                              FOURTH DIVISION
                              ELLINGTON, P. J.,
                           BRANCH and MERCIER, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       May 27, 2016




In the Court of Appeals of Georgia
 A16A0479. LOVELESS v. STATE OF GEORGIA.

      MERCIER, Judge.

      In February 2015, the State of Georgia filed pursuant to OCGA § 16-13-49

(2014)1 a civil in rem complaint to condemn two amounts of cash (and other personal

property) that law enforcement officers had allegedly found in close proximity to

methamphetamine and marijuana during a search of Gary Loveless, his vehicle, and

a room in an extended stay hotel.

      Loveless filed an answer and amended answer to the complaint (collectively,

“Answer”), claiming ownership of one of the amounts of cash ($12,231) and

demanding its immediate return; denying allegations that the cash was found in close

      1
        OCGA § 16-13-49 (2014) was repealed and replaced effective July 1, 2015.
The forfeiture proceeding in this case, filed in February 2015, is thus governed by the
2014 version of the statute.
proximity to the drugs and that the cash had been used for, was intended to be used

for, or constituted proceeds from illegal drug activity; contending that the officers had

obtained the property in violation of his Fourth Amendment rights; and, stating that

he was facing drug charges in a related criminal matter, asserting his rights under the

Fifth Amendment (against self-incrimination) and under OCGA § 24-5-506 (a)

(prohibiting a person charged in a criminal proceeding from being compelled to give

evidence for or against himself). Loveless also contended that “answering the

statutory requirements of OCGA § 16-13-49 (o) may” provide the State with evidence

to be used against him, and that he was an innocent owner of the cash. See OCGA §

16-13-49 (e).

      The State filed motions to strike Loveless’s Answer and for default judgment,

asserting that the Answer did not comply with OCGA § 16-13-49 (o). After

conducting hearings on the State’s motions, the trial court found that the Answer had

failed to meet the requirements of OCGA § 16-13-49 (o) (3), in that Loveless had not

included therein information as to the nature and extent of his interest in the cash, the

date of the transfer, the identity of the transferor, and the circumstances of his

acquiring an interest in the cash. The court found that Loveless “ha[d] instead chosen

to assert a blanket right against self-incrimination in not meeting the requirements of

                                           2
[that statute],” and it noted that he had “never requested a stay of the forfeiture

proceedings pending the outcome of his criminal prosecution.” Loveless appeals the

court’s order granting the State’s motions to strike the Answer and for default

judgment condemning and forfeiting the property.

      1. Loveless contends that the trial court erred by striking his Answer, because

“the answer involved disputed facts and substantial questions of law dealing with

alleged unconstitutional seizure and specific assertion of statutory privilege.” This

contention is without merit.

             The trial court’s ruling on a motion to strike is reviewed for abuse
      of discretion. However, we conduct a de novo review of the trial court’s
      application of the law to undisputed facts, owe no deference whatsoever
      to the trial court’s conclusions of law, and are free for apply anew the
      legal principles to the facts.


Crimley v. State, 330 Ga. App. 639, 641 (768 SE2d 813) (2015) (citation and

punctuation omitted).

      “In a civil in rem forfeiture action, a claimant’s answer must be in strict

compliance with the special pleading requirements of OCGA § 16-13-49 (o) (3).”

Arreola-Soto v. State of Georgia, 314 Ga. App. 165, 166 (1) (723 SE2d 482) (2012);

see Sanders v. State, 259 Ga. App. 422, 425 (2) (577 SE2d 94) (2003) (a forfeiture

                                          3
action under OCGA § 16-13-49 is a civil proceeding). Where the answer does not

contain those requisite facts to support the claimant’s ownership assertions, it does

not comply with the statute’s specific pleading requirements. State of Ga. v. Alford,

264 Ga. 243, 245 (2) (444 SE2d 76) (1994). The pleading requirements of OCGA §

16-13-49 (o) (3) must be followed, and “[t]he failure to timely file an answer in strict

compliance with the specific pleading requirements of the forfeiture statute results in

dismissal” of the answer. Jones v. State of Ga., 241 Ga. App. 768, 769 (2) (527 SE2d

611) (2000); see Jett v. State of Ga., 230 Ga. App. 655, 657 (3) (498 SE2d 274)

(1998) (physical precedent only).

      Under OCGA § 16-13-49 (o) (3) (D) (2014), the answer filed by an owner of

property which asserts a claim against the property “must set forth: . . . [t]he date,

identity of transferor, and circumstances of the claimant’s acquisition of the interest

in the property. . . .” Loveless did not include in his Answer the date of the transfer

of the cash, the identity of the transferor, or the circumstances of his acquiring the

cash. He thus failed to satisfy the specific statutory pleading requirements regarding

factual information that must be included in claims or answers filed by those claiming

interests in seized property. Accordingly, the court did not err by striking Loveless’s

Answer as legally insufficient and by entering a default judgment of forfeiture. See

                                           4
Dearing v. State, 243 Ga. App. 198, 200, 203 (2) (532 SE2d 751) (2000); Jones,

supra.

         We find unconvincing Loveless’s argument that the privilege set out in the

Fifth Amendment and in OCGA § 24-5-506 overrides the clear and well-settled

requirement that, to be sufficient, an answer in a civil forfeiture proceeding must

include the information requested in OCGA § 16-13-49 (o) (3). Loveless cites no

Georgia cases on point that support his argument. We point out that

         there is no blanket Fifth Amendment right to refuse to answer questions
         in noncriminal proceedings. The privilege must be specifically claimed
         on a particular question and the matter submitted to the court for its
         determination as to the validity of the claim. . . . The questions must at
         the very least be considered on an individual basis and answered
         accordingly.


Tennesco, Inc. v. Berger, 144 Ga. App. 45, 48 (240 SE2d 586) (1977) (citations and

punctuation omitted). Loveless did not consider each question on an individual basis

and specifically claim privilege on each question. Instead, he “elect[ed] his rights .

. . against self-incrimination as well as . . . to be free from being compelled to give

evidence for or against himself,” adding that “answering the statutory requirement of

OCGA § 16-13-49 (o) may provide the State a colorable claim of association with


                                             5
others who may have been involved in activities unknown to respondent . . . which

. . . may provide the State a claim of association with what the state has now charged

as criminal activity.”

      Notably, there is considerable authority that in a civil forfeiture action, the

court may as a matter of law draw inferences from a property claimant’s invocation

of the right against self-incrimination, and such inferences may constitute admissions

unfavorable to him. Land v. State of Ga., 265 Ga. App. 859 (595 SE2d 540) (2004);

Sanders v. State of Ga., 259 Ga. App. 422, 425-426 (2) (577 SE2d 94) (2003)

(regarding Fifth Amendment); Simpson v. Simpson, 233 Ga. 17, 19-20 (209 SE2d

611) (1974) (permitting unfavorable inference to be drawn in civil cases from a

privileged refusal to testify, where witness claims privilege embodied in Georgia

statutes - such as former Ga. Code § 38-1205, which provided that no party shall be

required to testify as to certain matters; the court’s analysis was not limited to cases

in which a party asserts a privilege not to answer questions that have a direct

tendency to incriminate him, but also included cases in which a party asserts a

privilege from “answering any question which may form a link in the chain.”).

      The burden is on the individual claiming the privilege “to state the general

reason for his refusal to answer and to specifically establish that a real danger of

                                           6
incrimination existed with respect to each question.” Jett, supra, citing Petty v.

Chrysler Credit Corp., 169 Ga. App. 418 (312 SE2d 874) (1984) (citations and

punctuation omitted). Loveless did not meet that burden. The trial court may strike

an answer when it fails to comply with the requirements of OCGA § 16-13-49 (o) (3).

Holmes v. State of Ga., 270 Ga. App. 882 (1) (608 SE2d 325) (2004).

      Further, Loveless was not compelled to give evidence for or against himself in

order to answer the forfeiture petition, inasmuch as he could have requested a stay of

the forfeiture proceeding while the criminal case was pending, but did not do so. See

OCGA § 16-13-49 (w); Clemons v. State, 257 Ga. App. 96, 103 (3) (574 SE2d 535)

(2002).

      Loveless also complains that the trial court erred by striking his Answer when

he had raised therein a sufficient defense, namely that the search and seizure occurred

in violation of the Fourth Amendment. However, the Answer did not include those

factual disclosures that the statute required. See Arreola-Soto, supra. In the absence

of a legally sufficient answer, the trial court was without authority to consider the

suppression issue. See Jones, supra at 770 (4); Tuggle v. State of Ga., 224 Ga. App.

353, 355-356 (3) (480 SE2d 353) (1997).



                                          7
      The Answer filed was insufficient, and the court did not err by striking it. See

Jones, supra; Edwards v. State of Ga., 290 Ga. App. 467 (659 SE2d 852) (2008);

Howard v. State of Ga., 223 Ga. App. 323, 325 (477 SE2d 605) (1996) (failure to

comply with the strict pleading requirements of OCGA § 16-13-49 (o) (3) when

answering an in rem forfeiture petition is equivalent to filing no answer at all). Upon

striking the answer, the court was authorized to order the disposition of the seized

property. See OCGA § 16-13-49 (o) (4); Owens v. State of Ga., 241 Ga. App. 140 (3)

(525 SE2d 150) (1999).

      2. Loveless contends that the trial court erred by not granting his motion to

dismiss the condemnation complaint when no hearing was held within 60 days after

the complaint was served. See OCGA § 16-13-49 (o) (5) (2014). However, the 60-day

hearing requirement applies only where a sufficient answer was filed. See Owens,

supra; see Alford, supra. Where, as here, the Answer did not strictly comply with the

special pleading requirements of OCGA § 16-13-49 (o) (3), the 60-day hearing

requirement was not applicable. See Owens, supra; Portee v. State of Ga., 277 Ga.

App. 536, 538-539 (3) (627 SE2d 63) (2006).

      Judgment affirmed. Ellington, P. J., and Branch, J., concur.



                                          8
