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United States v. 2002 Mercedes Benz CLK 55 Vin No. WDBLK74G32T111035

United States District Court, District of Nevada

January 9, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
2002 MERCEDES-BENZ CLK 55 VIN NO. WDBLK74G32T111035, Defendant.

DANIEL G. BOGDEN United States Attorney District of Nevada MICHAEL A. HUMPHREYS Assistant United States Attorney Attorneys for the United States of America

ORDER UNITED STATES MOTION TO DISMISS THE ANSWER OF DELYANA NEDYALKOVA (ECF NO. 6)

The Plaintiff, United States of America, moves this Court to dismiss the answer of Delyana Nedyalkova in the above-captioned case because she has failed to file a verified claim pursuant to Supplemental Rule G(5). Rule G(5) and its interpretive case law, cited herein, make filing a verified claim an indispensable component to establish standing in civil forfeiture actions.

BACKGROUND AND FACTS

From 2008 to 2011, Eduard Petroiu and others were engaged in a massive fraud where the conspirators would offer cars, trucks and other conveyances for sale over the internet that did not exist or did not belong to the conspirators to sell. Relying on the schemers’ false promises, hundreds of unwitting buyer/victims sent money to the conspirators expecting to receive a car, or other type of conveyance, that was never delivered. Once targeted by law enforcement, the conspirators’ fraud scheme came to a swift end, culminating in their indictment in December 2011. A superseding indictment was returned against the defendants in October 2012. Delyana Nedyalkova (hereinafter, “Nedyalkova”) was one of the conspirators and pled guilty to Conspiracy to Commit Wire Fraud on November 25, 2013, and was sentenced on February 28, 2014. All but one of the 17 conspirators have pled guilty and have been sentenced.

On June 18, 2012, the Government personally served Nedyalkova, by and through her attorney Herbert Sachs, Esq., with the Complaint, the Order for Summons and Warrant of Arrest In Rem for the Property, the Summons and Warrant of Arrest in Rem for the Property, and the Notice. Notice of Filing Service of Process, (ECF No. 8, p. 34-49).

On July 9, 2012, Nedyalkova, by and through her attorney Herbert Sachs, Esq., filed an Answer to Plaintiff’s Complaint for Forfeiture with the Court. (ECF No. 6).

On July 9, 2012, Nedyalkova, by and through her attorney Herbert Sachs, Esq., filed a Certificate of Interested Parties with the Court. (ECF No. 7).

On July 26, 2012, the Government personally served Nedyalkova with the Complaint, the Order for Summons and Warrant of Arrest In Rem for the Property, the Summons and Warrant of Arrest in Rem for the Property, and the Notice. (ECF No. 8, p. 18-33).

The Notice described in plain terms how a putative claimant should go about filing a claim and answer and the time deadline for doing so. Based on the notice that both Nedyalkova and her attorney received, she should have filed her claim no later than August 29, 2012. However, Nedyalkova has never filed a claim.

As discussed below, by filing ONLY an answer, Nedyalkova failed to comply with the clearly-worded, mandatory requirements of Supplemental Rule G(5) and (6). As a result, caselaw both within and outside of this Circuit mandates that her Answer must be dismissed. . . .

ARGUMENT

A. Nedyalkova Must File a Rule G(5) Verified Claim to Establish Statutory Standing

A third-party litigant seeking to benefit from a forfeiture judgment has the burden to prove that s/he has a “legal interest” in the forfeited property to establish standing. United States v. Timley, 507 F.3d 1125, 1129-30 (8th Cir. 2007); United States v. Salti, 579 F.3d 656, 667 n. 11 (6th Cir. 2009) (claimant has the burden of proof on the standing issue). In addition, the claimant must strictly comply with any and all requirements of the forfeiture rules before his or her claim can be recognized. United States v. Real Property and Premises Known as 323 Forrest Park Drive, 2013WL 1316035 (6th Cir. April 2, 2013); United States v. Mack 600 Dump Truck, 680 F.Supp.2d 816, 825 (E.D. Mich. 2010).

To qualify as valid claimant, Nedyalkova must show that she has satisfied both the statutory and constitutional standing requirements. United States v. One 1985 Cadillac Seville, 866 F.2d 1142, 1148 (9th Cir. 1989) (“We require proper standing to contest a forfeiture both as a statutory matter and as an Article III and prudential matter.” Id. at 1148). Statutory standing is satisfied by showing strict compliance with the pleading requirements of Rule G(5), Supplemental Rules for Admiralty and Maritime Claims. United States v. $5, 730.00, 109 Fed.Appx. 712, 713 (6th Cir 2004). Colloquially stated, a claimant has to comply with all of the procedural requirements of the statute that authorizes him or her to file a claim. Constitutional standing means that the Claimant must show that s/he has an actual imminent injury, not a hypothetical, conjectural or abstract injury. United States v. Lazarenko, 476 F.3d 642, 649-50 (9th Cir. 2007). In other words, the claimant must “show ...


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