130th Ohio General Assembly
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H. B. No. 618  As Introduced
As Introduced

129th General Assembly
Regular Session
2011-2012
H. B. No. 618


Representative Patmon 



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)
(Case Caption) Case No.

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.
Clerk of the Court
Date"

(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)
Case Number Date

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:
(Optional)

(Name of Judgment Debtor)
(Address of Judgment Debtor)
(Telephone Number of Judgment Debtor)
(Signature of Judgment Debtor)
(Date)

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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