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H. B. No. 618 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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A BILL
To amend sections 2329.091, 2329.17, 2329.18,
2329.26, and 2329.38 and to enact section 2329.092
of the Revised Code to require a levying officer
to conduct the sale of foreclosed real property
within twenty-two business days after the date of
the judgment of foreclosure.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2329.091, 2329.17, 2329.18,
2329.26, and 2329.38 be amended and section 2329.092 of the
Revised Code be enacted to read as follows:
Sec. 2329.091. (A) When (1) Except as otherwise provided in
division (A)(2) of this section, when a judgment creditor files a
praecipe for a writ of execution with a clerk of a common pleas
court pursuant to section 2303.11 of the Revised Code, or with a
clerk of a municipal court pursuant to section 1901.23 of the
Revised Code, or with a clerk of the county court pursuant to
section 1907.47 of the Revised Code, the clerk shall issue a writ
of execution to the levying officer and cause a notice and a
hearing request form to be served upon the judgment debtor. The
court, in accordance with division (E) of this section, shall
appoint a levying officer who shall immediately and simultaneously
execute the writ of execution and serve the notice and the hearing
request form upon the judgment debtor. If the levying officer is
unable to obtain personal service upon the judgment debtor, the
levying officer shall serve the notice and hearing request form
upon the judgment debtor by both certified mail and regular mail
at the judgment debtor's last known address.
(2) When a judgment of foreclosure described under section
2329.092 of the Revised Code is issued and a sale is ordered
pursuant to section 2323.07 of the Revised Code, the clerk of the
court that issued the judgment immediately shall issue a writ of
execution to the levying officer and cause a notice and a hearing
request form to be served upon the judgment debtor. The court, in
accordance with division (E) of this section, immediately shall
appoint a levying officer who shall immediately and simultaneously
execute the writ of execution and serve the notice and the hearing
request form upon the judgment debtor. If the levying officer is
unable to obtain personal service upon the judgment debtor, the
levying officer shall serve the notice and hearing request form
upon the judgment debtor by both certified mail and regular mail
at the judgment debtor's last known address.
(B)(1) The notice to the judgment debtor shall be in
substantially the following form:
"(Name and Address of Court)
NOTICE TO THE JUDGMENT DEBTOR
You are hereby notified that this court has issued a writ of
execution in the above case in favor of (name and address of
judgment creditor), the judgment creditor in this proceeding,
directing that some or all of your property be sold according to
law and the proceeds of the sale be delivered to the clerk of this
court to be used to satisfy all or part of your debt to the
judgment creditor. This writ of execution was issued on the basis
of the judgment creditor's judgment against you that was obtained
in (name of court) in (case number) on (date).
The laws of Ohio and the United States provide that certain
property cannot be taken from you to pay a debt. The law exempts
from execution your interest in or right to specified property as
described in Ohio Revised Code section 2329.66(A). The substance
of this statutory provision is attached to this notice.
If you believe that some or all of your property is exempt
from execution, you may request a hearing before this court by
filling out the enclosed form for requesting a hearing, or a
substantially similar form, and delivering the request for hearing
to the office of the clerk of this court no later than the end of
the fifth business day after you receive this notice. In the space
provided on the form, you may state your reason for claiming that
some of your property is exempt from execution, but you are not
required to do so. If you do not state reasons on the form, the
court will permit you to state your reasons at the hearing. If you
do state reasons on the form, you may also state other reasons at
the hearing.
If you request a hearing by delivering your request for
hearing no later than the end of the fifth business day after you
receive this notice, the hearing will be conducted no later than
twelve days after the court receives your request, unless you
request an earlier hearing due to an emergency, in which case the
court will schedule the hearing as soon as practicable. At the
hearing, the court will consider the amount of your property that
is exempt from execution and the amount that can be used to
satisfy all or part of the judgment you owe to the judgment
creditor. The court will not hear or consider any objections to
the judgment itself at the hearing.
If you do not request a hearing by delivering your request
prior to the end of the fifth business day after you receive this
notice, you give up your right to a hearing and to assert reasons
why some or all of your property should not be used for payment of
your debt to the judgment creditor.
If you have any questions concerning this matter, you may
contact the office of the clerk of this court. If you want legal
representation, you should contact your lawyer immediately. If you
need the name of a lawyer, contact the local bar association or
your local legal aid or legal services office.
(2) The notice that is served upon the judgment debtor shall,
securely and prominently, have attached to it a document setting
forth the substance of division (A) of section 2329.66 of the
Revised Code.
(C) The hearing request form that is served upon the judgment
debtor shall have attached to it a postage-paid, self-addressed
envelope or shall be on a postage-paid self-addressed postcard,
and shall be in substantially the following form:
"(Name and Address of Court)
REQUEST FOR HEARING
I believe that some or all of my property may be exempt from
execution in the above case and request that a hearing be held no
later than twelve days after the delivery of this request to the
court.
OPTIONAL
I request that a hearing be held as soon as possible due to
emergency circumstances as follows:
I believe that some or all of my property may be exempt from
execution for the following reasons:
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(Name of Judgment Debtor) |
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(Address of Judgment Debtor) |
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(Telephone Number of Judgment Debtor) |
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(Signature of Judgment Debtor) |
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(Date) |
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WARNING: IF YOU DO NOT DELIVER THIS REQUEST FOR HEARING OR A
REQUEST IN A SUBSTANTIALLY SIMILAR FORM TO THE OFFICE OF THE CLERK
OF THIS COURT WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF IT,
YOU WAIVE YOUR RIGHT TO A HEARING, AND SOME OR ALL OF YOUR
PROPERTY WILL BE USED TO SATISFY ALL OR PART OF YOUR DEBT TO
(JUDGMENT CREDITOR'S NAME)."
(D) A judgment debtor shall receive a hearing in accordance
with this division if
he
the judgment debtor delivers a written
request for a hearing to the clerk of the court within five
business days after receipt of the notice required under division
(A) of this section. The judgment debtor may set forth on the
request its reasons for believing that some or all of its property
is exempt from execution, but neither its inclusion of reasons on
the request nor its failure to include reasons constitutes a
waiver of any defense or affects its right to produce evidence at
any hearing.
If the judgment debtor makes the request within the
prescribed time, the court shall schedule a hearing no later than
twelve days after the court receives the request, unless the
judgment debtor advises the court that an emergency hearing is
necessary, in which case the court shall schedule the hearing as
soon as practicable after the request is made. The clerk of court
shall send notice of the date, time, and place of the hearing to
the parties in accordance with division (G) of this section. The
hearing shall be limited to a consideration of the amount of the
property of the judgment debtor that can be executed upon to
satisfy all or part of the debt owed to the judgment creditor.
If the judgment debtor does not request a hearing within the
prescribed time, the court may grant a hearing if, prior to the
sale of the property by the levying officer, the judgment debtor
establishes a reasonable justification for its failure to request
the hearing within the prescribed time.
(E) The court shall appoint a levying officer to immediately
and simultaneously execute the writ of execution and serve the
notice and the hearing request form required by division (A) of
this section upon the judgment debtor. The levying officer shall
be the bailiff, a deputy bailiff, or an ex officio deputy bailiff
of the court as specified in Chapter 1901. of the Revised Code or
another chapter of the Revised Code, or the sheriff of the
appropriate county. Notwithstanding any contrary provision of the
Revised Code, if the bailiff, deputy bailiff, ex officio deputy
bailiff, or sheriff is not able to perform the duties of the
levying officer in accordance with this section, the court, upon
application by the judgment creditor, shall appoint a
disinterested person to serve as the levying officer. The
disinterested person shall post a bond with the clerk of the court
in an amount set by the court to ensure the faithful performance
of
his
the disinterested person's duties.
(F) If the nature of the property executed upon precludes the
levying officer from taking immediate physical possession of the
property, the court, upon application by the judgment creditor or
the levying officer, shall appoint a custodian of the property
until the levying officer is able to take physical possession of
the property. If the person appointed as custodian converts the
property, fails to conserve it, or places it beyond the reach of
the levying officer, the custodian shall be subject to a citation
for contempt.
(G) The clerk of the court shall send any notice of hearing
to the parties by regular mail or otherwise in accordance with
Rule 5 of the Rules of Civil Procedure.
(H) If a hearing is conducted, the court shall determine what
portion, if any, of the property of the judgment debtor is exempt
under section 2329.66 of the Revised Code and shall issue an order
to the levying officer setting forth that determination and
ordering the levying officer to sell the nonexempt property
according to law.
(I) If it is necessary to ascertain the amount or value of
the judgment debtor's personal property that is exempt under
section 2329.66 of the Revised Code, it shall be estimated and
appraised in accordance with section 2329.68 of the Revised Code.
Sec. 2329.092. (A) As used in this section, "mortgagee"
means a financial institution that is authorized to issue a
mortgage on real property located in this state. "Mortgagee" does
not include a governmental entity.
(B) Except as otherwise provided in division (C) of this
section, with respect to any land or tenement for which a judgment
of foreclosure has been issued pursuant to section 2323.07 of the
Revised Code and in which the plaintiff in that action is a
mortgagee, the levying officer appointed under section 2329.091 of
the Revised Code shall conduct the sale of the land or tenement
identified in the writ of execution in accordance with sections
2329.01 to 2329.61 of the Revised Code twenty-two business days
after the date the judgment of foreclosure is issued. A judgment
creditor shall issue the notices required under division (A)(1) of
section 2329.26 of the Revised Code in a manner that allows the
sale to occur within that twenty-two-day period.
(C) If a judgment debtor requests a hearing under section
2329.091 of the Revised Code concerning property that may be
exempt from execution, the levying officer shall conduct the sale
required under division (B) of this section twenty-two business
days after the date the court issues an order stating the amount
of property subject to execution. A judgment creditor shall issue
the notices required under division (A)(1) of section 2329.26 of
the Revised Code in a manner that allows the sale to occur within
that twenty-two-day period.
(D) The officer who makes a levy, or holds an order of sale
pursuant to this section, may demand of the mortgagee or the
mortgagee's agent or attorney the fees of the printer for
publishing the notice required under section 2329.26 of the
Revised Code. The officer shall not withhold publication due to
failure to pay the fees.
Sec. 2329.17. (A) When execution is levied upon lands and
tenements, the officer who makes the levy shall call an inquest of
three disinterested freeholders, residents of the county where the
lands taken in execution are situated, and administer to them an
oath impartially to appraise the property so levied upon, upon
actual view. They forthwith shall return to such officer, under
their hands, an estimate of the real value of the property in
money.
With respect to the appraisal of any property identified in
section 2329.092 of the Revised Code, they shall return the
estimate to the officer prior to the date by which the officer is
required to conduct the sale under that section.
(B) The municipal corporation or township in which the real
property is situated may inspect prior to the judicial sale any
structures located on lands subject to a writ of execution.
Sec. 2329.18. When an officer receives the return provided
for in division (A) of section 2329.17 of the Revised Code, the
officer forthwith shall deposit a copy of it with the clerk of the
court from which the writ issued, and, except with respect to real
estate described in section 2329.092 of the Revised Code,
immediately advertise and sell such real estate in conformity with
sections 2329.01 to 2329.61 of the Revised Code.
Sec. 2329.26. (A) Lands Except as otherwise provided in
section 2329.092 of the Revised Code, lands and tenements taken in
execution shall not be sold until all 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 the lands and tenements gives public
notice of the date, time, and place of the sale once a week for at
least three consecutive weeks before the day of sale by
advertisement in a newspaper of general circulation in the county.
The newspaper shall meet the requirements of section 7.12 of the
Revised Code. The court ordering the sale may designate in the
order of sale the newspaper in which this public notice shall be
published.
(3) The officer taking the lands and tenements shall collect
the purchaser's information required by section 2329.271 of the
Revised Code.
(B) A sale of lands and tenements taken in execution may be
set aside in accordance with division (A) or (B) of section
2329.27 of the Revised Code.
Sec. 2329.38. The Except as otherwise provided in section
2329.092 of the Revised Code, the officer who makes a levy, or
holds an order of sale, before giving notice of the sale, may
demand of the plaintiff, his the plaintiff's agent or attorney,
the fees of the printer for publishing such notice. The officer
need not make such publication until the fees are paid.
Section 2. That existing section 2329.091, 2329.17, 2329.18,
2329.26, and 2329.38 of the Revised Code are hereby repealed.
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