As Reported by the Senate Judiciary Committee            1            

123rd General Assembly                                             4            

   Regular Session                                   S. B. No. 30  5            

      1999-2000                                                    6            


                          SENATOR LATTA                            8            


                                                                   10           

                           A   B I L L                                          

             To amend sections 2329.13, 2329.14, 2329.26, and      12           

                2329.27 of the Revised Code to require that a      13           

                specified written notice be given to certain                    

                parties to the underlying action prior to an       14           

                execution sale of real or personal property and                 

                to specify consequences of an execution sale that  15           

                occurs after that notice and public notice by      16           

                newspaper publication has been given.                           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        18           

      Section 1.  That sections 2329.13, 2329.14, 2329.26, and     20           

2329.27 of the Revised Code be amended to read as follows:         21           

      Sec. 2329.13.  The (A)  GOODS AND CHATTELS LEVIED UPON BY    31           

VIRTUE OF AN EXECUTION OF A COURT OF RECORD SHALL NOT BE SOLD                   

UNTIL BOTH OF THE FOLLOWING OCCUR:                                 32           

      (1)(a)  EXCEPT AS OTHERWISE PROVIDED IN DIVISION (A)(1)(b)   36           

OF THIS SECTION, THE JUDGMENT CREDITOR WHO SEEKS THE SALE OF THE   37           

GOODS AND CHATTELS OR THE JUDGMENT CREDITOR'S ATTORNEY DOES BOTH   38           

OF THE FOLLOWING:                                                  39           

      (i)  CAUSES A WRITTEN NOTICE OF THE DATE, TIME, AND PLACE    42           

OF THE SALE TO BE SERVED IN ACCORDANCE WITH DIVISIONS (A) AND (B)  43           

OF CIVIL RULE 5 UPON THE JUDGMENT DEBTOR AND UPON EACH OTHER       45           

PARTY TO THE ACTION IN WHICH THE JUDGMENT GIVING RISE TO THE       46           

EXECUTION WAS RENDERED;                                                         

      (ii)  AT LEAST THREE CALENDAR DAYS PRIOR TO THE DATE OF THE  49           

SALE, FILES WITH THE CLERK OF THE COURT THAT RENDERED THE          50           

JUDGMENT GIVING RISE TO THE EXECUTION A COPY OF THE WRITTEN        51           

                                                          2      

                                                                 
NOTICE DESCRIBED IN DIVISION (A)(1)(a)(i) OF THIS SECTION WITH     53           

PROOF OF SERVICE ENDORSED ON THE COPY IN THE FORM DESCRIBED IN     54           

DIVISION (D) OF CIVIL RULE 5.                                      57           

      (b)  SERVICE OF THE WRITTEN NOTICE DESCRIBED IN DIVISION     61           

(A)(1)(a)(i) OF THIS SECTION IS NOT REQUIRED TO BE MADE UPON ANY   62           

PARTY WHO IS IN DEFAULT FOR FAILURE TO APPEAR IN THE ACTION IN     63           

WHICH THE JUDGMENT GIVING RISE TO THE EXECUTION WAS RENDERED.      64           

      (2)(a)  SUBJECT TO DIVISION (A)(2)(b) OF THIS SECTION, THE   68           

officer who levies upon THE goods and chattels by virtue of an     70           

execution by a court of record, before he proceeds to sell them    71           

shall give GIVES public notice of the DATE, time, and place of     73           

THE sale, for at least ten days before the day of sale. Such       75           

notice shall be given by advertisement published in a newspaper    76           

published in and of general circulation in the county.  The court  77           

ordering such THE sale may, DESIGNATE in the order of sale,        78           

designate the newspaper in which such THIS PUBLIC notice shall be  79           

published.                                                         80           

      Where (b)  IF the goods to be sold are merchandise or        82           

inventory used in connection with a trade or business, and such    84           

IF THE sale is to satisfy a judgment in favor of the state, or     86           

one of its political subdivisions, for delinquent taxes, PUBLIC    87           

notice OF THE SALE shall be given by published advertisement in a  89           

newspaper PUBLISHED IN AND of general circulation IN THE COUNTY    91           

once a week for three weeks preceding the date of the sale.  In    92           

the case of a sale of goods used in CONNECTION WITH a trade or     93           

business, notice of the location, date, and nature of such THAT    95           

sale ALSO shall be conspicuously posted on the premises where the  97           

trade or business is carried on, and on the premises where the     98           

goods to be sold are kept if such goods THEY are located           99           

elsewhere.                                                                      

      (B)(1)  A SALE OF GOODS AND CHATTELS LEVIED UPON BY VIRTUE   102          

OF AN EXECUTION OF A COURT OF RECORD MAY BE SET ASIDE IN           103          

ACCORDANCE WITH DIVISION (B)(2) OF THIS SECTION.                   104          

      (2)  SUBJECT TO DIVISIONS (B)(3) AND (4) OF THIS SECTION,    107          

                                                          3      

                                                                 
ALL SALES OF GOODS AND CHATTELS LEVIED UPON BY VIRTUE OF AN        108          

EXECUTION OF A COURT OF RECORD THAT ARE MADE WITHOUT COMPLIANCE    110          

WITH THE WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF      113          

THIS SECTION AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION        114          

(A)(2) OF THIS SECTION SHALL BE SET ASIDE, ON MOTION, BY THE       115          

COURT TO WHICH THE EXECUTION IS RETURNABLE.                        116          

      (3)  PROOF OF SERVICE ENDORSED UPON A COPY OF THE WRITTEN    118          

NOTICE REQUIRED BY DIVISION (A)(1)(a) OF THIS SECTION SHALL BE     121          

CONCLUSIVE EVIDENCE OF THE SERVICE OF THE WRITTEN NOTICE IN        122          

COMPLIANCE WITH THE REQUIREMENTS OF THAT DIVISION, UNLESS, PRIOR   123          

TO THE CONFIRMATION OF THE SALE OF THE GOODS AND CHATTELS AS       124          

DESCRIBED IN DIVISION (B)(4) OF THIS SECTION, A PARTY FILES A      126          

MOTION TO SET ASIDE THE SALE PURSUANT TO DIVISION (B)(1) OF THIS   127          

SECTION AND ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT    128          

THE PROOF OF SERVICE IS FRAUDULENT.                                129          

      (4)  IF THE COURT TO WHICH THE EXECUTION IS RETURNABLE       131          

ENTERS ITS ORDER CONFIRMING THE SALE OF THE GOODS AND CHATTELS,    132          

THE ORDER HAS BOTH OF THE FOLLOWING EFFECTS:                       133          

      (a)  THE ORDER SHALL BE DEEMED TO CONSTITUTE A JUDICIAL      136          

FINDING AS FOLLOWS:                                                             

      (i)  THAT THE SALE OF THE GOODS AND CHATTELS COMPLIED WITH   139          

THE WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF THIS      142          

SECTION AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION (A)(2) OF   143          

THIS SECTION, OR THAT COMPLIANCE OF THAT NATURE DID NOT OCCUR BUT  144          

THE FAILURE TO GIVE A WRITTEN NOTICE TO A PARTY ENTITLED TO        145          

NOTICE UNDER DIVISION (A)(1)(a) OF THIS SECTION HAS NOT            147          

PREJUDICED THAT PARTY;                                                          

      (ii)  THAT ALL PARTIES ENTITLED TO NOTICE UNDER DIVISION     151          

(A)(1)(a) OF THIS SECTION RECEIVED ADEQUATE NOTICE OF THE DATE,    152          

TIME, AND PLACE OF THE SALE OF THE GOODS AND CHATTELS.             153          

      (b)  THE ORDER BARS THE FILING OF ANY FURTHER MOTIONS TO     156          

SET ASIDE THE SALE OF THE GOODS AND CHATTELS.                      157          

      Sec. 2329.14.  When goods and chattels levied upon by        166          

execution cannot be sold for want of bidders, or FOR want of       167          

                                                          4      

                                                                 
time, the officer who makes the return shall annex to the          169          

execution a true inventory of the goods and chattels remaining                  

unsold.  The plaintiff in such THAT execution thereupon may have   171          

another execution issued directing the sale of the property GOODS  172          

AND CHATTELS levied upon; but it.  THE GOODS AND CHATTELS shall    174          

not be SO sold unless the time and place of sale is advertised as  175          

directed in WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF   177          

SECTION 2329.13 OF THE REVISED CODE AND THE PUBLIC NOTICE          178          

REQUIREMENTS OF DIVISION (A)(2) OF THAT section 2329.13 of the     179          

Revised Code FIRST HAVE BEEN SATISFIED.  DIVISION (B) OF THAT      180          

SECTION ALSO APPLIES TO ANY SALE OF GOODS AND CHATTELS LEVIED      181          

UPON BY VIRTUE OF A SUBSEQUENT EXECUTION OF A COURT OF RECORD      182          

UNDER THIS SECTION.                                                183          

      Sec. 2329.26.  (A)  Lands and tenements taken in execution   192          

shall not be sold until the BOTH OF THE FOLLOWING OCCUR:           193          

      (1)(a)  EXCEPT AS OTHERWISE PROVIDED IN DIVISION (A)(1)(b)   197          

OF THIS SECTION, THE JUDGMENT CREDITOR WHO SEEKS THE SALE OF THE   198          

LANDS AND TENEMENTS OR THE JUDGMENT CREDITOR'S ATTORNEY DOES BOTH  200          

OF THE FOLLOWING:                                                               

      (i)  CAUSES A WRITTEN NOTICE OF THE DATE, TIME, AND PLACE    203          

OF THE SALE TO BE SERVED IN ACCORDANCE WITH DIVISIONS (A) AND (B)  205          

OF CIVIL RULE 5 UPON THE JUDGMENT DEBTOR AND UPON EACH OTHER       208          

PARTY TO THE ACTION IN WHICH THE JUDGMENT GIVING RISE TO THE       209          

EXECUTION WAS RENDERED;                                                         

      (ii)  AT LEAST SEVEN CALENDAR DAYS PRIOR TO THE DATE OF THE  212          

SALE, FILES WITH THE CLERK OF THE COURT THAT RENDERED THE          213          

JUDGMENT GIVING RISE TO THE EXECUTION A COPY OF THE WRITTEN        214          

NOTICE DESCRIBED IN DIVISION (A)(1)(a)(i) OF THIS SECTION WITH     216          

PROOF OF SERVICE ENDORSED ON THE COPY IN THE FORM DESCRIBED IN     217          

DIVISION (D) OF CIVIL RULE 5.                                      220          

      (b)  SERVICE OF THE WRITTEN NOTICE DESCRIBED IN DIVISION     224          

(A)(1)(a)(i) OF THIS SECTION IS NOT REQUIRED TO BE MADE UPON ANY   225          

PARTY WHO IS IN DEFAULT FOR FAILURE TO APPEAR IN THE ACTION IN     227          

WHICH THE JUDGMENT GIVING RISE TO THE EXECUTION WAS RENDERED.      228          

                                                          5      

                                                                 
      (2)  THE officer taking them THE LANDS AND TENEMENTS gives   231          

public notice of the DATE, time, and place of THE sale, for at     234          

least thirty days before the day of sale, by advertisement in a                 

newspaper published in and of general circulation in the county.   236          

The court ordering THE sale may, DESIGNATE in the order of sale,   237          

designate the newspaper in which such THIS PUBLIC notice shall be  239          

published, AND THIS PUBLIC NOTICE IS SUBJECT TO DIVISION (A) OF    240          

SECTION 2329.27 OF THE REVISED CODE.                               242          

      (B)  A SALE OF LANDS AND TENEMENTS TAKEN IN EXECUTION MAY    245          

BE SET ASIDE IN ACCORDANCE WITH DIVISION (B) OF SECTION 2329.27    247          

OF THE REVISED CODE.                                               248          

      Sec. 2329.27.  (A)  When the advertisement provided for in   257          

PUBLIC NOTICE REQUIRED BY DIVISION (A)(2) OF section 2329.26 of    259          

the Revised Code, is made in a newspaper published weekly, it is   260          

sufficient to insert it for three consecutive weeks.  If there     261          

are both a daily and weekly edition of the paper selected, ARE     262          

PUBLISHED and the circulation of the daily in the county exceeds   264          

that of the weekly IN THE COUNTY, or if the lands and tenements    265          

taken in execution are situated in a city, and there are           266          

published both a daily and weekly edition of the paper selected    267          

ARE PUBLISHED, and the circulation of the daily in such THAT city  269          

exceeds that THE CIRCULATION of the weekly IN THAT CITY, it is     271          

sufficient to publish the advertisement PUBLIC NOTICE in the       272          

daily once a week for three consecutive weeks before the day of    273          

sale, each insertion to be on the same day of the week.  The       274          

expense of such THAT publication in a daily shall not exceed the   275          

cost of publishing it in a weekly.  All                            277          

      (B)(1)  SUBJECT TO DIVISIONS (B)(2) AND (3) OF THIS          279          

SECTION, ALL sales OF LANDS AND TENEMENTS TAKEN IN EXECUTION THAT  280          

ARE made without such advertisement COMPLIANCE WITH THE WRITTEN    282          

NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF SECTION 2329.26 OF    283          

THE REVISED CODE AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION    284          

(A)(2) OF THAT SECTION AND DIVISION (A) OF THIS SECTION shall be   285          

set aside, on motion, by the court to which the execution is       286          

                                                          6      

                                                                 
returnable.                                                                     

      (2)  PROOF OF SERVICE ENDORSED UPON A COPY OF THE WRITTEN    289          

NOTICE REQUIRED BY DIVISION (A)(1)(a) OF SECTION 2329.26 OF THE    292          

REVISED CODE SHALL BE CONCLUSIVE EVIDENCE OF THE SERVICE OF THE    294          

WRITTEN NOTICE IN COMPLIANCE WITH THE REQUIREMENTS OF THAT         295          

DIVISION, UNLESS A PARTY FILES A MOTION TO SET ASIDE THE SALE OF   296          

THE LANDS AND TENEMENTS PURSUANT TO DIVISION (B)(1) OF THIS        297          

SECTION AND ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT    298          

THE PROOF OF SERVICE IS FRAUDULENT.                                299          

      (3)  IF THE COURT TO WHICH THE EXECUTION IS RETURNABLE       301          

ENTERS ITS ORDER CONFIRMING THE SALE OF THE LANDS AND TENEMENTS,   302          

THE ORDER SHALL HAVE BOTH OF THE FOLLOWING EFFECTS:                303          

      (a)  THE ORDER SHALL BE DEEMED TO CONSTITUTE A JUDICIAL      306          

FINDING AS FOLLOWS:                                                             

      (i)  THAT THE SALE OF THE LANDS AND TENEMENTS COMPLIED WITH  309          

THE WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF SECTION   311          

2329.26 OF THE REVISED CODE AND THE PUBLIC NOTICE REQUIREMENTS OF  314          

DIVISION (A)(2) OF THAT SECTION AND DIVISION (A) OF THIS SECTION,  316          

OR THAT COMPLIANCE OF THAT NATURE DID NOT OCCUR BUT THE FAILURE    317          

TO GIVE A WRITTEN NOTICE TO A PARTY ENTITLED TO NOTICE UNDER       318          

DIVISION (A)(1)(a) OF SECTION 2329.26 OF THE REVISED CODE HAS NOT  322          

PREJUDICED THAT PARTY;                                             323          

      (ii)  THAT ALL PARTIES ENTITLED TO NOTICE UNDER DIVISION     327          

(A)(1)(a) OF SECTION 2329.26 OF THE REVISED CODE RECEIVED          330          

ADEQUATE NOTICE OF THE DATE, TIME, AND PLACE OF THE SALE OF THE    331          

LANDS AND TENEMENTS.                                               332          

      (b)  THE ORDER BARS THE FILING OF ANY FURTHER MOTIONS TO     335          

SET ASIDE THE SALE OF THE LANDS AND TENEMENTS.                     336          

      Section 2.  That existing sections 2329.13, 2329.14,         338          

2329.26, and 2329.27 of the Revised Code are hereby repealed.      339          

      Section 3.  In amending sections 2329.13, 2329.14, 2329.26,  341          

and 2329.27 of the Revised Code in this act to require that a      342          

written notice of the date, time, and place of an execution sale   344          

of real or personal property be given to certain parties to the    345          

                                                          7      

                                                                 
underlying action, it is the intent of the General Assembly to     346          

respond to the holdings of the Ohio Supreme Court in Central       347          

Trust Co., N.A. v. Jensen (1993), 67 Ohio St. 3d 140, the Court    348          

of Appeals of Clark County in In re Foreclosure of Liens for       350          

Delinquent Taxes (1992), 79 Ohio App. 3d 766, the Court of         351          

Appeals of Columbiana County in Perpetual Savings Bank v.          352          

Samuelson (1992), 1992 WL 380301, and the Court of Appeals of      354          

Hamilton County in Central Trust Co., N.A. v. Spencer (1987), 41   355          

Ohio App. 3d 237, that publication notice of an execution sale of  356          

property may not afford interested parties with actual notice      357          

that is reasonably calculated, under all the circumstances, to     358          

apprise them of the pendency of the sale and to afford them an     359          

opportunity to take appropriate action to protect their interests  361          

and that satisfies the due process of law requirements of the      362          

Fourteenth Amendment to the United States Constitution and of      363          

Section 16 of Article I of the Ohio Constitution.