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As Reported by House Civil and Commercial Law
123rd General Assembly
Regular Session
1999-2000 | Sub. S. B. No. 30 |
SENATORS LATTA-DRAKE-McLIN-CUPP-MUMPER-
WACHTMANN-
REPRESENTATIVES SALERNO-WILLAMOWSKI-BUCHY
A BILL
To amend sections 1923.06, 2329.13, 2329.14, 2329.26, and 2329.27 of the
Revised Code
to change the procedure by which service is effected in an eviction action, to
require that a specified written notice be given to certain parties to the
underlying action prior to an execution sale of real or personal property, and
to specify consequences of an execution sale that occurs after that notice and
public notice by newspaper publication has been given.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1923.06, 2329.13, 2329.14, 2329.26, and 2329.27 of
the Revised
Code be amended to read as follows:
Sec. 1923.06. (A) Any summons in an action, INCLUDING A CLAIM FOR
POSSESSION, pursuant
to this chapter shall be
issued, be in the form specified, and be served and returned as
provided in this section. Such
service shall be at least ten SEVEN days before the day set for
trial.
(B) Every summons issued under this section to recover
residential premises shall contain the following language printed
in a conspicuous manner: "A complaint to evict you has been
filed with this court. No person shall be evicted unless the
person's
right to possession has ended and no person shall be evicted in
retaliation for the exercise of the person's lawful rights.
If you are depositing rent with the clerk of this court you shall continue
to deposit such rent until the time of the court hearing. The
failure to continue to deposit such rent may result in your
eviction. You may request a trial by jury. You have the right
to seek legal assistance. If you cannot afford a lawyer, you may
contact your local legal aid or legal service office. If none is
available, you may contact your local bar association."
(C) The clerk of the court in which a complaint to evict is filed
shall mail any summons by ordinary
mail, along with a copy of the complaint, document, or other
process to be served, to the defendant at the address set forth
in the caption of the summons and to any address set forth in
any written instructions furnished to the clerk. The mailing
shall be evidenced by a certificate of mailing
which the clerk shall complete and file.
IN ADDITION TO THIS ORDINARY MAIL SERVICE, THE CLERK ALSO SHALL CAUSE
SERVICE OF THAT PROCESS TO BE COMPLETED UNDER DIVISION (D) OR
(E) OF THIS SECTION OR BOTH, DEPENDING UPON WHICH OF THOSE TWO
METHODS OF
SERVICE IS REQUESTED BY THE PLAINTIFF UPON FILING THE COMPLAINT TO EVICT.
(D) The (1) IF REQUESTED, THE clerk shall
deliver sufficient copies of the summons, complaint, document,
or other process to be served to, and service shall be made by,
one of the following persons:
(1)(a) The sheriff of the county in which the premises are
located when the process issues from a court of common pleas or
county court;
(2)(b) The bailiff of the court for service when process
issues from the A municipal court;
(3)(c) Any person who is eighteen years of age or older, who
is not a party, and who has been designated by order of the
court to make service of process when process
issues from any of the courts REFERRED TO in divisions
(D)(1)(a) and (2)(b) of this section.
(E)(2) The person serving
process shall effect service at the premises that are the
subject of the forcible entry and detainer action by one of the
following means:
(1)(a) By locating the person to be served at the premises
to tender a copy of the process and accompanying documents to
that person;
(2)(b) By leaving a copy of the summons, complaint,
document, or the OTHER process with a person of suitable age and
discretion found at the premises if the person to be served
cannot be found at the time the person making
service attempts to serve the summons pursuant to division
(E)(1)(D)(2)(a) of this section;
(3)(c) By posting a copy in a conspicuous place on the
subject premises if service cannot be made pursuant to divisions
(E)(1)(D)(2)(a) and (2)(b) of this section.
(F)(3) Within ten FIVE days after receiving the
summons,
complaint, document, or other process from the clerk for
service, the person making service shall return the process to
the clerk. The person shall indicate on the process which
method described in division (E)(D)(2) of this section was
used to
serve the summons. The clerk shall make the appropriate entry
on the appearance docket.
(G)(E) IF REQUESTED, THE CLERK SHALL MAIL BY CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, A COPY OF THE SUMMONS, COMPLAINT, DOCUMENT, OR
OTHER PROCESS TO BE SERVED TO THE ADDRESS SET FORTH IN THE CAPTION OF THE
SUMMONS AND TO ANY ADDRESS SET FORTH IN ANY WRITTEN INSTRUCTIONS FURNISHED TO
THE CLERK.
(F) Service of process shall be deemed complete on the
date that either ANY of the following has occurred:
(1) Service is made pursuant to division
(E)(1)(D)(2)(a) or (2)(b) of this section.
(2) Both ordinary mail service under division (C) and
service by posting pursuant to division (E)(3)(D)(2)(c) of
this section have
been made.
(H)(1)(3) FOR SERVICE PERFORMED PURSUANT TO DIVISION
(E) OF THIS SECTION, ON THE DATE OF MAILING, IF ON THE DATE OF THE
HEARING EITHER OF THE FOLLOWING APPLIES:
(a) THE CERTIFIED MAIL HAS NOT RETURNED FOR ANY REASON OTHER THAN
REFUSED OR UNCLAIMED.
(b) THE CERTIFIED MAIL HAS NOT BEEN ENDORSED, AND THE ORDINARY
MAIL HAS NOT BEEN RETURNED.
(G)(1) The claim for restitution of the premises
shall be scheduled for hearing in accordance with local court rules,
but in no event sooner than the tenth SEVENTH day from the date
service
is complete.
(2) Answer day for any other claims FILED WITH THE CLAIM FOR
POSSESSION shall be twenty-eight
days from the date service is DEEMED complete UNDER THIS
SECTION.
Sec. 2329.13. The (A) GOODS AND CHATTELS LEVIED UPON
BY VIRTUE OF AN EXECUTION OF A COURT OF RECORD SHALL NOT BE SOLD
UNTIL BOTH OF THE FOLLOWING OCCUR:
(1)(a) EXCEPT AS OTHERWISE PROVIDED
IN DIVISION
(A)(1)(b)
OF THIS SECTION, THE JUDGMENT CREDITOR WHO SEEKS THE SALE OF THE
GOODS AND CHATTELS OR THE JUDGMENT CREDITOR'S ATTORNEY DOES BOTH
OF THE FOLLOWING:
(i) CAUSES A WRITTEN NOTICE OF THE
DATE, TIME, AND PLACE OF THE SALE TO BE SERVED IN ACCORDANCE
WITH DIVISIONS (A) AND (B) OF CIVIL
RULE 5 UPON THE JUDGMENT DEBTOR
AND UPON EACH OTHER PARTY TO THE ACTION IN WHICH THE JUDGMENT GIVING
RISE TO THE EXECUTION WAS RENDERED;
(ii) AT LEAST THREE CALENDAR DAYS
PRIOR TO THE DATE OF THE SALE, FILES WITH THE
CLERK OF THE COURT THAT RENDERED THE JUDGMENT GIVING RISE TO THE
EXECUTION A COPY OF THE WRITTEN NOTICE DESCRIBED IN DIVISION
(A)(1)(a)(i)
OF THIS SECTION WITH PROOF OF SERVICE ENDORSED ON THE COPY IN
THE FORM DESCRIBED IN DIVISION
(D) OF
CIVIL
RULE 5.
(b) SERVICE OF THE WRITTEN NOTICE
DESCRIBED IN DIVISION
(A)(1)(a)(i)
OF THIS SECTION IS NOT REQUIRED TO BE MADE UPON ANY PARTY WHO IS
IN DEFAULT FOR FAILURE TO APPEAR IN THE ACTION IN WHICH THE
JUDGMENT GIVING RISE TO THE EXECUTION WAS RENDERED.
(2)(a) SUBJECT TO DIVISION
(A)(2)(b)
OF THIS SECTION, THE
officer who levies upon THE goods and
chattels by virtue of an execution by a court of record, before
he proceeds to sell them shall give GIVES public notice of
the DATE, time, and
place of THE sale, for at least ten days before the day of
sale.
Such notice shall be given by advertisement published in a
newspaper published in and of general circulation in the county.
The court ordering such THE sale may, DESIGNATE in
the order of sale, designate
the newspaper in which such THIS PUBLIC notice shall be
published.
Where (b) IF the goods to be sold are merchandise or
inventory
used in connection with a trade or business, and such IF
THE sale is to
satisfy a judgment in favor of the state, or one of its political
subdivisions, for delinquent taxes, PUBLIC notice OF THE
SALE shall be given by
published advertisement in a newspaper PUBLISHED IN AND of
general circulation
IN THE COUNTY once a week for three weeks preceding the date of the
sale. In
the case of a sale of goods used in CONNECTION WITH a trade or
business, notice
of the location, date, and nature of such THAT sale ALSO
shall be
conspicuously posted on the premises where the trade or business
is carried on, and on the premises where the goods to be sold are
kept if such goods THEY are located elsewhere.
(B)(1) A SALE OF GOODS AND CHATTELS
LEVIED UPON BY VIRTUE OF AN EXECUTION OF A COURT OF
RECORD MAY BE SET ASIDE IN ACCORDANCE WITH DIVISION
(B)(2) OF THIS SECTION.
(2) SUBJECT TO DIVISIONS
(B)(3) AND (4) OF THIS SECTION,
ALL SALES OF GOODS AND CHATTELS LEVIED UPON BY VIRTUE OF AN
EXECUTION OF A COURT OF RECORD THAT ARE MADE
WITHOUT COMPLIANCE WITH THE WRITTEN NOTICE REQUIREMENTS OF
DIVISION
(A)(1)(a)
OF THIS SECTION AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION
(A)(2) OF THIS SECTION SHALL BE
SET ASIDE, ON MOTION, BY THE COURT TO WHICH THE EXECUTION IS
RETURNABLE.
(3) PROOF OF SERVICE ENDORSED UPON A COPY OF THE WRITTEN
NOTICE REQUIRED BY DIVISION
(A)(1)(a)
OF THIS SECTION SHALL BE CONCLUSIVE EVIDENCE OF THE SERVICE OF
THE WRITTEN NOTICE IN COMPLIANCE WITH THE REQUIREMENTS OF THAT
DIVISION, UNLESS, PRIOR TO THE CONFIRMATION OF THE SALE OF THE
GOODS AND CHATTELS AS DESCRIBED IN DIVISION
(B)(4) OF THIS SECTION, A PARTY
FILES A MOTION TO SET ASIDE THE SALE PURSUANT TO DIVISION
(B)(1) OF THIS SECTION AND
ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT THE PROOF OF
SERVICE IS FRAUDULENT.
(4) IF THE COURT TO WHICH THE EXECUTION IS RETURNABLE
ENTERS ITS ORDER CONFIRMING THE SALE OF THE GOODS AND CHATTELS,
THE ORDER HAS BOTH OF THE FOLLOWING EFFECTS:
(a)THE ORDER SHALL BE DEEMED TO
CONSTITUTE A JUDICIAL FINDING AS FOLLOWS:
(i) THAT THE SALE OF THE GOODS AND
CHATTELS COMPLIED WITH THE WRITTEN NOTICE REQUIREMENTS OF
DIVISION
(A)(1)(a)
OF THIS SECTION AND THE PUBLIC NOTICE REQUIREMENTS OF DIVISION
(A)(2) OF THIS SECTION, OR THAT
COMPLIANCE OF THAT NATURE DID NOT OCCUR BUT THE FAILURE TO GIVE
A WRITTEN NOTICE TO A PARTY ENTITLED TO NOTICE UNDER DIVISION
(A)(1)(a)
OF THIS SECTION HAS NOT PREJUDICED THAT PARTY;
(ii) THAT ALL PARTIES ENTITLED TO NOTICE
UNDER DIVISION
(A)(1)(a)
OF THIS SECTION RECEIVED ADEQUATE NOTICE OF THE DATE, TIME, AND
PLACE OF THE SALE OF THE GOODS AND CHATTELS.
(b) THE ORDER BARS THE
FILING OF ANY FURTHER MOTIONS TO SET ASIDE THE SALE OF THE GOODS
AND CHATTELS.
Sec. 2329.14. When goods and chattels levied upon by execution cannot be sold
for want of bidders, or FOR want of time, the officer who makes
the return shall
annex to the execution a true inventory of the goods and chattels remaining
unsold. The plaintiff in such THAT execution thereupon
may have another execution
issued directing the sale of the property GOODS AND CHATTELS
levied upon;
but it. THE GOODS AND CHATTELS shall not be SO
sold unless the time and place of sale is advertised as directed in
WRITTEN NOTICE REQUIREMENTS OF DIVISION (A)(1)(a)
OF SECTION 2329.13 OF THE REVISED CODE AND THE PUBLIC
NOTICE REQUIREMENTS OF DIVISION (A)(2) OF THAT section
2329.13 of the Revised Code FIRST HAVE BEEN SATISFIED.
DIVISION (B) OF THAT
SECTION ALSO APPLIES TO ANY SALE OF GOODS AND CHATTELS LEVIED
UPON BY VIRTUE OF A SUBSEQUENT EXECUTION OF A COURT OF RECORD
UNDER THIS SECTION.
Sec. 2329.26. (A) Lands and tenements taken in execution shall not
be sold until the BOTH OF THE FOLLOWING OCCUR:
(1)(a) EXCEPT AS OTHERWISE PROVIDED
IN DIVISION
(A)(1)(b)
OF THIS SECTION, THE JUDGMENT CREDITOR WHO SEEKS THE SALE OF THE
LANDS AND TENEMENTS OR THE JUDGMENT CREDITOR'S ATTORNEY DOES
BOTH OF THE FOLLOWING:
(i) CAUSES A WRITTEN NOTICE OF THE
DATE, TIME, AND PLACE OF THE SALE TO BE SERVED IN ACCORDANCE
WITH DIVISIONS (A) AND
(B) OF
CIVIL
RULE 5 UPON THE JUDGMENT DEBTOR
AND UPON EACH OTHER PARTY TO THE ACTION IN WHICH THE JUDGMENT GIVING
RISE TO THE EXECUTION WAS RENDERED;
(ii)AT LEAST SEVEN CALENDAR DAYS
PRIOR TO THE DATE OF THE SALE, FILES WITH THE
CLERK OF THE COURT THAT RENDERED THE JUDGMENT GIVING RISE TO THE
EXECUTION A COPY OF THE WRITTEN NOTICE DESCRIBED IN DIVISION
(A)(1)(a)(i)
OF THIS SECTION WITH PROOF OF SERVICE ENDORSED ON THE COPY IN
THE FORM DESCRIBED IN DIVISION
(D) OF
CIVIL
RULE 5.
(b) SERVICE OF THE WRITTEN NOTICE
DESCRIBED IN DIVISION
(A)(1)(a)(i)
OF THIS SECTION IS NOT REQUIRED TO BE MADE UPON ANY
PARTY WHO IS IN DEFAULT FOR FAILURE TO APPEAR IN THE
ACTION IN WHICH THE JUDGMENT GIVING RISE TO THE EXECUTION WAS
RENDERED.
(2) THE officer taking them THE LANDS AND TENEMENTS
gives
public notice of the DATE, time, and place of THE
sale, for
at least thirty days before the day of sale, by advertisement in a
newspaper
published in and of general circulation in the county. The court ordering
THE sale may, DESIGNATE in the order of sale,
designate the newspaper in which such THIS PUBLIC notice
shall be published,AND THIS PUBLIC NOTICE IS SUBJECT TO
DIVISION (A) OF SECTION 2329.27
OF THE REVISED
CODE.
(B) A SALE OF LANDS AND TENEMENTS
TAKEN IN EXECUTION MAY BE SET ASIDE IN ACCORDANCE
WITH DIVISION (B) OF SECTION
2329.27 OF THE REVISED
CODE.
Sec. 2329.27. (A) When the advertisement provided for in
PUBLIC NOTICE REQUIRED BY DIVISION (A)(2) OF
section 2329.26 of the Revised Code, is made in a newspaper
published weekly, it is sufficient to insert it for three
consecutive weeks. If there are both a daily and weekly edition
of the paper selected, ARE PUBLISHED and the circulation of the
daily in the
county exceeds that of the weekly IN THE COUNTY, or if the lands and
tenements
taken in execution are situated in a city, and there are
published both a daily and weekly edition of the paper selected
ARE PUBLISHED,
and the circulation of the daily in such THAT city exceeds
that THE CIRCULATION of the
weekly IN THAT CITY, it is sufficient to publish the
advertisement PUBLIC NOTICE in the
daily once a week for three consecutive weeks before the day of
sale, each insertion to be on the same day of the week. The
expense of such THAT publication in a daily shall not exceed the
cost
of publishing it in a weekly. All
(B)(1) SUBJECT TO DIVISIONS (B)(2) AND (3) OF THIS
SECTION, ALL sales OF LANDS AND TENEMENTS TAKEN IN EXECUTION THAT
ARE made without such
advertisement COMPLIANCE WITH THE WRITTEN NOTICE REQUIREMENTS OF
DIVISION (A)(1)(a) OF SECTION 2329.26 of the Revised Code AND THE
PUBLIC NOTICE REQUIREMENTS OF DIVISION (A)(2) OF THAT SECTION AND
DIVISION (A) OF THIS SECTION shall be set aside, on motion, by
the court to which the execution is returnable.
(2) PROOF OF SERVICE ENDORSED UPON A
COPY OF THE WRITTEN NOTICE REQUIRED BY DIVISION
(A)(1)(a)
OF SECTION 2329.26 OF THE
REVISED
CODE SHALL BE CONCLUSIVE
EVIDENCE OF THE SERVICE OF THE WRITTEN NOTICE IN COMPLIANCE WITH
THE REQUIREMENTS OF THAT DIVISION, UNLESS A PARTY FILES A MOTION
TO SET ASIDE THE SALE OF THE LANDS AND TENEMENTS PURSUANT TO
DIVISION (B)(1) OF THIS SECTION
AND ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT THE
PROOF OF SERVICE IS FRAUDULENT.
(3) IF THE COURT TO WHICH THE EXECUTION IS RETURNABLE
ENTERS ITS ORDER CONFIRMING THE SALE OF THE LANDS AND TENEMENTS,
THE ORDER SHALL HAVE BOTH OF THE FOLLOWING EFFECTS:
(a) THE ORDER SHALL BE DEEMED TO
CONSTITUTE A JUDICIAL FINDING AS FOLLOWS:
(i) THAT THE SALE OF THE LANDS AND TENEMENTS
COMPLIED WITH THE WRITTEN NOTICE REQUIREMENTS OF DIVISION
(A)(1)(a)
OF SECTION 2329.26 OF THE
REVISED
CODE AND THE PUBLIC NOTICE
REQUIREMENTS OF DIVISION (A)(2)
OF THAT SECTION AND DIVISION
(A) OF THIS SECTION, OR THAT
COMPLIANCE OF THAT NATURE DID NOT OCCUR BUT THE FAILURE TO GIVE
A WRITTEN NOTICE TO A PARTY ENTITLED TO NOTICE UNDER DIVISION
(A)(1)(a)OF SECTION 2329.26 OF THE
REVISED
CODE HAS NOT PREJUDICED THAT
PARTY;
(ii) THAT ALL PARTIES ENTITLED TO NOTICE
UNDER DIVISION
(A)(1)(a)
OF SECTION 2329.26 OF THE
REVISED
CODE RECEIVED ADEQUATE NOTICE
OF THE DATE, TIME, AND PLACE OF THE SALE OF THE LANDS AND
TENEMENTS.
(b) THE ORDER BARS THE
FILING OF ANY FURTHER MOTIONS TO SET ASIDE THE SALE OF THE LANDS
AND TENEMENTS.
Section 2. That existing sections 1923.06, 2329.13, 2329.14, 2329.26,
and 2329.27 of the Revised Code are hereby repealed.
Section 3. In amending sections 2329.13, 2329.14, 2329.26, and
2329.27 of the Revised Code in this act to require that a
written notice of the date, time, and place of an execution
sale of real or personal property be given to certain parties to
the underlying action, it is the intent of the General Assembly
to respond to the holdings of the Ohio Supreme Court in
Central Trust Co., N.A. v.
Jensen (1993), 67 Ohio St. 3d 140, the Court of Appeals
of Clark County in In re Foreclosure
of Liens for Delinquent Taxes
(1992), 79 Ohio App. 3d 766, the Court of Appeals of Columbiana
County in Perpetual Savings Bank v.
Samuelson (1992), 1992 WL 380301, and the Court of
Appeals of Hamilton County in Central Trust
Co., N.A. v. Spencer (1987), 41 Ohio
App. 3d 237, that publication notice of an execution sale of
property may not afford interested parties with actual notice
that is reasonably calculated, under all the circumstances, to
apprise them of the pendency of the sale and to afford them an
opportunity to take appropriate action to protect their
interests and that satisfies the due process of law requirements
of the Fourteenth Amendment to the United States Constitution
and of Section 16 of Article I of the Ohio Constitution.
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