As Reported by House Civil and Commercial Law 1
123rd General Assembly 4
Regular Session Sub. S. B. No. 30 5
1999-2000 6
SENATORS LATTA-DRAKE-McLIN-CUPP-MUMPER- WACHTMANN-REPRESENTATIVES 8
SALERNO-WILLAMOWSKI-BUCHY
_________________________________________________________________ 9
A B I L L
To amend sections 1923.06, 2329.13, 2329.14, 11
2329.26, and 2329.27 of the Revised Code to 13
change the procedure by which service is effected
in an eviction action, to require that a 14
specified written notice be given to certain
parties to the underlying action prior to an 15
execution sale of real or personal property, and
to specify consequences of an execution sale that 16
occurs after that notice and public notice by 17
newspaper publication has been given.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 19
Section 1. That sections 1923.06, 2329.13, 2329.14, 21
2329.26, and 2329.27 of the Revised Code be amended to read as 23
follows:
Sec. 1923.06. (A) Any summons in an action, INCLUDING A 32
CLAIM FOR POSSESSION, pursuant to this chapter shall be issued, 35
be in the form specified, and be served and returned as provided 36
in this section. Such service shall be at least ten SEVEN days 37
before the day set for trial. 38
(B) Every summons issued under this section to recover 40
residential premises shall contain the following language printed 41
in a conspicuous manner: "A complaint to evict you has been 42
filed with this court. No person shall be evicted unless the 43
person's right to possession has ended and no person shall be 45
evicted in retaliation for the exercise of the person's lawful 46
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rights. If you are depositing rent with the clerk of this court 47
you shall continue to deposit such rent until the time of the 48
court hearing. The failure to continue to deposit such rent may 49
result in your eviction. You may request a trial by jury. You 50
have the right to seek legal assistance. If you cannot afford a 51
lawyer, you may contact your local legal aid or legal service 52
office. If none is available, you may contact your local bar 53
association."
(C) The clerk of the court in which a complaint to evict 55
is filed shall mail any summons by ordinary mail, along with a 57
copy of the complaint, document, or other process to be served, 58
to the defendant at the address set forth in the caption of the 59
summons and to any address set forth in any written instructions 60
furnished to the clerk. The mailing shall be evidenced by a 61
certificate of mailing which the clerk shall complete and file. 62
IN ADDITION TO THIS ORDINARY MAIL SERVICE, THE CLERK ALSO 64
SHALL CAUSE SERVICE OF THAT PROCESS TO BE COMPLETED UNDER 65
DIVISION (D) OR (E) OF THIS SECTION OR BOTH, DEPENDING UPON WHICH 66
OF THOSE TWO METHODS OF SERVICE IS REQUESTED BY THE PLAINTIFF 68
UPON FILING THE COMPLAINT TO EVICT.
(D) The (1) IF REQUESTED, THE clerk shall deliver 71
sufficient copies of the summons, complaint, document, or other 72
process to be served to, and service shall be made by, one of the 73
following persons:
(1)(a) The sheriff of the county in which the premises are 75
located when the process issues from a court of common pleas or 76
county court; 77
(2)(b) The bailiff of the court for service when process 79
issues from the A municipal court; 80
(3)(c) Any person who is eighteen years of age or older, 82
who is not a party, and who has been designated by order of the 83
court to make service of process when process issues from any of 85
the courts REFERRED TO in divisions (D)(1)(a) and (2)(b) of this 86
section.
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(E)(2) The person serving process shall effect service at 89
the premises that are the subject of the forcible entry and 90
detainer action by one of the following means: 91
(1)(a) By locating the person to be served at the premises 93
to tender a copy of the process and accompanying documents to 94
that person; 95
(2)(b) By leaving a copy of the summons, complaint, 97
document, or the OTHER process with a person of suitable age and 98
discretion found at the premises if the person to be served 99
cannot be found at the time the person making service attempts to 101
serve the summons pursuant to division (E)(1)(D)(2)(a) of this 102
section;
(3)(c) By posting a copy in a conspicuous place on the 104
subject premises if service cannot be made pursuant to divisions 105
(E)(1)(D)(2)(a) and (2)(b) of this section. 106
(F)(3) Within ten FIVE days after receiving the summons, 109
complaint, document, or other process from the clerk for service, 111
the person making service shall return the process to the clerk. 112
The person shall indicate on the process which method described 113
in division (E)(D)(2) of this section was used to serve the 115
summons. The clerk shall make the appropriate entry on the 116
appearance docket.
(G)(E) IF REQUESTED, THE CLERK SHALL MAIL BY CERTIFIED 118
MAIL, RETURN RECEIPT REQUESTED, A COPY OF THE SUMMONS, COMPLAINT, 119
DOCUMENT, OR OTHER PROCESS TO BE SERVED TO THE ADDRESS SET FORTH 120
IN THE CAPTION OF THE SUMMONS AND TO ANY ADDRESS SET FORTH IN ANY 121
WRITTEN INSTRUCTIONS FURNISHED TO THE CLERK. 122
(F) Service of process shall be deemed complete on the 124
date that either ANY of the following has occurred: 125
(1) Service is made pursuant to division (E)(1)(D)(2)(a) 128
or (2)(b) of this section.
(2) Both ordinary mail service under division (C) and 130
service by posting pursuant to division (E)(3)(D)(2)(c) of this 132
section have been made. 133
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(H)(1)(3) FOR SERVICE PERFORMED PURSUANT TO DIVISION (E) 136
OF THIS SECTION, ON THE DATE OF MAILING, IF ON THE DATE OF THE
HEARING EITHER OF THE FOLLOWING APPLIES: 137
(a) THE CERTIFIED MAIL HAS NOT RETURNED FOR ANY REASON 139
OTHER THAN REFUSED OR UNCLAIMED. 140
(b) THE CERTIFIED MAIL HAS NOT BEEN ENDORSED, AND THE 142
ORDINARY MAIL HAS NOT BEEN RETURNED. 143
(G)(1) The claim for restitution of the premises shall be 146
scheduled for hearing in accordance with local court rules, but 147
in no event sooner than the tenth SEVENTH day from the date
service is complete. 149
(2) Answer day for any other claims FILED WITH THE CLAIM 151
FOR POSSESSION shall be twenty-eight days from the date service 153
is DEEMED complete UNDER THIS SECTION. 154
Sec. 2329.13. The (A) GOODS AND CHATTELS LEVIED UPON BY 164
VIRTUE OF AN EXECUTION OF A COURT OF RECORD SHALL NOT BE SOLD
UNTIL BOTH OF THE FOLLOWING OCCUR: 165
(1)(a) EXCEPT AS OTHERWISE PROVIDED IN DIVISION (A)(1)(b) 169
OF THIS SECTION, THE JUDGMENT CREDITOR WHO SEEKS THE SALE OF THE 170
GOODS AND CHATTELS OR THE JUDGMENT CREDITOR'S ATTORNEY DOES BOTH 171
OF THE FOLLOWING: 172
(i) CAUSES A WRITTEN NOTICE OF THE DATE, TIME, AND PLACE 175
OF THE SALE TO BE SERVED IN ACCORDANCE WITH DIVISIONS (A) AND (B) 176
OF CIVIL RULE 5 UPON THE JUDGMENT DEBTOR AND UPON EACH OTHER 178
PARTY TO THE ACTION IN WHICH THE JUDGMENT GIVING RISE TO THE 179
EXECUTION WAS RENDERED;
(ii) AT LEAST THREE CALENDAR DAYS PRIOR TO THE DATE OF THE 182
SALE, FILES WITH THE CLERK OF THE COURT THAT RENDERED THE 183
JUDGMENT GIVING RISE TO THE EXECUTION A COPY OF THE WRITTEN 184
NOTICE DESCRIBED IN DIVISION (A)(1)(a)(i) OF THIS SECTION WITH 186
PROOF OF SERVICE ENDORSED ON THE COPY IN THE FORM DESCRIBED IN 187
DIVISION (D) OF CIVIL RULE 5. 190
(b) SERVICE OF THE WRITTEN NOTICE DESCRIBED IN DIVISION 194
(A)(1)(a)(i) OF THIS SECTION IS NOT REQUIRED TO BE MADE UPON ANY 195
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PARTY WHO IS IN DEFAULT FOR FAILURE TO APPEAR IN THE ACTION IN 196
WHICH THE JUDGMENT GIVING RISE TO THE EXECUTION WAS RENDERED. 197
(2)(a) SUBJECT TO DIVISION (A)(2)(b) OF THIS SECTION, THE 201
officer who levies upon THE goods and chattels by virtue of an 203
execution by a court of record, before he proceeds to sell them 204
shall give GIVES public notice of the DATE, time, and place of 206
THE sale, for at least ten days before the day of sale. Such 208
notice shall be given by advertisement published in a newspaper 209
published in and of general circulation in the county. The court 210
ordering such THE sale may, DESIGNATE in the order of sale, 211
designate the newspaper in which such THIS PUBLIC notice shall be 212
published. 213
Where (b) IF the goods to be sold are merchandise or 215
inventory used in connection with a trade or business, and such 217
IF THE sale is to satisfy a judgment in favor of the state, or 219
one of its political subdivisions, for delinquent taxes, PUBLIC 220
notice OF THE SALE shall be given by published advertisement in a 222
newspaper PUBLISHED IN AND of general circulation IN THE COUNTY 224
once a week for three weeks preceding the date of the sale. In 225
the case of a sale of goods used in CONNECTION WITH a trade or 226
business, notice of the location, date, and nature of such THAT 228
sale ALSO shall be conspicuously posted on the premises where the 230
trade or business is carried on, and on the premises where the 231
goods to be sold are kept if such goods THEY are located 232
elsewhere.
(B)(1) A SALE OF GOODS AND CHATTELS LEVIED UPON BY VIRTUE 235
OF AN EXECUTION OF A COURT OF RECORD MAY BE SET ASIDE IN 236
ACCORDANCE WITH DIVISION (B)(2) OF THIS SECTION. 237
(2) SUBJECT TO DIVISIONS (B)(3) AND (4) OF THIS SECTION, 240
ALL SALES OF GOODS AND CHATTELS LEVIED UPON BY VIRTUE OF AN 241
EXECUTION OF A COURT OF RECORD THAT ARE MADE WITHOUT COMPLIANCE 243
WITH THE WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF 246
THIS SECTION AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION 247
(A)(2) OF THIS SECTION SHALL BE SET ASIDE, ON MOTION, BY THE 248
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COURT TO WHICH THE EXECUTION IS RETURNABLE. 249
(3) PROOF OF SERVICE ENDORSED UPON A COPY OF THE WRITTEN 251
NOTICE REQUIRED BY DIVISION (A)(1)(a) OF THIS SECTION SHALL BE 254
CONCLUSIVE EVIDENCE OF THE SERVICE OF THE WRITTEN NOTICE IN 255
COMPLIANCE WITH THE REQUIREMENTS OF THAT DIVISION, UNLESS, PRIOR 256
TO THE CONFIRMATION OF THE SALE OF THE GOODS AND CHATTELS AS 257
DESCRIBED IN DIVISION (B)(4) OF THIS SECTION, A PARTY FILES A 259
MOTION TO SET ASIDE THE SALE PURSUANT TO DIVISION (B)(1) OF THIS 260
SECTION AND ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT 261
THE PROOF OF SERVICE IS FRAUDULENT. 262
(4) IF THE COURT TO WHICH THE EXECUTION IS RETURNABLE 264
ENTERS ITS ORDER CONFIRMING THE SALE OF THE GOODS AND CHATTELS, 265
THE ORDER HAS BOTH OF THE FOLLOWING EFFECTS: 266
(a) THE ORDER SHALL BE DEEMED TO CONSTITUTE A JUDICIAL 269
FINDING AS FOLLOWS:
(i) THAT THE SALE OF THE GOODS AND CHATTELS COMPLIED WITH 272
THE WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF THIS 275
SECTION AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION (A)(2) OF 276
THIS SECTION, OR THAT COMPLIANCE OF THAT NATURE DID NOT OCCUR BUT 277
THE FAILURE TO GIVE A WRITTEN NOTICE TO A PARTY ENTITLED TO 278
NOTICE UNDER DIVISION (A)(1)(a) OF THIS SECTION HAS NOT 280
PREJUDICED THAT PARTY;
(ii) THAT ALL PARTIES ENTITLED TO NOTICE UNDER DIVISION 284
(A)(1)(a) OF THIS SECTION RECEIVED ADEQUATE NOTICE OF THE DATE, 285
TIME, AND PLACE OF THE SALE OF THE GOODS AND CHATTELS. 286
(b) THE ORDER BARS THE FILING OF ANY FURTHER MOTIONS TO 289
SET ASIDE THE SALE OF THE GOODS AND CHATTELS. 290
Sec. 2329.14. When goods and chattels levied upon by 299
execution cannot be sold for want of bidders, or FOR want of 300
time, the officer who makes the return shall annex to the 302
execution a true inventory of the goods and chattels remaining
unsold. The plaintiff in such THAT execution thereupon may have 304
another execution issued directing the sale of the property GOODS 305
AND CHATTELS levied upon; but it. THE GOODS AND CHATTELS shall 307
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not be SO sold unless the time and place of sale is advertised as 308
directed in WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF 310
SECTION 2329.13 OF THE REVISED CODE AND THE PUBLIC NOTICE 311
REQUIREMENTS OF DIVISION (A)(2) OF THAT section 2329.13 of the 312
Revised Code FIRST HAVE BEEN SATISFIED. DIVISION (B) OF THAT 313
SECTION ALSO APPLIES TO ANY SALE OF GOODS AND CHATTELS LEVIED 314
UPON BY VIRTUE OF A SUBSEQUENT EXECUTION OF A COURT OF RECORD 315
UNDER THIS SECTION. 316
Sec. 2329.26. (A) Lands and tenements taken in execution 325
shall not be sold until the BOTH OF THE FOLLOWING OCCUR: 326
(1)(a) EXCEPT AS OTHERWISE PROVIDED IN DIVISION (A)(1)(b) 330
OF THIS SECTION, THE JUDGMENT CREDITOR WHO SEEKS THE SALE OF THE 331
LANDS AND TENEMENTS OR THE JUDGMENT CREDITOR'S ATTORNEY DOES BOTH 333
OF THE FOLLOWING:
(i) CAUSES A WRITTEN NOTICE OF THE DATE, TIME, AND PLACE 336
OF THE SALE TO BE SERVED IN ACCORDANCE WITH DIVISIONS (A) AND (B) 338
OF CIVIL RULE 5 UPON THE JUDGMENT DEBTOR AND UPON EACH OTHER 341
PARTY TO THE ACTION IN WHICH THE JUDGMENT GIVING RISE TO THE 342
EXECUTION WAS RENDERED;
(ii) AT LEAST SEVEN CALENDAR DAYS PRIOR TO THE DATE OF THE 345
SALE, FILES WITH THE CLERK OF THE COURT THAT RENDERED THE 346
JUDGMENT GIVING RISE TO THE EXECUTION A COPY OF THE WRITTEN 347
NOTICE DESCRIBED IN DIVISION (A)(1)(a)(i) OF THIS SECTION WITH 349
PROOF OF SERVICE ENDORSED ON THE COPY IN THE FORM DESCRIBED IN 350
DIVISION (D) OF CIVIL RULE 5. 353
(b) SERVICE OF THE WRITTEN NOTICE DESCRIBED IN DIVISION 357
(A)(1)(a)(i) OF THIS SECTION IS NOT REQUIRED TO BE MADE UPON ANY 358
PARTY WHO IS IN DEFAULT FOR FAILURE TO APPEAR IN THE ACTION IN 360
WHICH THE JUDGMENT GIVING RISE TO THE EXECUTION WAS RENDERED. 361
(2) THE officer taking them THE LANDS AND TENEMENTS gives 364
public notice of the DATE, time, and place of THE sale, for at 367
least thirty days before the day of sale, by advertisement in a
newspaper published in and of general circulation in the county. 369
The court ordering THE sale may, DESIGNATE in the order of sale, 370
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designate the newspaper in which such THIS PUBLIC notice shall be 372
published, AND THIS PUBLIC NOTICE IS SUBJECT TO DIVISION (A) OF 373
SECTION 2329.27 OF THE REVISED CODE. 375
(B) A SALE OF LANDS AND TENEMENTS TAKEN IN EXECUTION MAY 378
BE SET ASIDE IN ACCORDANCE WITH DIVISION (B) OF SECTION 2329.27 380
OF THE REVISED CODE. 381
Sec. 2329.27. (A) When the advertisement provided for in 390
PUBLIC NOTICE REQUIRED BY DIVISION (A)(2) OF section 2329.26 of 392
the Revised Code, is made in a newspaper published weekly, it is 393
sufficient to insert it for three consecutive weeks. If there 394
are both a daily and weekly edition of the paper selected, ARE 395
PUBLISHED and the circulation of the daily in the county exceeds 397
that of the weekly IN THE COUNTY, or if the lands and tenements 398
taken in execution are situated in a city, and there are 399
published both a daily and weekly edition of the paper selected 400
ARE PUBLISHED, and the circulation of the daily in such THAT city 402
exceeds that THE CIRCULATION of the weekly IN THAT CITY, it is 404
sufficient to publish the advertisement PUBLIC NOTICE in the 405
daily once a week for three consecutive weeks before the day of 406
sale, each insertion to be on the same day of the week. The 407
expense of such THAT publication in a daily shall not exceed the 408
cost of publishing it in a weekly. All 410
(B)(1) SUBJECT TO DIVISIONS (B)(2) AND (3) OF THIS 412
SECTION, ALL sales OF LANDS AND TENEMENTS TAKEN IN EXECUTION THAT 413
ARE made without such advertisement COMPLIANCE WITH THE WRITTEN 415
NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF SECTION 2329.26 OF 416
THE REVISED CODE AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION 417
(A)(2) OF THAT SECTION AND DIVISION (A) OF THIS SECTION shall be 418
set aside, on motion, by the court to which the execution is 419
returnable.
(2) PROOF OF SERVICE ENDORSED UPON A COPY OF THE WRITTEN 422
NOTICE REQUIRED BY DIVISION (A)(1)(a) OF SECTION 2329.26 OF THE 425
REVISED CODE SHALL BE CONCLUSIVE EVIDENCE OF THE SERVICE OF THE 427
WRITTEN NOTICE IN COMPLIANCE WITH THE REQUIREMENTS OF THAT 428
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DIVISION, UNLESS A PARTY FILES A MOTION TO SET ASIDE THE SALE OF 429
THE LANDS AND TENEMENTS PURSUANT TO DIVISION (B)(1) OF THIS 430
SECTION AND ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT 431
THE PROOF OF SERVICE IS FRAUDULENT. 432
(3) IF THE COURT TO WHICH THE EXECUTION IS RETURNABLE 434
ENTERS ITS ORDER CONFIRMING THE SALE OF THE LANDS AND TENEMENTS, 435
THE ORDER SHALL HAVE BOTH OF THE FOLLOWING EFFECTS: 436
(a) THE ORDER SHALL BE DEEMED TO CONSTITUTE A JUDICIAL 439
FINDING AS FOLLOWS:
(i) THAT THE SALE OF THE LANDS AND TENEMENTS COMPLIED WITH 442
THE WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF SECTION 444
2329.26 OF THE REVISED CODE AND THE PUBLIC NOTICE REQUIREMENTS OF 447
DIVISION (A)(2) OF THAT SECTION AND DIVISION (A) OF THIS SECTION, 449
OR THAT COMPLIANCE OF THAT NATURE DID NOT OCCUR BUT THE FAILURE 450
TO GIVE A WRITTEN NOTICE TO A PARTY ENTITLED TO NOTICE UNDER 451
DIVISION (A)(1)(a) OF SECTION 2329.26 OF THE REVISED CODE HAS NOT 455
PREJUDICED THAT PARTY; 456
(ii) THAT ALL PARTIES ENTITLED TO NOTICE UNDER DIVISION 460
(A)(1)(a) OF SECTION 2329.26 OF THE REVISED CODE RECEIVED 463
ADEQUATE NOTICE OF THE DATE, TIME, AND PLACE OF THE SALE OF THE 464
LANDS AND TENEMENTS. 465
(b) THE ORDER BARS THE FILING OF ANY FURTHER MOTIONS TO 468
SET ASIDE THE SALE OF THE LANDS AND TENEMENTS. 469
Section 2. That existing sections 1923.06, 2329.13, 471
2329.14, 2329.26, and 2329.27 of the Revised Code are hereby 472
repealed.
Section 3. In amending sections 2329.13, 2329.14, 2329.26, 474
and 2329.27 of the Revised Code in this act to require that a 475
written notice of the date, time, and place of an execution sale 477
of real or personal property be given to certain parties to the 478
underlying action, it is the intent of the General Assembly to 479
respond to the holdings of the Ohio Supreme Court in Central 480
Trust Co., N.A. v. Jensen (1993), 67 Ohio St. 3d 140, the Court 481
of Appeals of Clark County in In re Foreclosure of Liens for 483
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Delinquent Taxes (1992), 79 Ohio App. 3d 766, the Court of 484
Appeals of Columbiana County in Perpetual Savings Bank v. 485
Samuelson (1992), 1992 WL 380301, and the Court of Appeals of 487
Hamilton County in Central Trust Co., N.A. v. Spencer (1987), 41 488
Ohio App. 3d 237, that publication notice of an execution sale of 489
property may not afford interested parties with actual notice 490
that is reasonably calculated, under all the circumstances, to 491
apprise them of the pendency of the sale and to afford them an 492
opportunity to take appropriate action to protect their interests 494
and that satisfies the due process of law requirements of the 495
Fourteenth Amendment to the United States Constitution and of 496
Section 16 of Article I of the Ohio Constitution.