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
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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.
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(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
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(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
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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
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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
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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
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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
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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
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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.