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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law TENNESSEE DEPARTMENT OF SAFETY vs Infiniti G35X VIN No.JNKCV51F14M719561, Seized from: Noel B. McFarland, Date of Seizure: March 21, 2009 D.O.S. Cases No. J2400 & 2401, Claimant: Noel B. McFarland, Lienholder: Auto Brokers Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY IN THE MATTER OF: ) ) TENNESSEE DEPARTMENT ) OF SAFETY ) ) v. ) ) 2004 Infiniti G35X ) VIN No.JNKCV51F14M ) Seized from: Noel B. McFarland ) DOCKET NO J Date of Seizure: March 21, 2009 ) [D.O.S. Cases No. J2400 & 2401] Claimant: Noel B. McFarland ) Lienholder: Auto Brokers ) INITIAL ORDER, INCLUDING DEFAULT AND DISMISSAL, AS TO NOEL MCFARLAND The hearing in this matter came forward on Monday, August 31, 2009, in Nashville, Tennessee, before Mattielyn B. Williams, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting 1

3 for the Commissioner of the Tennessee Department of Safety. Mr. Orvil Orr, Staff Attorney, Tennessee Department of Safety, represented the State. Claimant Noel McFarland did not appear and had not requested a continuance. No attorney appeared on Claimant McFarland s behalf on August 31 st. Mr. Paul Wills and Ms. Lynne Wills, the principals of Auto Brokers, an unincorporated business, appeared on behalf of Auto Brokers, contending that it was the Lienholder on the subject vehicle. As of September 4, 2009, Attorney Bob Parker, of the Nashville bar, commenced representation of Auto Brokers. This matter became ready for consideration on October 12, 2009, with the filing of the State s Brief. The State moved for default, as to Claimant Noel McFarland, who timely filed a Petition for the return of the subject vehicle. The State filed Exhibit 1, a copy of the front of the envelope used to send the Claimant his copy of the Notice of Hearing, by certified mail. The Post Office attempted to deliver the Notice to the Claimant on August 1, August 5, August 7, and August 15, 2009, but then returned it to the State, marked Unclaimed; Unable to Forward. It was DETERMINED that the State made a reasonable and adequate effort to provide Claimant notice of the date, time, and location of the hearing. The State s Motion for Default, as to Claimant McFarland, was GRANTED. NOTICE OF DEFAULT 2

4 NOTICE IS HEREBY GIVEN THE CLAIMANT THAT THE CLAIMANT HAS BEEN HELD IN DEFAULT FOR THE CLAIMANT S FAILURE TO APPEAR AT A HEARING ON THE MERITS AFTER RECEIVING ADEQUATE NOTICE. T.C.A CLAIMANT HAS FIFTEEN (15) DAYS FROM THE EFFECTIVE DATE OF THIS ORDER TO REQUEST THAT THIS FINDING OF DEFAULT BE SET ASIDE. THIS REQUEST MUST BE RECEIVED IN THE OFFICE OF THE SECRETARY OF STATE, ADMINISTRATIVE PROCEDURES DIVISION, SUITE 800, WILLIAM R. SNODGRASS BUILDING, 312 EIGHTH AVENUE NORTH NASHVILLE, TENNESSEE 37243, WITHIN THAT 15-DAY PERIOD. THE REQUEST TO HAVE THE FINDING OF DEFAULT SET ASIDE SHOULD INCLUDE THE REASONS TO JUSTIFY THE CLAIMANT'S FAILURE TO ATTEND. IF SUFFICIENT REASONS ARE GIVEN, THE ORDER MAY BE SET ASIDE AND A NEW HEARING SCHEDULED. IF THE CLAIMANT DOES NOT REQUEST THE DEFAULT TO BE SET ASIDE OR OTHERWISE APPEAL THE ACCOMPANYING INITIAL ORDER, THEN THE INITIAL ORDER WILL BECOME A FINAL ORDER SUBJECT TO COURT REVIEW. ANY QUESTIONS REGARDING THIS NOTICE OF DEFAULT OR THE STEPS NECESSARY TO HAVE IT SET ASIDE SHOULD BE SUBMITTED TO THE ADMINISTRATIVE JUDGE SIGNING THIS ORDER BY LETTER OR BY TELEPHONING (615)

5 Claimant may move to have the Default Set Aside within fifteen (15) days, for good cause shown. ORDER When the car was seized by the White House Police Department, on March 21, 2009, Claimant McFarland was driving the subject vehicle. Claimant McFarland was arrested on March 21 st for Driving on a Revoked License (DOR) and for Driving Under the Influence (DUI). According to a certified copy of Claimant McFarland s driving record, Exhibit 2, Claimant McFarland was convicted of DUI on April 19, 2002, May 4, 2004, and July 25, Claimant McFarland s driving license remained revoked for DUI on March 21, The State moved that the claim of Claimant Noel B. McFarland be struck, for failure to appear, come forward, and present evidence. The State s Motion to Strike Claimant McFarland s claim was GRANTED. The State also moved that Claimant McFarland s interest, if any, in the subject vehicle, be forfeited to the seizing agency for disposition as provided by law. The State s Motion to Forfeit Claimant McFarland s interest, if any, was GRANTED. 4

6 As an Officer of the Court, the State s attorney advised that there was potentially another pending claim for the return of the seized vehicle. Auto Brokers filed a Petition as Lienholder on June 8, The hearing, then, proceeded as to the claim of Auto Brokers. The subject of this matter was the proposed forfeiture of the subject 2004 Infiniti, which was seized for its alleged operation by a Driver who was engaging in his second or subsequent DUI, and whose privilege to drive a motor vehicle had been revoked, pursuant to Tennessee Code Annotated and et seq. After consideration of the record, it is DETERMINED that the subject vehicle should be FORFEITED to the seizing agency, free from the claim or interest, if any, of Claimant Noel B. McFarland, and, free from being subject to the lien or ownership interest, if any, of Auto Brokers. of Law: This decision is based upon the following Findings of Fact and Conclusions FINDINGS OF FACT 1. On March 21, 2009, the subject vehicle was seized because it was being driven by Claimant Noel B. McFarland, during an arrest for DUI, at a time 5

7 when Claimant McFarland s driver s license was revoked for three (3) prior DUI convictions. 2. According to Mr. Paul Wills, one of the principals of Auto Brokers, Mr. Wills sold the subject vehicle to Claimant McFarland for $12, on October 13, 2008, using a Contract to Purchase, which showed no financing arrangements. The document showed the buyer and seller s names, the price, that the vehicle was sold As Is, and showed Auto Brokers as Lienholder. 3. Since Claimant McFarland had purchased two or three (2-3) other vehicles from Auto Brokers, then made lump sum payments for the entirety of the purchase price, Mr. Wills testified that he sold the subject vehicle to Claimant McFarland without requiring a down payment for it. 4. Mr. Wills permitted Claimant McFarland to drive the vehicle away from Auto Brokers property, with two (2) temporary tags. 5. Six or seven (6-7) months passed and Claimant McFarland did not make monthly or any other payments towards the purchase price. Mr. Wills further testified that at some point, he directed Claimant to park the subject vehicle, until he paid for it. 6. On April 20, 2009, nearly a month after the seizure of March 21 st, Auto Brokers registered the subject vehicle. The Certificate of Title shows Claimant McFarland as the owner and Auto Brokers as the Lienholder. 6

8 7. Mr. Wills testified that he relied on the advice of a non-attorney clerk, in the Registrar s Office, regarding how to protect Auto Brokers interest in the subject vehicle. 8. On June 8, 2009, Auto Brokers filed a Petition for return of the seized vehicle, as Lienholder. CONCLUSIONS OF LAW 1. The State is required to carry its burden of proof, by a preponderance of the evidence, that on March 21, 2009, Claimant McFarland was driving the subject vehicle during the commission of his second or subsequent DUI offense, and at a time when his driver s license was revoked for DUI, thus making the vehicle subject to forfeiture, pursuant to T.C.A et seq. It is CONCLUDED that the State carried its burden. 2. It is also CONCLUDED that Claimant McFarland s claim and interest, if any, in the subject vehicle, has been properly struck, based on the Claimant s default. 3. The vigorously disputed matter for decision, here, is whether or not Auto Brokers timely filed its Petition for return of the subject vehicle, whether it is a Lienholder or an Owner. 4. Pursuant to TCA Section (a), perfected lienholders and other individuals or businesses with secured interests in seized property are 7

9 required to file a Petition for hearing or to file evidence of their perfected lien or other interest in the seized property within thirty (30) days of its seizure. The subject vehicle was seized on March 21, Auto Brokers did not file until June 8, Thus, it is CONCLUDED that Auto Brokers failed to timely file, if it is a perfected lienholder. 5. Pursuant to TCA Section (b), unperfected lienholders may file Petitions to protect their interest in seized property, within thirty (30) days. The subject vehicle was seized on March 21, Auto Brokers did not file until June 8, Thus, it is CONCLUDED that Auto Brokers failed to timely file, if it is an unperfected lienholder. 6. Pursuant to TCA Section , individuals with an interest in seized property are required to file a Petition for hearing, stating their interest in the property, within thirty (30) days. The subject vehicle was seized on March 21, Auto Brokers did not file until June 8, Thus, it is CONCLUDED that Auto Brokers failed to timely file, if is an unincorporated business with an interest in the seized vehicle. 7. It is true that the State did not notify Auto Brokers of the seizure. However, the reason that the State was not able to identify Auto Brokers and notify it of the seizure is that when the State searched official vehicle registration records, Auto Brokers did not show as the Lienholder, or as the Owner, because Auto Brokers did not register the vehicle until nearly a month after the seizure. 8

10 Thus, it is CONCLUDED that Auto Brokers had the opportunity to protect itself legally, receive notice of the seizure, and indication of when and how to file, be it the Owner or the Lienholder; however, Auto Brokers own failure to register the vehicle from October to April caused the State not to be able to identify Auto Brokers as an entity with a possible claim or interest in the vehicle, and provide it notice. 8. At some point after March 21 st, Auto Brokers, apparently, learned of the seizure, yet, it apparently elected not to hire an attorney to discover the proper way to proceed to protect its interest, if any. This manner of proceeding is surprising, given the $12,000 or so value of the subject vehicle. Oddly, even after Auto Brokers registered the vehicle in April, Auto Brokers waited until June to file a Petition for hearing. 9. After Auto Brokers obtained an attorney in September, it claimed that it was the owner of the subject vehicle, not the Lienholder. 10. The State did not dispute that Auto Brokers purchased the subject vehicle from Infiniti Financial Services. However, the text of the contract and the Certificate of Title, both of which were developed and initiated by Auto Brokers, suggest that Claimant McFarland is the owner and that Auto Brokers is the lienholder. Admittedly, these documents were prepared without legal counsel. 9

11 11. Considering the indicia of ownership, although Auto Brokers says it asked Claimant McFarland not to drive the subject vehicle, prior to its seizure in March 2009, it is clear that Auto Brokers placed temporary tags on the vehicle and gave Claimant McFarland the keys. As a result of Auto Brokers actions, Claimant McFarland drove the subject vehicle, had possession of it, placed gas in it, presumably performed or had performed any maintenance needed, and exercised the right to control the vehicle. In fact, Claimant McFarland continued to control and drive the vehicle, despite Auto Brokers instructions or wishes to the contrary. 12. It is unclear why Auto Brokers did not have a tow truck re-possess it or otherwise remove it from Claimant McFarland s control, if it remained the owner. 13. Although the State and Auto Brokers dispute ownership, that question need not be resolved. Assuming, arguendo that Auto Brokers is or was the owner, then, pursuant to TCA Section , any person (including an owner added by the Undersigned) with an interest in seized property is required to file a Petition for hearing, stating their interest in the property, within thirty (30) days. The subject vehicle was seized on March 21, Auto Brokers did not file until June 8, Thus, it is CONCLUDED that Auto Brokers failed to timely file, if it is the owner. 10

12 14. Assuming arguendo that Auto Brokers is the owner, and setting aside timeliness of filing, one must consider whether or not Auto Brokers is an innocent owner. 15. It is surprising that, apparently, Auto Brokers never asked to see and/or photocopy Claimant McFarland s driver s license, during the course of multiple car sales, or even once it realized that Claimant McFarland was not providing payment for the vehicle, as he reportedly had for other vehicles, in the past. 16. It is interesting that Auto Brokers never reported the subject vehicle as stolen, once payment was not forthcoming. It is remarkable how McFarland continued to drive the subject vehicle, allegedly against Auto Brokers wishes, without Auto Brokers retrieving it or re-possessing the vehicle, via tow truck if necessary. There was no testimony to suggest that Auto Brokers retained a set of keys to the vehicle. 17. Based on this cluster of facts (no DL check; no theft report; no tow truck retrieval; continued non-payment), it is CONCLUDED, by a preponderance of the evidence, that if Auto Brokers is the owner, Auto Brokers is NOT an innocent owner. 18. Based on the foregoing, it is hereby ORDERED that the seized 2004 Infiniti be FORFEITED to the seizing agency, for disposition as provided 11

13 by law, free from being subject to the lien or ownership interest, if any, of Auto Brokers, and, free from the claim or interest, if any, of Claimant Noel B. McFarland. This Initial Order entered and effective this 6th day of January, Mattielyn B. Williams Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State this 6th day of January, Thomas G. Stovall, Director Administrative Procedures Division 12

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