As Passed by the House                        1            

123rd General Assembly                                             4            

   Regular Session                          Am. Sub. S. B. No. 30  5            

      1999-2000                                                    6            


SENATORS LATTA-DRAKE-McLIN-CUPP-MUMPER- WACHTMANN-REPRESENTATIVES  8            

        SALERNO-WILLAMOWSKI-BUCHY- HAINES-TIBERI-MOTTLEY           9            


_________________________________________________________________   10           

                          A   B I L L                                           

             To amend sections 1923.06, 2329.13, 2329.14,          12           

                2329.26, and 2329.27 of the Revised Code to        14           

                change the procedure by which service is effected               

                in an eviction action, to require that a           15           

                specified written notice be given to certain                    

                parties to the underlying action prior to an       16           

                execution sale of real or personal property, and                

                to specify consequences of an execution sale that  17           

                occurs after that notice and public notice by      18           

                newspaper publication has been given.                           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        20           

      Section 1.  That sections 1923.06, 2329.13, 2329.14,         22           

2329.26, and 2329.27 of the Revised Code be amended to read as     24           

follows:                                                                        

      Sec. 1923.06.  (A)  Any summons in an action, INCLUDING A    33           

CLAIM FOR POSSESSION, pursuant to this chapter shall be issued,    36           

be in the form specified, and be served and returned as provided   37           

in this section.  Such service shall be at least ten SEVEN days    38           

before the day set for trial.                                      39           

      (B)  Every summons issued under this section to recover      41           

residential premises shall contain the following language printed  42           

in a conspicuous manner:  "A complaint to evict you has been       43           

filed with this court.  No person shall be evicted unless the      44           

person's right to possession has ended and no person shall be      46           

evicted in retaliation for the exercise of the person's lawful     47           

                                                          2      


                                                                 
rights.  If you are depositing rent with the clerk of this court   48           

you shall continue to deposit such rent until the time of the      49           

court hearing.  The failure to continue to deposit such rent may   50           

result in your eviction.  You may request a trial by jury.  You    51           

have the right to seek legal assistance.  If you cannot afford a   52           

lawyer, you may contact your local legal aid or legal service      53           

office.  If none is available, you may contact your local bar      54           

association."                                                                   

      (C)  The clerk of the court in which a complaint to evict    56           

is filed shall mail any summons by ordinary mail, along with a     58           

copy of the complaint, document, or other process to be served,    59           

to the defendant at the address set forth in the caption of the    60           

summons and to any address set forth in any written instructions   61           

furnished to the clerk.  The mailing shall be evidenced by a       62           

certificate of mailing which the clerk shall complete and file.    63           

      IN ADDITION TO THIS ORDINARY MAIL SERVICE, THE CLERK ALSO    65           

SHALL CAUSE SERVICE OF THAT PROCESS TO BE COMPLETED UNDER          66           

DIVISION (D) OR (E) OF THIS SECTION OR BOTH, DEPENDING UPON WHICH  67           

OF THOSE TWO METHODS OF SERVICE IS REQUESTED BY THE PLAINTIFF      69           

UPON FILING THE COMPLAINT TO EVICT.                                             

      (D)  The (1)  IF REQUESTED, THE clerk shall deliver          72           

sufficient copies of the summons, complaint, document, or other    73           

process to be served to, and service shall be made by, one of the  74           

following persons:                                                              

      (1)(a)  The sheriff of the county in which the premises are  76           

located when the process issues from a court of common pleas or    77           

county court;                                                      78           

      (2)(b)  The bailiff of the court for service when process    80           

issues from the A municipal court;                                 81           

      (3)(c)  Any person who is eighteen years of age or older,    83           

who is not a party, and who has been designated by order of the    84           

court to make service of process when process issues from any of   86           

the courts REFERRED TO in divisions (D)(1)(a) and (2)(b) of this   87           

section.                                                                        

                                                          3      


                                                                 
      (E)(2)  The person serving process shall effect service at   90           

the premises that are the subject of the forcible entry and        91           

detainer action by one of the following means:                     92           

      (1)(a)  By locating the person to be served at the premises  94           

to tender a copy of the process and accompanying documents to      95           

that person;                                                       96           

      (2)(b)  By leaving a copy of the summons, complaint,         98           

document, or the OTHER process with a person of suitable age and   99           

discretion found at the premises if the person to be served        100          

cannot be found at the time the person making service attempts to  102          

serve the summons pursuant to division (E)(1)(D)(2)(a) of this     103          

section;                                                                        

      (3)(c)  By posting a copy in a conspicuous place on the      105          

subject premises if service cannot be made pursuant to divisions   106          

(E)(1)(D)(2)(a) and (2)(b) of this section.                        107          

      (F)(3)  Within ten FIVE days after receiving the summons,    110          

complaint, document, or other process from the clerk for service,  112          

the person making service shall return the process to the clerk.   113          

The person shall indicate on the process which method described    114          

in division (E)(D)(2) of this section was used to serve the        116          

summons.  The clerk shall make the appropriate entry on the        117          

appearance docket.                                                              

      (G)(E)  IF REQUESTED, THE CLERK SHALL MAIL BY CERTIFIED      119          

MAIL, RETURN RECEIPT REQUESTED, A COPY OF THE SUMMONS, COMPLAINT,  120          

DOCUMENT, OR OTHER PROCESS TO BE SERVED TO THE ADDRESS SET FORTH   121          

IN THE CAPTION OF THE SUMMONS AND TO ANY ADDRESS SET FORTH IN ANY  122          

WRITTEN INSTRUCTIONS FURNISHED TO THE CLERK.                       123          

      (F)  Service of process shall be deemed complete on the      125          

date that either ANY of the following has occurred:                126          

      (1)  Service is made pursuant to division (E)(1)(D)(2)(a)    129          

or (2)(b) of this section.                                                      

      (2)  Both ordinary mail service under division (C) and       131          

service by posting pursuant to division (E)(3)(D)(2)(c) of this    133          

section have been made.                                            134          

                                                          4      


                                                                 
      (H)(1)(3)  FOR SERVICE PERFORMED PURSUANT TO DIVISION (E)    137          

OF THIS SECTION, ON THE DATE OF MAILING, IF ON THE DATE OF THE                  

HEARING EITHER OF THE FOLLOWING APPLIES:                           138          

      (a)  THE CERTIFIED MAIL HAS NOT BEEN RETURNED FOR ANY        140          

REASON OTHER THAN REFUSED OR UNCLAIMED.                            142          

      (b)  THE CERTIFIED MAIL HAS NOT BEEN ENDORSED, AND THE       144          

ORDINARY MAIL HAS NOT BEEN RETURNED.                               145          

      (G)(1)  The claim for restitution of the premises shall be   148          

scheduled for hearing in accordance with local court rules, but    149          

in no event sooner than the tenth SEVENTH day from the date                     

service is complete.                                               151          

      (2)  Answer day for any other claims FILED WITH THE CLAIM    153          

FOR POSSESSION shall be twenty-eight days from the date service    155          

is DEEMED complete UNDER THIS SECTION.                             156          

      Sec. 2329.13.  The (A)  GOODS AND CHATTELS LEVIED UPON BY    166          

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

UNTIL BOTH OF THE FOLLOWING OCCUR:                                 167          

      (1)(a)  EXCEPT AS OTHERWISE PROVIDED IN DIVISION (A)(1)(b)   171          

OF THIS SECTION, THE JUDGMENT CREDITOR WHO SEEKS THE SALE OF THE   172          

GOODS AND CHATTELS OR THE JUDGMENT CREDITOR'S ATTORNEY DOES BOTH   173          

OF THE FOLLOWING:                                                  174          

      (i)  CAUSES A WRITTEN NOTICE OF THE DATE, TIME, AND PLACE    177          

OF THE SALE TO BE SERVED IN ACCORDANCE WITH DIVISIONS (A) AND (B)  178          

OF CIVIL RULE 5 UPON THE JUDGMENT DEBTOR AND UPON EACH OTHER       180          

PARTY TO THE ACTION IN WHICH THE JUDGMENT GIVING RISE TO THE       181          

EXECUTION WAS RENDERED;                                                         

      (ii)  AT LEAST THREE CALENDAR DAYS PRIOR TO THE DATE OF THE  184          

SALE, FILES WITH THE CLERK OF THE COURT THAT RENDERED THE          185          

JUDGMENT GIVING RISE TO THE EXECUTION A COPY OF THE WRITTEN        186          

NOTICE DESCRIBED IN DIVISION (A)(1)(a)(i) OF THIS SECTION WITH     188          

PROOF OF SERVICE ENDORSED ON THE COPY IN THE FORM DESCRIBED IN     189          

DIVISION (D) OF CIVIL RULE 5.                                      192          

      (b)  SERVICE OF THE WRITTEN NOTICE DESCRIBED IN DIVISION     196          

(A)(1)(a)(i) OF THIS SECTION IS NOT REQUIRED TO BE MADE UPON ANY   197          

                                                          5      


                                                                 
PARTY WHO IS IN DEFAULT FOR FAILURE TO APPEAR IN THE ACTION IN     198          

WHICH THE JUDGMENT GIVING RISE TO THE EXECUTION WAS RENDERED.      199          

      (2)(a)  SUBJECT TO DIVISION (A)(2)(b) OF THIS SECTION, THE   203          

officer who levies upon THE goods and chattels by virtue of an     205          

execution by a court of record, before he proceeds to sell them    206          

shall give GIVES public notice of the DATE, time, and place of     208          

THE sale, for at least ten days before the day of sale. Such       210          

notice shall be given by advertisement published in a newspaper    211          

published in and of general circulation in the county.  The court  212          

ordering such THE sale may, DESIGNATE in the order of sale,        213          

designate the newspaper in which such THIS PUBLIC notice shall be  214          

published.                                                         215          

      Where (b)  IF the goods to be sold are merchandise or        217          

inventory used in connection with a trade or business, and such    219          

IF THE sale is to satisfy a judgment in favor of the state, or     221          

one of its political subdivisions, for delinquent taxes, PUBLIC    222          

notice OF THE SALE shall be given by published advertisement in a  224          

newspaper PUBLISHED IN AND of general circulation IN THE COUNTY    226          

once a week for three weeks preceding the date of the sale.  In    227          

the case of a sale of goods used in CONNECTION WITH a trade or     228          

business, notice of the location, date, and nature of such THAT    230          

sale ALSO shall be conspicuously posted on the premises where the  232          

trade or business is carried on, and on the premises where the     233          

goods to be sold are kept if such goods THEY are located           234          

elsewhere.                                                                      

      (B)(1)  A SALE OF GOODS AND CHATTELS LEVIED UPON BY VIRTUE   237          

OF AN EXECUTION OF A COURT OF RECORD MAY BE SET ASIDE IN           238          

ACCORDANCE WITH DIVISION (B)(2) OF THIS SECTION.                   239          

      (2)  SUBJECT TO DIVISIONS (B)(3) AND (4) OF THIS SECTION,    242          

ALL SALES OF GOODS AND CHATTELS LEVIED UPON BY VIRTUE OF AN        243          

EXECUTION OF A COURT OF RECORD THAT ARE MADE WITHOUT COMPLIANCE    245          

WITH THE WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF      248          

THIS SECTION AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION        249          

(A)(2) OF THIS SECTION SHALL BE SET ASIDE, ON MOTION, BY THE       250          

                                                          6      


                                                                 
COURT TO WHICH THE EXECUTION IS RETURNABLE.                        251          

      (3)  PROOF OF SERVICE ENDORSED UPON A COPY OF THE WRITTEN    253          

NOTICE REQUIRED BY DIVISION (A)(1)(a) OF THIS SECTION SHALL BE     256          

CONCLUSIVE EVIDENCE OF THE SERVICE OF THE WRITTEN NOTICE IN        257          

COMPLIANCE WITH THE REQUIREMENTS OF THAT DIVISION, UNLESS, PRIOR   258          

TO THE CONFIRMATION OF THE SALE OF THE GOODS AND CHATTELS AS       259          

DESCRIBED IN DIVISION (B)(4) OF THIS SECTION, A PARTY FILES A      261          

MOTION TO SET ASIDE THE SALE PURSUANT TO DIVISION (B)(1) OF THIS   262          

SECTION AND ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT    263          

THE PROOF OF SERVICE IS FRAUDULENT.                                264          

      (4)  IF THE COURT TO WHICH THE EXECUTION IS RETURNABLE       266          

ENTERS ITS ORDER CONFIRMING THE SALE OF THE GOODS AND CHATTELS,    267          

THE ORDER HAS BOTH OF THE FOLLOWING EFFECTS:                       268          

      (a)  THE ORDER SHALL BE DEEMED TO CONSTITUTE A JUDICIAL      271          

FINDING AS FOLLOWS:                                                             

      (i)  THAT THE SALE OF THE GOODS AND CHATTELS COMPLIED WITH   274          

THE WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF THIS      277          

SECTION AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION (A)(2) OF   278          

THIS SECTION, OR THAT COMPLIANCE OF THAT NATURE DID NOT OCCUR BUT  279          

THE FAILURE TO GIVE A WRITTEN NOTICE TO A PARTY ENTITLED TO        280          

NOTICE UNDER DIVISION (A)(1)(a) OF THIS SECTION HAS NOT            282          

PREJUDICED THAT PARTY;                                                          

      (ii)  THAT ALL PARTIES ENTITLED TO NOTICE UNDER DIVISION     286          

(A)(1)(a) OF THIS SECTION RECEIVED ADEQUATE NOTICE OF THE DATE,    287          

TIME, AND PLACE OF THE SALE OF THE GOODS AND CHATTELS.             288          

      (b)  THE ORDER BARS THE FILING OF ANY FURTHER MOTIONS TO     291          

SET ASIDE THE SALE OF THE GOODS AND CHATTELS.                      292          

      Sec. 2329.14.  When goods and chattels levied upon by        301          

execution cannot be sold for want of bidders, or FOR want of       302          

time, the officer who makes the return shall annex to the          304          

execution a true inventory of the goods and chattels remaining                  

unsold.  The plaintiff in such THAT execution thereupon may have   306          

another execution issued directing the sale of the property GOODS  307          

AND CHATTELS levied upon; but it.  THE GOODS AND CHATTELS shall    309          

                                                          7      


                                                                 
not be SO sold unless the time and place of sale is advertised as  310          

directed in WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF   312          

SECTION 2329.13 OF THE REVISED CODE AND THE PUBLIC NOTICE          313          

REQUIREMENTS OF DIVISION (A)(2) OF THAT section 2329.13 of the     314          

Revised Code FIRST HAVE BEEN SATISFIED.  DIVISION (B) OF THAT      315          

SECTION ALSO APPLIES TO ANY SALE OF GOODS AND CHATTELS LEVIED      316          

UPON BY VIRTUE OF A SUBSEQUENT EXECUTION OF A COURT OF RECORD      317          

UNDER THIS SECTION.                                                318          

      Sec. 2329.26.  (A)  Lands and tenements taken in execution   327          

shall not be sold until the BOTH OF THE FOLLOWING OCCUR:           328          

      (1)(a)  EXCEPT AS OTHERWISE PROVIDED IN DIVISION (A)(1)(b)   332          

OF THIS SECTION, THE JUDGMENT CREDITOR WHO SEEKS THE SALE OF THE   333          

LANDS AND TENEMENTS OR THE JUDGMENT CREDITOR'S ATTORNEY DOES BOTH  335          

OF THE FOLLOWING:                                                               

      (i)  CAUSES A WRITTEN NOTICE OF THE DATE, TIME, AND PLACE    338          

OF THE SALE TO BE SERVED IN ACCORDANCE WITH DIVISIONS (A) AND (B)  340          

OF CIVIL RULE 5 UPON THE JUDGMENT DEBTOR AND UPON EACH OTHER       343          

PARTY TO THE ACTION IN WHICH THE JUDGMENT GIVING RISE TO THE       344          

EXECUTION WAS RENDERED;                                                         

      (ii)  AT LEAST SEVEN CALENDAR DAYS PRIOR TO THE DATE OF THE  347          

SALE, FILES WITH THE CLERK OF THE COURT THAT RENDERED THE          348          

JUDGMENT GIVING RISE TO THE EXECUTION A COPY OF THE WRITTEN        349          

NOTICE DESCRIBED IN DIVISION (A)(1)(a)(i) OF THIS SECTION WITH     351          

PROOF OF SERVICE ENDORSED ON THE COPY IN THE FORM DESCRIBED IN     352          

DIVISION (D) OF CIVIL RULE 5.                                      355          

      (b)  SERVICE OF THE WRITTEN NOTICE DESCRIBED IN DIVISION     359          

(A)(1)(a)(i) OF THIS SECTION IS NOT REQUIRED TO BE MADE UPON ANY   360          

PARTY WHO IS IN DEFAULT FOR FAILURE TO APPEAR IN THE ACTION IN     362          

WHICH THE JUDGMENT GIVING RISE TO THE EXECUTION WAS RENDERED.      363          

      (2)  THE officer taking them THE LANDS AND TENEMENTS gives   366          

public notice of the DATE, time, and place of THE sale, for at     369          

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

newspaper published in and of general circulation in the county.   371          

The court ordering THE sale may, DESIGNATE in the order of sale,   372          

                                                          8      


                                                                 
designate the newspaper in which such THIS PUBLIC notice shall be  374          

published, AND THIS PUBLIC NOTICE IS SUBJECT TO DIVISION (A) OF    375          

SECTION 2329.27 OF THE REVISED CODE.                               377          

      (B)  A SALE OF LANDS AND TENEMENTS TAKEN IN EXECUTION MAY    380          

BE SET ASIDE IN ACCORDANCE WITH DIVISION (B) OF SECTION 2329.27    382          

OF THE REVISED CODE.                                               383          

      Sec. 2329.27.  (A)  When the advertisement provided for in   392          

PUBLIC NOTICE REQUIRED BY DIVISION (A)(2) OF section 2329.26 of    394          

the Revised Code, is made in a newspaper published weekly, it is   395          

sufficient to insert it for three consecutive weeks.  If there     396          

are both a daily and weekly edition of the paper selected, ARE     397          

PUBLISHED and the circulation of the daily in the county exceeds   399          

that of the weekly IN THE COUNTY, or if the lands and tenements    400          

taken in execution are situated in a city, and there are           401          

published both a daily and weekly edition of the paper selected    402          

ARE PUBLISHED, and the circulation of the daily in such THAT city  404          

exceeds that THE CIRCULATION of the weekly IN THAT CITY, it is     406          

sufficient to publish the advertisement PUBLIC NOTICE in the       407          

daily once a week for three consecutive weeks before the day of    408          

sale, each insertion to be on the same day of the week.  The       409          

expense of such THAT publication in a daily shall not exceed the   410          

cost of publishing it in a weekly.  All                            412          

      (B)(1)  SUBJECT TO DIVISIONS (B)(2) AND (3) OF THIS          414          

SECTION, ALL sales OF LANDS AND TENEMENTS TAKEN IN EXECUTION THAT  415          

ARE made without such advertisement COMPLIANCE WITH THE WRITTEN    417          

NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF SECTION 2329.26 OF    418          

THE REVISED CODE AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION    419          

(A)(2) OF THAT SECTION AND DIVISION (A) OF THIS SECTION shall be   420          

set aside, on motion, by the court to which the execution is       421          

returnable.                                                                     

      (2)  PROOF OF SERVICE ENDORSED UPON A COPY OF THE WRITTEN    424          

NOTICE REQUIRED BY DIVISION (A)(1)(a) OF SECTION 2329.26 OF THE    427          

REVISED CODE SHALL BE CONCLUSIVE EVIDENCE OF THE SERVICE OF THE    429          

WRITTEN NOTICE IN COMPLIANCE WITH THE REQUIREMENTS OF THAT         430          

                                                          9      


                                                                 
DIVISION, UNLESS A PARTY FILES A MOTION TO SET ASIDE THE SALE OF   431          

THE LANDS AND TENEMENTS PURSUANT TO DIVISION (B)(1) OF THIS        432          

SECTION AND ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT    433          

THE PROOF OF SERVICE IS FRAUDULENT.                                434          

      (3)  IF THE COURT TO WHICH THE EXECUTION IS RETURNABLE       436          

ENTERS ITS ORDER CONFIRMING THE SALE OF THE LANDS AND TENEMENTS,   437          

THE ORDER SHALL HAVE BOTH OF THE FOLLOWING EFFECTS:                438          

      (a)  THE ORDER SHALL BE DEEMED TO CONSTITUTE A JUDICIAL      441          

FINDING AS FOLLOWS:                                                             

      (i)  THAT THE SALE OF THE LANDS AND TENEMENTS COMPLIED WITH  444          

THE WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a) OF SECTION   446          

2329.26 OF THE REVISED CODE AND THE PUBLIC NOTICE REQUIREMENTS OF  449          

DIVISION (A)(2) OF THAT SECTION AND DIVISION (A) OF THIS SECTION,  451          

OR THAT COMPLIANCE OF THAT NATURE DID NOT OCCUR BUT THE FAILURE    452          

TO GIVE A WRITTEN NOTICE TO A PARTY ENTITLED TO NOTICE UNDER       453          

DIVISION (A)(1)(a) OF SECTION 2329.26 OF THE REVISED CODE HAS NOT  457          

PREJUDICED THAT PARTY;                                             458          

      (ii)  THAT ALL PARTIES ENTITLED TO NOTICE UNDER DIVISION     462          

(A)(1)(a) OF SECTION 2329.26 OF THE REVISED CODE RECEIVED          465          

ADEQUATE NOTICE OF THE DATE, TIME, AND PLACE OF THE SALE OF THE    466          

LANDS AND TENEMENTS.                                               467          

      (b)  THE ORDER BARS THE FILING OF ANY FURTHER MOTIONS TO     470          

SET ASIDE THE SALE OF THE LANDS AND TENEMENTS.                     471          

      Section 2.  That existing sections 1923.06, 2329.13,         473          

2329.14, 2329.26, and 2329.27 of the Revised Code are hereby       474          

repealed.                                                                       

      Section 3.  In amending sections 2329.13, 2329.14, 2329.26,  476          

and 2329.27 of the Revised Code in this act to require that a      477          

written notice of the date, time, and place of an execution sale   479          

of real or personal property be given to certain parties to the    480          

underlying action, it is the intent of the General Assembly to     481          

respond to the holdings of the Ohio Supreme Court in Central       482          

Trust Co., N.A. v. Jensen (1993), 67 Ohio St. 3d 140, the Court    483          

of Appeals of Clark County in In re Foreclosure of Liens for       485          

                                                          10     


                                                                 
Delinquent Taxes (1992), 79 Ohio App. 3d 766, the Court of         486          

Appeals of Columbiana County in Perpetual Savings Bank v.          487          

Samuelson (1992), 1992 WL 380301, and the Court of Appeals of      489          

Hamilton County in Central Trust Co., N.A. v. Spencer (1987), 41   490          

Ohio App. 3d 237, that publication notice of an execution sale of  491          

property may not afford interested parties with actual notice      492          

that is reasonably calculated, under all the circumstances, to     493          

apprise them of the pendency of the sale and to afford them an     494          

opportunity to take appropriate action to protect their interests  496          

and that satisfies the due process of law requirements of the      497          

Fourteenth Amendment to the United States Constitution and of      498          

Section 16 of Article I of the Ohio Constitution.