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
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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
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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
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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
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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
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(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
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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
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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.