Bill Summary for H 397 (2015-2016)

Summary date: 

Apr 21 2015

Bill Information:

View NCGA Bill Details2015-2016 Session
House Bill 397 (Public) Filed Monday, March 30, 2015
AN ACT TO CLARIFY THAT UPON CONVICTION FOR EXPLOITATION OF AN OLDER ADULT OR DISABLED ADULT, ANY SEIZED ASSETS SHALL BE USED TO SATISFY THE DEFENDANT'S RESTITUTION OBLIGATION AS ORDERED BY THE COURT.
Intro. by Glazier.

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Bill summary

House committee substitute makes the following changes.

Deletes all provisions of the previous edition and replaces it with the following.

Amends GS 14-112.3, concerning assets involved in a violation of GS 14-112.2, exploitation of an older adult or disabled adult, as follows. No longer requires an application to the court to freeze or seize the assets of a defendant who appears to be about to divest him- or herself of assets so as to render the defendant insolvent for purposes of restitution to be made to the court with jurisdiction over the pending charges.

Adds that an order to freeze or seize assets must direct the order to be served as provided for under three specified provisions depending on the type of asset.

Requires personal property seized under the statute to be recorded and retained, but prohibits disposing of the property other than as provided for in the court order. Specifies actions that the law enforcement agency may take concerning frozen or seized property. 

Requires the court to deny a motion to release assets if the court finds that the defendant is about to, intends to, or did divest him- or herself of assets in a way that would render the defendant insolvent for purposes of restitution. 

Provides that if the prosecution of the charge under GS 14‑112.2 is terminated by voluntary dismissal without leave by the State or the court, or if a judgment of acquittal is entered, the court must vacate the order to freeze or seize the assets, and adds that if assets are released, accrued costs incident to the seizure, freeze, or storage of the assets must  not be charged against the defendant and must be assumed by the agency.

Provides that if a defendant is convicted or enters a plea of no contest, any frozen or seized assets must be used to satisfy restitution, but allows the court to accept an alternate form of restitution if the defendant can satisfy the restitution order at the time the order is entered. Specifies procedures concerning satisfying an order of restitution. 

Prohibits waiving any filing or service fees or any other money due to a state or county agency for the administration or use of GS Chapter 14 and provides that they are recoverable if charged against the defendant in the final disposition of the criminal matter.

Amends GS 1-116 to require any person who wants constructive notice of pending litigation concerning actions for asset freezing or seizure under GS 14-112.3 to file a separate, independent notice.

Amends GS 1-119 to make  a notice of lis pendens filed pursuant to GS 1‑116(a)(5)  (as provided for in the above paragraph) effective until the order to freeze or seize assets is terminated or an order directing the sale of real property under GS 14-112.3(e1)(1)c. is entered. Also makes this notice of lis pendens exempt from filing fees.

Amends GS 7A-308 to add that recording or docketing fees are not to be charged when the service is performed or documents are filed pursuant to GS 14-112.3.

Effective October 1, 2015, and applies to orders to freeze or seize assets issued on or after that date.

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