael Clancy pulled up to the residence in the Mercedes. After a search, the police arrested him and seized a total of $150,191 ($125,191 in cash and a $25,000 bank note), one hundred green pills believed to be Oxycodone, one hundred pills believed to be Percocet, and a substance believed to be marijuana. In January, 2009, the Commonwealth filed a civil complaint for forfeiture of the $150,191. Aftermath filed a motion to intervene in March, 2009, which the court denied.
2. Discussion. Under Mass.R.Civ.P. 24(a)(2),
The Massachusetts forfeiture statute, G. L. c. 94C, § 47, provides two ways in which the Commonwealth may initiate the proceedings: first, by way of an in rem proceeding pursuant to § 47(d) or, second, by motion filed in a related criminal proceeding pursuant to § 47(b). See Commonwealth v. Brown, 426 Mass. 475, 480 (1998). In the instant case, the Commonwealth initiated an in rem proceeding. Pursuant to c. 94C, § 47(d), the Commonwealth shall give notice to the “owner of . . . real property, moneys or other things of value and to such other persons as appear to have an interest” in the seized property, and the court must promptly conduct a hearing regarding the disposition of the seized property.
There is, however, a well-developed body of law regarding the type of interest required in Federal civil forfeiture actions, albeit for purposes of determining Article m standing. As we consider the Federal standing and rule 24(a)(2) intervention requirements to be analogous in these circumstances,
The First Circuit has explained that the analysis does not change when dealing with judgment creditors, where the judgment “would be only a general in personam judgment, not a secured interest against any particular asset that [the defendant in the forfeiture action] owned.” United States v. One-sixth Share of James J. Bulger in All Present & Future Proceeds of Mass Millions Lottery Ticket, 326 F.3d 36, 44 (1st Cir. 2003) (United States v. One-sixth Share). See, e.g., Smith, supra, par. 9.04[2][c], at 9-70.35 & n.102, citing United States v. $319,603.42 in U.S. Currency, 829 F. Supp. 1223 (D. Or. 1992), where “[a] judgment creditor who did not levy upon or otherwise attach currency and a certificate of deposit in a safe deposit box before the government seized them lacked standing because he was in the position of a general, unsecured creditor.”
We hold that a judgment creditor without a successful levy upon the seized property does not, as matter of law, have an “interest” in the seized property for the purposes of the Massachusetts forfeiture statute. In this instance, notwithstanding the execution issued by the court and the sheriff’s demands on Michael Clancy, Aftermath failed to attain a security interest in the property seized by the Commonwealth. Thus, Aftermath’s claim on the seized property is not sufficiently direct to constitute an interest under the Massachusetts forfeiture statute, and Aftermath is not entitled to intervene as of right under rule 24(a)(2).
Having reached this determination, we further conclude that
Judgment affirmed.
At oral argument, counsel for Aftermath explained that the amount was owed for a clean-up of property owned by the Clancys after a bloody altercation. Aftermath is apparently in the business of cleaning up crime scenes.
In October, 2009, Paul Clancy filed a motion to intervene in the civil forfeiture action. He argued that the seized assets belonged to him as they were drawn from his bank account without his knowledge, authority, or consent. The court allowed the motion in November, 2009.
Aftermath does not argue that Mass.R.Civ.P. 24(a)(1), which provides for intervention “when a statute of the Commonwealth confers an unconditional right to intervene” is applicable in this case.
The statute also provides that “[n]o forfeiture under this section shall extinguish a perfected security interest held by a creditor in a conveyance or in any real property.” G. L. c. 94C, § 47(a)(9).
As explained by the First Circuit, “Because civil forfeiture is an in rem proceeding, the property subject to forfeiture is the defendant. Thus, defenses against the forfeiture can be brought only by third parties, who must intervene. Generally, an intervenor must have independent standing if the intervenor would be the only party litigating a case.” United States v. One-sixth Share of James J. Bulger in All Present & Future Proceeds of Mass Millions Lottery Ticket, 326 F.3d 36, 40 (1st Cir. 2003).
That Paul Clancy was allowed to intervene in the forfeiture action does not
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