The opinion of the court was delivered by: Reagan, District Judge
I. Background and Procedural History
Petitioner, Tina Hall, the former wife of Defendant Mark Hall, contests the forfeiture of the property at 608 Autumn Avenue, Collinsville, Illinois ("the property" or "the subject property"). She contends that the property was awarded to her on July 10, 2006, in an uncontested divorce proceeding. The Government asserts that the property is subject to criminal forfeiture because it has been used for marihuana-related activities since no later than October, 1997. In the underlying criminal action, Mark Hall was charged in a three-count indictment as follows: (1) from approximately January, 2006, through about February 7, 2007, Mark Hall knowingly and intentionally possessed 100 or more marihuana plants with intent to manufacture marihuana; (2) on or about February 7, 2007, Mark Hall maintained the subject property for the purposes of manufacturing marihuana; and (3) a forfeiture count. (Doc. 17,Indictment). Mark Hall pled guilty to the charges and consented to the forfeiture of the property. On November 30, 2007, pursuant to FED. R. CRIM. P. 32.2, the Court entered a preliminary order for forfeiture of the property. (Doc. 58).
It is undisputed that Tina Hall's divorce decree awarded the property to her and provided that the parties were to execute the instruments necessary to vest title to the property in her.*fn1 The court indicated that it would sign the instrument if Mark Hall was unable or refused to sign. No documents were executed until May 8, 2007, when Mark Hall signed a quit-claim deed of his interest in the property to Tina Hall. She recorded the quit-claim deed on July 23, 2007.
On February 7, 2007, after the divorce decree was entered but before the quit-claim deed was signed and recorded, a search warrant executed on the property revealed that Mark Hall had been conducting a marihuana grow operation there. On February 8, 2007, the Government filed a civil forfeiture action against the property in United States v. 608 Autumn Avenue, Case No. 07-cv-109-WDS (S.D.Ill.). As part of the proceedings, the Government gave public notice of the forfeiture through a lis pendens filed in Madison County on February 12, 2007. On February 23, 2007, the property was identified as forfeitable in this cause and a lis pendens was filed in Madison County on March 29, 2007.*fn2 Tina Hall was personally served with notice on February 28, 2007. The civil forfeiture action was stayed on February 4, 2008, pending the outcome of the current proceedings.
Now before the Court are the Government's motion for partial summary judgment (Doc. 75) and Tina Hall's motion for summary judgment (Doc. 77). Both motion are fully briefed and ready for disposition. Summary judgment will be granted if the evidence presented in the motion "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c).
Criminal forfeiture proceedings are governed by 21 U.S.C. § 853, which provides, in relevant part:
Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law-
(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;
(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation[.] 21 U.S.C. § 853.
Under the statute's "relation back" provision, "All right, title, and interest in property described in subsection (a) of this section vests in the United States upon the commission of the act giving rise to forfeiture under this section." 21 U.S.C. 853(c).Notwithstanding these provisions, for certain persons who would otherwise lose their property to forfeiture, the statute also contains an "escape clause," as follows:
(6) If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that -
(A) the petitioner has a legal right, title or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the ...