Bill Text: OH HB618 | 2011-2012 | 129th General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-12-18 - Introduced to House [HB618 Detail]

Download: Ohio-2011-HB618-Introduced.html

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As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 618

Representative Patmon 

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A BILL

To amend sections 2329.091, 2329.17, 2329.18,

1

2329.26, and 2329.38 and to enact section 2329.092

2

of the Revised Code to require a levying officer

3

to conduct the sale of foreclosed real property

4

within twenty-two business days after the date of

5

the judgment of foreclosure.

6

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

Section 1.  That sections 2329.091, 2329.17, 2329.18,	7
2329.26, and 2329.38 be amended and section 2329.092 of the	8
Revised Code be enacted to read as follows:	9

Sec. 2329.091.  (A) When(1) Except as otherwise provided in	10
division (A)(2) of this section, when a judgment creditor files a	11
praecipe for a writ of execution with a clerk of a common pleas	12
court pursuant to section 2303.11 of the Revised Code, or with a	13
clerk of a municipal court pursuant to section 1901.23 of the	14
Revised Code, or with a clerk of the county court pursuant to	15
section 1907.47 of the Revised Code, the clerk shall issue a writ	16
of execution to the levying officer and cause a notice and a	17
hearing request form to be served upon the judgment debtor. The	18
court, in accordance with division (E) of this section, shall	19
appoint a levying officer who shall immediately and simultaneously	20
execute the writ of execution and serve the notice and the hearing	21
request form upon the judgment debtor. If the levying officer is	22
unable to obtain personal service upon the judgment debtor, the	23
levying officer shall serve the notice and hearing request form	24
upon the judgment debtor by both certified mail and regular mail	25
at the judgment debtor's last known address.	26

(2) When a judgment of foreclosure described under section	27
2329.092 of the Revised Code is issued and a sale is ordered	28
pursuant to section 2323.07 of the Revised Code, the clerk of the	29
court that issued the judgment immediately shall issue a writ of	30
execution to the levying officer and cause a notice and a hearing	31
request form to be served upon the judgment debtor. The court, in	32
accordance with division (E) of this section, immediately shall	33
appoint a levying officer who shall immediately and simultaneously	34
execute the writ of execution and serve the notice and the hearing	35
request form upon the judgment debtor. If the levying officer is	36
unable to obtain personal service upon the judgment debtor, the	37
levying officer shall serve the notice and hearing request form	38
upon the judgment debtor by both certified mail and regular mail	39
at the judgment debtor's last known address.	40

(B)(1) The notice to the judgment debtor shall be in	41
substantially the following form:	42

"(Name and Address of Court)	43

(Case Caption)

Case No.

44

NOTICE TO THE JUDGMENT DEBTOR	45

You are hereby notified that this court has issued a writ of	46
execution in the above case in favor of (name and address of	47
judgment creditor), the judgment creditor in this proceeding,	48
directing that some or all of your property be sold according to	49
law and the proceeds of the sale be delivered to the clerk of this	50
court to be used to satisfy all or part of your debt to the	51
judgment creditor. This writ of execution was issued on the basis	52
of the judgment creditor's judgment against you that was obtained	53
in (name of court) in (case number) on (date).	54

The laws of Ohio and the United States provide that certain	55
property cannot be taken from you to pay a debt. The law exempts	56
from execution your interest in or right to specified property as	57
described in Ohio Revised Code section 2329.66(A). The substance	58
of this statutory provision is attached to this notice.	59

If you believe that some or all of your property is exempt	60
from execution, you may request a hearing before this court by	61
filling out the enclosed form for requesting a hearing, or a	62
substantially similar form, and delivering the request for hearing	63
to the office of the clerk of this court no later than the end of	64
the fifth business day after you receive this notice. In the space	65
provided on the form, you may state your reason for claiming that	66
some of your property is exempt from execution, but you are not	67
required to do so. If you do not state reasons on the form, the	68
court will permit you to state your reasons at the hearing. If you	69
do state reasons on the form, you may also state other reasons at	70
the hearing.	71

If you request a hearing by delivering your request for	72
hearing no later than the end of the fifth business day after you	73
receive this notice, the hearing will be conducted no later than	74
twelve days after the court receives your request, unless you	75
request an earlier hearing due to an emergency, in which case the	76
court will schedule the hearing as soon as practicable. At the	77
hearing, the court will consider the amount of your property that	78
is exempt from execution and the amount that can be used to	79
satisfy all or part of the judgment you owe to the judgment	80
creditor. The court will not hear or consider any objections to	81
the judgment itself at the hearing.	82

If you do not request a hearing by delivering your request	83
prior to the end of the fifth business day after you receive this	84
notice, you give up your right to a hearing and to assert reasons	85
why some or all of your property should not be used for payment of	86
your debt to the judgment creditor.	87

If you have any questions concerning this matter, you may	88
contact the office of the clerk of this court. If you want legal	89
representation, you should contact your lawyer immediately. If you	90
need the name of a lawyer, contact the local bar association or	91
your local legal aid or legal services office.	92

			93
	Clerk of the Court		94
			95
	Date"		96

(2) The notice that is served upon the judgment debtor shall,	97
securely and prominently, have attached to it a document setting	98
forth the substance of division (A) of section 2329.66 of the	99
Revised Code.	100

(C) The hearing request form that is served upon the judgment	101
debtor shall have attached to it a postage-paid, self-addressed	102
envelope or shall be on a postage-paid self-addressed postcard,	103
and shall be in substantially the following form:	104

"(Name and Address of Court)	105

Case Number

Date

106

REQUEST FOR HEARING	107

I believe that some or all of my property may be exempt from	108
execution in the above case and request that a hearing be held no	109
later than twelve days after the delivery of this request to the	110
court.	111

OPTIONAL	112

I request that a hearing be held as soon as possible due to	113
emergency circumstances as follows:	114

		115
		116
		117

I believe that some or all of my property may be exempt from	118
execution for the following reasons:	119

		120
(Optional)		121
		122
		123

			124
	(Name of Judgment Debtor)		125
			126
	(Address of Judgment Debtor)		127
			128
	(Telephone Number of Judgment Debtor)		129
			130
	(Signature of Judgment Debtor)		131
			132
	(Date)		133

WARNING: IF YOU DO NOT DELIVER THIS REQUEST FOR HEARING OR A	134
REQUEST IN A SUBSTANTIALLY SIMILAR FORM TO THE OFFICE OF THE CLERK	135
OF THIS COURT WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF IT,	136
YOU WAIVE YOUR RIGHT TO A HEARING, AND SOME OR ALL OF YOUR	137
PROPERTY WILL BE USED TO SATISFY ALL OR PART OF YOUR DEBT TO	138
(JUDGMENT CREDITOR'S NAME)."	139

(D) A judgment debtor shall receive a hearing in accordance	140
with this division if hethe judgment debtor delivers a written	141
request for a hearing to the clerk of the court within five	142
business days after receipt of the notice required under division	143
(A) of this section. The judgment debtor may set forth on the	144
request its reasons for believing that some or all of its property	145
is exempt from execution, but neither its inclusion of reasons on	146
the request nor its failure to include reasons constitutes a	147
waiver of any defense or affects its right to produce evidence at	148
any hearing.	149

If the judgment debtor makes the request within the	150
prescribed time, the court shall schedule a hearing no later than	151
twelve days after the court receives the request, unless the	152
judgment debtor advises the court that an emergency hearing is	153
necessary, in which case the court shall schedule the hearing as	154
soon as practicable after the request is made. The clerk of court	155
shall send notice of the date, time, and place of the hearing to	156
the parties in accordance with division (G) of this section. The	157
hearing shall be limited to a consideration of the amount of the	158
property of the judgment debtor that can be executed upon to	159
satisfy all or part of the debt owed to the judgment creditor.	160

If the judgment debtor does not request a hearing within the	161
prescribed time, the court may grant a hearing if, prior to the	162
sale of the property by the levying officer, the judgment debtor	163
establishes a reasonable justification for its failure to request	164
the hearing within the prescribed time.	165

(E) The court shall appoint a levying officer to immediately	166
and simultaneously execute the writ of execution and serve the	167
notice and the hearing request form required by division (A) of	168
this section upon the judgment debtor. The levying officer shall	169
be the bailiff, a deputy bailiff, or an ex officio deputy bailiff	170
of the court as specified in Chapter 1901. of the Revised Code or	171
another chapter of the Revised Code, or the sheriff of the	172
appropriate county. Notwithstanding any contrary provision of the	173
Revised Code, if the bailiff, deputy bailiff, ex officio deputy	174
bailiff, or sheriff is not able to perform the duties of the	175
levying officer in accordance with this section, the court, upon	176
application by the judgment creditor, shall appoint a	177
disinterested person to serve as the levying officer. The	178
disinterested person shall post a bond with the clerk of the court	179
in an amount set by the court to ensure the faithful performance	180
of histhe disinterested person's duties.	181

(F) If the nature of the property executed upon precludes the	182
levying officer from taking immediate physical possession of the	183
property, the court, upon application by the judgment creditor or	184
the levying officer, shall appoint a custodian of the property	185
until the levying officer is able to take physical possession of	186
the property. If the person appointed as custodian converts the	187
property, fails to conserve it, or places it beyond the reach of	188
the levying officer, the custodian shall be subject to a citation	189
for contempt.	190

(G) The clerk of the court shall send any notice of hearing	191
to the parties by regular mail or otherwise in accordance with	192
Rule 5 of the Rules of Civil Procedure.	193

(H) If a hearing is conducted, the court shall determine what	194
portion, if any, of the property of the judgment debtor is exempt	195
under section 2329.66 of the Revised Code and shall issue an order	196
to the levying officer setting forth that determination and	197
ordering the levying officer to sell the nonexempt property	198
according to law.	199

(I) If it is necessary to ascertain the amount or value of	200
the judgment debtor's personal property that is exempt under	201
section 2329.66 of the Revised Code, it shall be estimated and	202
appraised in accordance with section 2329.68 of the Revised Code.	203

Sec. 2329.092.  (A) As used in this section, "mortgagee"	204
means a financial institution that is authorized to issue a	205
mortgage on real property located in this state. "Mortgagee" does	206
not include a governmental entity.	207

(B) Except as otherwise provided in division (C) of this	208
section, with respect to any land or tenement for which a judgment	209
of foreclosure has been issued pursuant to section 2323.07 of the	210
Revised Code and in which the plaintiff in that action is a	211
mortgagee, the levying officer appointed under section 2329.091 of	212
the Revised Code shall conduct the sale of the land or tenement	213
identified in the writ of execution in accordance with sections	214
2329.01 to 2329.61 of the Revised Code twenty-two business days	215
after the date the judgment of foreclosure is issued. A judgment	216
creditor shall issue the notices required under division (A)(1) of	217
section 2329.26 of the Revised Code in a manner that allows the	218
sale to occur within that twenty-two-day period.	219

(C) If a judgment debtor requests a hearing under section	220
2329.091 of the Revised Code concerning property that may be	221
exempt from execution, the levying officer shall conduct the sale	222
required under division (B) of this section twenty-two business	223
days after the date the court issues an order stating the amount	224
of property subject to execution. A judgment creditor shall issue	225
the notices required under division (A)(1) of section 2329.26 of	226
the Revised Code in a manner that allows the sale to occur within	227
that twenty-two-day period.	228

(D) The officer who makes a levy, or holds an order of sale	229
pursuant to this section, may demand of the mortgagee or the	230
mortgagee's agent or attorney the fees of the printer for	231
publishing the notice required under section 2329.26 of the	232
Revised Code. The officer shall not withhold publication due to	233
failure to pay the fees.	234

Sec. 2329.17.  (A) When execution is levied upon lands and	235
tenements, the officer who makes the levy shall call an inquest of	236
three disinterested freeholders, residents of the county where the	237
lands taken in execution are situated, and administer to them an	238
oath impartially to appraise the property so levied upon, upon	239
actual view. They forthwith shall return to such officer, under	240
their hands, an estimate of the real value of the property in	241
money. With respect to the appraisal of any property identified in	242
section 2329.092 of the Revised Code, they shall return the	243
estimate to the officer prior to the date by which the officer is	244
required to conduct the sale under that section.	245

(B) The municipal corporation or township in which the real	246
property is situated may inspect prior to the judicial sale any	247
structures located on lands subject to a writ of execution.	248

Sec. 2329.18.  When an officer receives the return provided	249
for in division (A) of section 2329.17 of the Revised Code, the	250
officer forthwith shall deposit a copy of it with the clerk of the	251
court from which the writ issued, and, except with respect to real	252
estate described in section 2329.092 of the Revised Code,	253
immediately advertise and sell such real estate in conformity with	254
sections 2329.01 to 2329.61 of the Revised Code.	255

Sec. 2329.26.  (A) LandsExcept as otherwise provided in	256
section 2329.092 of the Revised Code, lands and tenements taken in	257
execution shall not be sold until all of the following occur:	258

(1)(a) Except as otherwise provided in division (A)(1)(b) of	259
this section, the judgment creditor who seeks the sale of the	260
lands and tenements or the judgment creditor's attorney does both	261
of the following:	262

(i) Causes a written notice of the date, time, and place of	263
the sale to be served in accordance with divisions (A) and (B) of	264
Civil Rule 5 upon the judgment debtor and upon each other party to	265
the action in which the judgment giving rise to the execution was	266
rendered;	267

(ii) At least seven calendar days prior to the date of the	268
sale, files with the clerk of the court that rendered the judgment	269
giving rise to the execution a copy of the written notice	270
described in division (A)(1)(a)(i) of this section with proof of	271
service endorsed on the copy in the form described in division (D)	272
of Civil Rule 5.	273

(b) Service of the written notice described in division	274
(A)(1)(a)(i) of this section is not required to be made upon any	275
party who is in default for failure to appear in the action in	276
which the judgment giving rise to the execution was rendered.	277

(2) The officer taking the lands and tenements gives public	278
notice of the date, time, and place of the sale once a week for at	279
least three consecutive weeks before the day of sale by	280
advertisement in a newspaper of general circulation in the county.	281
The newspaper shall meet the requirements of section 7.12 of the	282
Revised Code. The court ordering the sale may designate in the	283
order of sale the newspaper in which this public notice shall be	284
published.	285

(3) The officer taking the lands and tenements shall collect	286
the purchaser's information required by section 2329.271 of the	287
Revised Code.	288

(B) A sale of lands and tenements taken in execution may be	289
set aside in accordance with division (A) or (B) of section	290
2329.27 of the Revised Code.	291

Sec. 2329.38. TheExcept as otherwise provided in section	292
2329.092 of the Revised Code, the officer who makes a levy, or	293
holds an order of sale, before giving notice of the sale, may	294
demand of the plaintiff, histhe plaintiff's agent or attorney,	295
the fees of the printer for publishing such notice. The officer	296
need not make such publication until the fees are paid.	297

Section 2.  That existing section 2329.091, 2329.17, 2329.18,	298
2329.26, and 2329.38 of the Revised Code are hereby repealed.	299