Free Response to Motion - District Court of Arizona - Arizona

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Ryan J. Lorenz, #019878 NORLING, KOLSRUD, SIFFERMAN, & DAVIS, P.L.C. 16427 North Scottsdale Road, Suite 210 Scottsdale, AZ 85254 Telephone: (480) 505-0015 Facsimile: (480) 505-0025 Attorneys for Claimant General Motors Acceptance Corporation

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. One 2002 Cadillac Escalade 4X4 Defendant, And Regarding the Interest of Carl D. Anderson and Darryl Scott And Regarding the Interest of General Motors Acceptance Corporation Claimants. Claimant, General Motors Acceptance Corporation ("GMAC"), through counsel, hereby respond to the Plaintiff's motion to strike the notice of supplemental authority. GMAC notified the court of the Georgia Supreme Court decision in General Motors Acceptance Corp. v. State, __ Ga. __, 613 S.E.2d 641 (May 23, 2005) for its persuasive value only. GMAC acknowledges that this court is not bound by the decision of the Georgia Supreme Court. However, the reasoning of the Georgia Supreme Court is instructive. The court was dealing with an innocent owner defense available to claimants NO. CIV 03 1504 PHX ROS CLAIMANT GENERAL MOTORS ACCEPTANCE CORPORATION'S RESPONSE TO PLAINTIFF'S MOTION TO STRIKE NOTICE OF SUPPLEMENTAL AUTHORITY

Case 2:03-cv-01504-ROS

Document 43

Filed 07/13/2005

Page 1 of 4

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under state law. OCGA § 16-13-49(e)(1).1

Because this decision was issued after the

reply on GMAC's motion for summary judgment, GMAC felt compelled to advise the court of the sound reasoning of another court construing a parallel forfeiture statute. The provision under the innocent owner defense bears a sufficiently strong resemblance to the Georgia statute to justify consideration of the Georgia court's opinion. See 18 U.S.C. § 983(d)(2)(A).2 More importantly, the facts before the Georgia Supreme Court and its lower courts were more favorable to the state. Yet the Georgia Supreme Court still found in favor of the innocent owner. In contrast to the facts of the instant case, GMAC was on notice in the Georgia case that the borrower had used other GMAC collateral for drug trafficking. GMAC was placed in the unenviable position of deciding whether to repossess other vehicles, collateral on other loans, which had not been demonstrated to have been used in drug trafficking. The Georgia court found GMAC's refusal to take a more aggressive approach to repossessing vehicles securing other debts unrelated to the originally forfeited vehicle as justifiable. The contrast lies in the amount of suspicion and facts available. In this case, GMAC did not have any notice of illegal activity. GMAC only had notice, according to the government, of the existence of several accounts which had been faithfully paid in accordance with the terms of existing installment contracts. The court should deny the government's motion to strike. GMAC merely wished

A property interest shall not be subject to forfeiture under this Code section if the owner of such interest or interest holder establishes that the owner or interest holder: (A) is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it and did not know and could not reasonably have known of the conduct or that it was likely to occur." Id. "[T]he term `innocent owner' means an owner who although (i) did not know of the conduct giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property." Id. - 2 Case 2:03-cv-01504-ROS Document 43 Filed 07/13/2005 Page 2 of 4
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to apprise the court of a well-reasoned decision of another court addressing facts more favorable to a state. The government in this case should fare no better than the state of Georgia in that case. DATED this 13 th day of July, 2005. NORLING, KOLSRUD, SIFFERMAN AND DAVIS, P.L.C. By /s/ Ryan J. Lorenz Ryan J. Lorenz Attorneys for Claimant General Motors Acceptance Corporation COPY of the foregoing mailed this 13 th day of July, 2005, to: Reid C. Pixler U. S. Attorney's Office Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004 Edrick Thompson 155 West Congress, Suite 404 Detroit, MI 48226 Attorney for Claimant Carl Anderson John Christian Robinson 95 Hill Highland Park, MI 48203-2548 Attorney for Darryl Scott /s/ Judy Darling

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G:\General M otors Acceptance Corporation\Forfeitures and Seizures\Anderson\response to motion to strike.wpd

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