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Current Status Bill Number:View additional legislative information at the LPITS web site.3870 Ratification Number:352 Act Number:306 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19990407 Primary Sponsor:J. Smith All Sponsors:J. Smith, Harrison, Altman, Bailey, Bales, Campsen, Dantzler, Davenport, Edge, Emory, Harvin, Hayes, Keegan, Kelley, Lloyd, Lourie, Mack, Martin, McGee, Ott, Sandifer, Sharpe and Stuart Drafted Document Number:l:\council\bills\bbm\9164som99.doc Date Bill Passed both Bodies:20000517 Date of Last Amendment:20000502 Governor's Action:S Date of Governor's Action:20000526 Subject:Notoriety for Profit Act, Crimes and Offenses, Victims and witnesses, Courts, Judgments, Foreign; Torts History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ ------ 20000616 Act No. A306 ------ 20000526 Signed by Governor ------ 20000525 Ratified R352 House 20000517 Concurred in Senate amendment, enrolled for ratification Senate 20000503 Read third time, returned to House with amendment ------ 20000503 Scrivener's error corrected Senate 20000502 Amended, read second time ------ 20000428 Scrivener's error corrected Senate 20000427 Committee report: Favorable with 11 SJ amendment Senate 19990518 Introduced, read first time, 11 SJ referred to Committee House 19990514 Read third time, sent to Senate House 19990513 Read second time, unanimous consent for third reading on the next Legislative day House 19990512 Committee report: Favorable 25 HJ House 19990407 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill Revised on May 12, 1999 - Word format Revised on April 27, 2000 - Word format Revised on April 28, 2000 - Word format Revised on May 2, 2000 - Word format Revised on May 3, 2000 - Word format
(A306, R352, H3870)
AN ACT TO AMEND SECTION 15-35-920, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO FILING FOREIGN JUDGMENTS, SO AS TO PROVIDE A MEANING OF CONTESTED JUDGMENT AND PROVIDE NO ENCUMBRANCE OF THE JUDGMENT DEBTOR'S PROPERTY IN A CONTESTED JUDGMENT CASE IS ENFORCEABLE UNLESS CERTAIN FACTS ARE SHOWN TO THE COURT; TO AMEND SECTION 15-35-940, RELATING TO A DEBTOR'S MOTION FOR RELIEF FROM FOREIGN JUDGMENT, SO AS TO PROVIDE THE JUDGMENT CREDITOR MAY MOVE FOR ENFORCEMENT AFTER THE APPEALS ARE CONCLUDED AND THE JUDGMENT IS NOT FURTHER CONTESTED; TO REPEAL SECTIONS 15-59-40 THROUGH 15-59-80, RELATING TO MONIES PAID INTO COURT; AND TO AMEND CHAPTER 25, TITLE 17, RELATING TO JUDGMENT AGAINST PERSONS CONVICTED OF CRIME, BY ADDING ARTICLE 5 SO AS TO ENACT THE "SOUTH CAROLINA NOTORIETY FOR PROFIT ACT" WHICH SHALL PROVIDE PROCEDURES FOR THE RECOVERY OF PROFITS OBTAINED OR GENERATED FROM THE COMMISSION OF A CRIME BY ELIGIBLE PERSONS OR BY THE STATE OFFICE OF VICTIM ASSISTANCE.
Be it enacted by the General Assembly of the State of South Carolina:
Contested judgment; procedure for execution if contested
SECTION 1. Section 15-35-920 of the 1976 Code, as added by Act 80 of 1993, is amended to read:
"Section 15-35-920. (A) A copy of a foreign judgment authenticated in accordance with an act of Congress or the statutes of this State may be filed in the office of the clerk of court of any county of this State in which the judgment debtor resides or owns real or personal property. Along with the foreign judgment, the judgment creditor or his attorney shall make and file with the clerk an affidavit which states that the foreign judgment is final, that it is unsatisfied in whole or in part setting forth the amount remaining unpaid on the judgment, and whether the judgment is further contested. A contested judgment includes a judgment for which post-trial motions are pending before the trial court, notice of appeal has been filed, or an appeal is pending.
(B) Upon the filing of the foreign judgment and the affidavit, the foreign judgment must be docketed and indexed in the same manner as a judgment of this State; however, no foreign judgment may be indexed if contested until resolved and no execution may issue upon the foreign judgment nor may any other proceeding be taken for its enforcement until the expiration of thirty days from the date upon which notice of filing is served in accordance with Section 15-35-930.
(C) A judgment so filed has the same effect and is subject to the same defenses as a judgment of this State and must be enforced or satisfied in like manner; however, if the judgment is contested, or the judgment debtor files a motion for relief or notice of defense pursuant to Section 15-35-940, enforcement of the foreign judgment is stayed automatically, without security, except as hereinafter provided, until the court finally disposes of the matter. During the time a motion for relief is pending or a stay under this section is in effect, no levy, writ of attachment, or other encumbrance of the judgment debtor's property in furtherance of execution on the foreign judgment shall issue or otherwise be enforceable in this State unless after due notice to the judgment debtor and opportunity to be heard in a court of competent jurisdiction, the judgment creditor shows that the judgment debtor's property in this State has been or is about to be disposed of or removed from this State with intent to defraud the judgment creditor, or to otherwise deplete the assets for purposes of avoiding payment of the judgment."
Conclude appeals of foreign judgment before motion to enforce
SECTION 2. Section 15-35-940(B) of the 1976 Code, as added by Act 80 of 1993, is amended to read:
"(B) If the judgment debtor has filed a motion for relief or notice of defenses, then the judgment creditor may move for enforcement or security of the foreign judgment as a judgment of this State, if all appeals of the foreign judgment are finally concluded and the judgment is not further contested. The judgment creditor's motion must be heard before a judge who has jurisdiction of the matter based upon the amount in controversy as the amount remaining unpaid on the foreign judgment. The South Carolina Rules of Civil Procedure apply. The judgment creditor has the burden of proving that the foreign judgment is entitled to full faith and credit."
Repealed sections
SECTION 3. Sections 15-59-40 through 15-59-80 are repealed.
Notoriety for Profit Act, definitions; offender files contract for profits with state office; office notifies crime victims of profits from crime; victim's right to civil action to recover money damages up to value of profits; procedure; civil penalty for failure to file contract; office may collect penalty
SECTION 4. Chapter 25, Title 17 of the 1976 Code is amended by adding:
Section 17-25-500. This article may be known as the 'South Carolina Notoriety for Profit Act'.
Section 17-25-510. As used in this article:
(1) 'Office' means State Office of Victim Assistance in the office of the Governor.
(2) 'Convicted' includes any conviction by entry of a plea of guilty or nolo contendere, conviction after trial, a finding of guilty but mentally ill, or a finding of not guilty by reason of insanity.
(3) 'Eligible person' means:
(a) a victim of the particular crime in question who has suffered direct or threatened physical, psychological, or financial harm as a result of the commission of the particular crime;
(b) a victim's spouse;
(c) a victim's parent;
(d) a victim's child;
(e) a spouse, parent, child, or lawful representative of a victim who is:
(i) deceased;
(ii) a minor;
(iii) incompetent; or
(iv) physically or psychologically incapacitated; or
(f) a person dependent for principal support on the deceased victim of the crime.
'Eligible person' does not include the offender criminally responsible for the crime in question or a person aiding or abetting the offender criminally responsible.
(4) 'Offender' means the person convicted of the particular crime in question.
(5) 'Profit from a crime' includes any of the following:
(a) property obtained through or income generated from the commission of a crime for which the offender was convicted;
(b) property obtained or income generated from the sale, conversion, or exchange of proceeds of a crime for which the offender was convicted, including gain realized by the sale, conversion, or exchange; or
(c) property which the offender obtained or income generated as a result of having committed the crime for which the offender was convicted, including assets obtained through the unique knowledge obtained during the commission of or in preparation for the commission of the crime, as well as any property obtained by or income generated from the sale, conversion, or exchange of that property and any gain realized by that sale, conversion, or exchange.
Section 17-25-520. If an offender, or his representative or agent, knowingly contracts for or agrees to be paid any profit from a crime, he must give written notice to the office of the payment or the obligation to pay and a copy of the contract between the offender and contracting party as soon as practical after discovering that the payment or intended payment is a profit from a crime. The office, upon receiving notice of the contract, agreement to pay, or payment of profits from a crime, shall request from all agencies with the duty to notify crime victims pursuant to Article 15, Chapter 3 of Title 16, the name and last known address of any eligible person who is a victim of the offender of the crime in question. It is the duty of the office to notify all known eligible persons at their last known address of the existence of profits.
Section 17-25-530. (A) Notwithstanding any other provision of law or rule of civil procedure, an eligible person has the right to bring a civil action in a court of competent jurisdiction to recover money damages from an offender or the legal representative of that offender within three years of the discovery of the existence of any profits from the crime. Damages awarded in this action are recoverable only up to the value of the profits from the crime.
(B) If an action is filed under this article after the expiration of all other applicable statutes of limitation, any other eligible person must file an action for damages as a result of the crime within three years of:
(1) the actual discovery of the existence of the profits from the crime; or
(2) actual notice received from or notice published by the office of the discovery of the existence of profits, whichever is later.
(C) If profits from a crime remain after the payment of all claims made under this article, the office has the right to bring an action in a court of competent jurisdiction against an offender or the legal representative of that offender within two years of the discovery of the existence of any profits to recover payments made by the office pursuant to Article 13, Chapter 3 of Title 16 and expenses incurred by the office pursuant to Article 13, 14, or 15 of Chapter 3 of Title 16 or Section 24 of Article 1 of the South Carolina Constitution with regard to the crime or the offender in question.
Section 17-25-540. (A) Upon filing an action pursuant to Section 17-25-530, the eligible person shall give notice to the office by delivering or mailing a copy of the complaint. The eligible person may, prior to filing the action, notify the office of his intent to file an action in order to allow the office to apply for other appropriate remedies which are authorized prior to the commencement of an action.
(B) The office may act on behalf of all eligible persons and may apply for any remedies available to an eligible person bringing an action under Section 17-25-530. These remedies include the right of attachment, injunction, receivership, and notice of pendency. On the motion for a particular remedy, the moving party shall state whether any other remedy has been sought in the same action against the same offender. The court may require the moving party to elect its remedy.
(C) Upon receipt of a copy of the complaint, the office shall:
(1) use certified mail, return receipt requested, to notify all other known eligible persons whose addresses are known of the alleged existence of profits from a crime;
(2) publish, at least once a year for three years from the date it is initially notified by an eligible person under this section, a legal notice in newspapers of general circulation in the county where the crime was committed and in contiguous counties advising any eligible persons of the alleged existence of profits from a crime. The office may provide additional notice in its discretion; and
(3) avoid the wasting of the assets identified in the complaint as the newly discovered profits from a crime in any manner consistent with subsection (B).
Section 17-25-550. (A) An offender or his representative or agent who wilfully fails to submit to the office a copy of the contract described in Section 17-25-520 or who fails to pay to the office the monies or other consideration, as required by this article, is subject to a civil penalty of not less than ten thousand dollars but not more than an amount equal to three times the contract amount for each offense.
(B) If two or more individuals are subject to the penalties provided in this section, the individuals are jointly and severally liable for the payment of the penalty imposed.
(C) The office may bring an action to recover a civil penalty assessed under this section in a court of competent jurisdiction within six years after the cause of action accrues.
(D) Civil penalties imposed pursuant to this section must be paid to the office and used for the compensation of victims of crime.
Section 17-25-560. All state agencies, solicitors, and law enforcement agencies with knowledge of profit from a crime which an offender has obtained or generated shall report this information to the office promptly.
Section 17-25-570. Any action taken by an offender, whether by execution of a power of attorney, creation of corporate entities, or otherwise, to defeat the purpose of this article is null and void as against the public policy of this State."
Time effective
SECTION 5. The provisions of this act are severable. If any portion of this act is declared unconstitutional or the application of any part of this act to any person or circumstance is held invalid, the remaining portions of the act and their applicability to any person or circumstance shall remain valid and enforceable.
SECTION 6. SECTIONS 1 and 2 become effective upon approval by the Governor and shall apply to all actions pending on or after that date, without regard to the date on which a foreign judgment was rendered in a foreign state. SECTIONS 3, 4, and 5 become effective upon approval by the Governor.
Ratified the 25th day of May, 2000.
Approved the 26th day of May, 2000.
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