Chapter 2737: REPLEVIN

2737.01 Replevin definitions.

As used in this chapter:

(A) "Movant" means a party to an action who has filed a motion for an order of possession of specific personal property pursuant to section 2737.03 of the Revised Code.

(B) "Respondent" means the party against whom a motion for an order of possession of specific personal property pursuant to section 2737.03 of the Revised Code is filed.

(C) "Probable cause to support the motion" means that it is likely that the movant will obtain judgment against the respondent that entitles the movant to permanent possession of the specific personal property that is the subject of a motion filed pursuant to section 2737.03 of the Revised Code.

(D) "Order of possession" means the order issued by a court under this chapter for delivery to the movant of possession of specific personal property pending final judgment in the action.

(E) "Levying officer" means the sheriff, another authorized law enforcement officer, or a bailiff who is ordered by the court to take possession of property and deliver it to the movant.

(F) "Occupied dwelling unit" means a structure that is used in whole or in part as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household and the facilities or appurtenances in it and in which any person is present or is likely to be present, except that such a structure is not an occupied dwelling unit at any time if, after reasonable efforts to personally contact any person who may be present in the structure at that time, the person who made the efforts reasonably believes that no person is present in the structure at that time.

Effective Date: 03-13-1986

2737.02 Pre-judgment recovery of personal property.

The possession of specific personal property may be recovered in a civil action prior to the entry of judgment, only as provided in sections 2737.01 to 2737.20 of the Revised Code.

Effective Date: 08-26-1982

2737.03 Motion and affidavit for order of possession of property.

Any party to an action involving a claim for the recovery of specific personal property, upon or at any time after commencement of the action, may apply to the court by written motion for an order of possession of the property. The motion shall have attached to it the affidavit of the movant, his agent, or his attorney containing all of the following:

(A) A description of the specific personal property claimed and the approximate value of each item or category of property claimed;

(B) The specific interest of the movant in the property and, if the interest is based upon a written instrument, a copy of that instrument;

(C) The manner in which the respondent came into possession of the property, the reason that the detention is wrongful and, to the best of the knowledge of the movant, the reason, if any, that the respondent may claim the detention is not wrongful;

(D) The use to which the respondent has put the property, as determined by the movant after such investigation as is reasonable in the circumstances;

(E) The extent, if any, to which the movant is or will be damaged by the respondent's detention of the property;

(F) To the best of the movant's knowledge, the location of the property;

(G) That the property was not taken for a tax, assessment, or fine pursuant to statute, or seized under execution of judgment against the property of the movant or, if so seized, that it is statutorily exempt from seizure.

Effective Date: 03-13-1986

2737.04 Request for hearing on motion for order of possession of property.

A respondent to a motion filed under section 2737.03 of the Revised Code may receive a hearing on the motion in accordance with section 2737.07 of the Revised Code by delivering a written request for a hearing to the court within five business days after receipt of the notice provided pursuant to section 2737.05 of the Revised Code. The request may set forth the respondent's reasons for disputing the movant's claim for possession of the property. However, neither the respondent's inclusion of nor his failure to include such reasons upon the request constitutes a waiver of any defense of the respondent or affects the respondent's right to produce evidence at any hearing or at the trial of the action. The time and place for the hearing shall be that set forth in the notice. If a written request for a hearing is not received by the court within the prescribed time and the court does not grant a continuance of the scheduled hearing in accordance with division (B) of section 2737.06 of the Revised Code, the hearing scheduled pursuant to section 2737.07 of the Revised Code immediately shall be canceled and the court at any time thereafter, upon request of the movant, may issue an order of possession in accordance with division (A) of section 2737.06 of the Revised Code.

Effective Date: 03-13-1986

2737.05 Form for notice of motion for an order of possession.

(A) Upon the filing of a motion for an order of possession pursuant to section 2737.03 of the Revised Code, the movant shall file with the clerk of the court a praecipe instructing the clerk to issue to the respondent a notice of the proceeding. Upon receipt of the praecipe, the clerk shall issue the notice which shall be in substantially the following form:

"(Name and Address of Court)"

Case No. ....................................

(Case Caption)

NOTICE

You are hereby notified that (name and address of movant), the movant in this proceeding, has applied to this court for the recovery of possession of (describe property) claimed to be in your possession. The basis for this application is indicated in the documents that are enclosed with this notice.

If you dispute the movant's claim for possession of property and believe that you are entitled to retain possession of the property because it is exempt or for any other reason, you may request a hearing before this court by disputing the claim in the request for hearing form appearing below, or in a substantially similar form and delivering the request for the hearing to this court, at the office of the clerk of this court, not later than the end of the fifth business day after you receive this notice. You may state your reasons for disputing the claim in the space provided on the form; however, you are not required to do so. If you do state your reasons for disputing the claim, you are not prohibited from stating any other reasons at the hearing, and if you do not state your reasons, it will not be held against you by the court and you can state your reasons at the hearing.

If you request a hearing, it will be conducted in .............. courtroom ............., (address of court), at ......m. on .........., ........

You may avoid having a hearing but retain possession of the property until the entry of final judgment in the action by filing with the court, at the office of the clerk of this court, not later than the end of the fifth business day after you receive this notice, a bond executed by an acceptable surety in the amount of $............

If you do not request a hearing or file a bond on or before the end of the fifth business day after you receive this notice, the court, without further notice to you, may order a law enforcement officer or bailiff to take possession of the property. Notice of the dates, times, places, and purposes of any subsequent hearings and of the date, time, and place of the trial of the action will be sent to you.

........................................................

Clerk of Court

Date: .............................................."

(B) Along with the notice required by division (A) of this section, the clerk of the court also shall deliver to the respondent, in accordance with division (C) of this section, a request for hearing form together with a postage-paid, self-addressed envelope or a request for hearing form on a postage-paid, self-addressed postcard. The request for hearing shall be in substantially the following form:

"(Name and Address of Court)

Case Number ............. Date ..............

REQUEST FOR HEARING

I dispute the claim for the possession of property in the above case and request that a hearing in this matter be held at the time and place set forth in the notice that I previously received.

I dispute the claim for the following reasons:

................................................................................................................................................................

(Optional)

................................................................................................................................................................

................................................................................................................................................................

...............................................................

(Name of Respondent)

...............................................................

(Signature)

...............................................................

(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 AT THIS TIME AND YOU MAY BE REQUIRED TO GIVE UP THE PROPERTY SOUGHT WITHOUT A HEARING."

(C) The notice required by division (A) of this section shall be served on the respondent in duplicate not less than seven business days prior to the date on which the hearing is scheduled, together with a copy of the complaint and summons, if not previously served, and a copy of the motion for the delivery of property and the affidavit attached to the motion, in the same manner as provided in the Rules of Civil Procedure for the service of process. Service may be effected by publication as provided in the Rules of Civil Procedure except that the number of weeks for publication may be reduced by the court to the extent appropriate.

Effective Date: 05-09-2000

2737.06 Issuing order of possession without hearing.

(A) If a motion for an order of possession has been filed pursuant to section 2737.03 of the Revised Code, the court may issue an order of possession without conducting a hearing if it finds all of the following:

(1) The notice, motion, and affidavit have been served on the respondent as required by section 2737.05 of the Revised Code;

(2) The respondent has not requested a hearing within the prescribed time pursuant to section 2737.04 of the Revised Code, and a continuance of the scheduled hearing has not been granted pursuant to division (B) of this section;

(3) The respondent has not filed a bond on or before the fifth business day after he received the notice;

(4) The court finds, on the basis of the affidavit, that there is probable cause to support the motion.

(B) If the respondent does not request a hearing on the motion within the prescribed time pursuant to section 2737.04 of the Revised Code, the court nevertheless may grant a continuance of the scheduled hearing if the respondent, prior to the time at which the hearing was scheduled, as indicated on the notice served on the respondent under section 2737.04 of the Revised Code or the time of issuance of an order of possession, whichever is earlier, establishes a reasonable justification for his failure to request the hearing within the prescribed time. If the court grants such a continuance of the hearing, it shall cause the matter to be set for hearing as soon as practicable thereafter, but in no event shall the continued hearing be set for a time that is more than five business days after the date on which the original hearing was scheduled unless the movant consents to the setting of a hearing at a later time. The continued hearing shall be conducted in accordance with section 2737.07 of the Revised Code.

(C) If the court grants a continuance of the scheduled hearing pursuant to division (B) of this section, the court shall not issue an order of possession without a hearing pursuant to division (A) of this section unless the respondent subsequently delivers written notice to the contrary to the court.

Effective Date: 03-13-1986

2737.07 Hearing on motion for order of possession of property.

(A) Upon the filing of the motion for an order of possession pursuant to section 2737.03 of the Revised Code, the court shall cause the matter to be set for hearing within twenty days thereafter and the respondent shall be notified in accordance with section 2737.05 of the Revised Code.

(B) If a hearing is requested in accordance with section 2737.04 of the Revised Code or if a continuance is granted in accordance with division (B) of section 2737.06 of the Revised Code, the hearing shall be limited to a consideration of whether there is probable cause to support the motion.

The court shall issue an order of possession if it finds, on the basis of the affidavit and, if applicable, the evidence presented at the hearing, that there is probable cause to support the motion.

(C) Any failure of the respondent to oppose the motion or to refute any evidence presented by the movant shall not constitute a waiver of any defense of the respondent or affect the respondent's right to produce evidence at subsequent hearings or at the trial of the action.

(D) The respondent shall be sent prior notice of the date, time, place, and purpose of any hearing other than the hearing set under division (A) of this section and of the date, time, and place of the trial of the action.

Effective Date: 08-26-1982

2737.08 Order of possession contents.

(A) An order of possession issued by the court shall be addressed and delivered to the levying officer. It shall contain all of the following:

(1) The names of the parties and the court in which the action was brought;

(2) A description of the property to be seized that is sufficient to enable the levying officer to identify it;

(3) The location of the property, if known;

(4) A commandment to the levying officer to take the property after the order has taken effect and deliver it to the movant;

(5) A statement that the respondent may recover the property taken by filing a bond with the court and a statement of the amount of the bond.

(B) In addition to the order of possession delivered to the levying officer, the court may issue an order of possession to the respondent to deliver possession of the property to the movant at the place the court designates and within a time specified in the order, or to file a bond pursuant to section 2737.11 of the Revised Code within that time.

(C) The order [of] possession other than one issued under section 2737.19 of the Revised Code shall be served upon the respondent in the same manner as provided in the Rules of Civil Procedure for the service of papers subsequent to original complaints.

Effective Date: 03-13-1986

2737.09 Execution of order.

The levying officer promptly shall execute the order of possession after it has taken effect by taking possession of the property described in the order and by delivering the property to the movant in accordance with the order of possession. The levying officer shall not execute the order if the respondent has filed a bond pursuant to section 2737.11 of the Revised Code. In addition to the service of the order of possession required by section 2737.08 or 2737.19 of the Revised Code, the levying officer, at the time he takes possession of the property, shall deliver a copy of the order to the respondent, or if he is unable to find the respondent, shall leave a copy at the address where the property was detained.

Effective Date: 08-26-1982

2737.10 Filing of bond before order of possession is effective.

An order of possession issued by a court shall not be effective until the movant files with the court a bond to the respondent, executed by the movant's surety, in an amount twice the approximate value of the property described in the order, to the effect that, should judgment be issued against the movant, the movant will return the property taken or pay the value so assessed, at the election of the respondent, and also pay the damages suffered by the respondent as a result of the taking and detention of, and any injury to, the property and the costs of the action.

In lieu of the bond, the movant may deposit with the clerk of the court cash in an amount equal to twice the approximate value of the property.

If the movant is indigent, the court may, on motion of the movant or on its own motion, waive the bond required by this section, or may set the bond in a lower amount, as fairness requires.

Effective Date: 03-13-1986

2737.11 Recovery of property by filing bond or cash deposit.

The respondent may recover property taken pursuant to an order of possession of which the property is the subject by filing with the court a bond to the movant, executed by the respondent's surety in the same amount as the bond filed by the movant pursuant to section 2737.10 of the Revised Code, to the effect that, if judgment is issued against the respondent, the respondent will return the property detained or pay the value assessed, at the election of the movant, and will also pay the damages suffered by the movant as a result of the detention of and any injury to the property, and the costs of the action. If the movant has not filed a bond, the amount of the respondent's bond shall be twice the approximate value of the property as stated in the affidavit filed pursuant to section 2737.03 of the Revised Code. If an order of possession has been issued by the court, the respondent also shall provide the levying officer with a copy of the bond.

In lieu of the bond, the respondent may deposit with the clerk of the court cash in an amount equal to the approximate value of the property.

If the respondent is indigent, the court may, on motion of the respondent or on its own motion, waive the bond required by this section or set the bond in a lower amount, as fairness requires.

Effective Date: 03-13-1986

2737.12 Objections to sureties.

The movant or the respondent may object to the surety of the other by filing with the court within ten days after the filing of the surety's bond an exception to the sufficiency of the surety. All objections to sureties are otherwise waived. When an exception to a surety is made, that surety shall show to the court that it is sufficient to fulfill the obligations of its bond. After an exception has been made, the levying officer may execute the order of possession in accordance with section 2737.09 of the Revised Code, but shall not take any further action until the surety is found by the court to be sufficient or is replaced by sufficient surety.

Effective Date: 08-26-1982

2737.13 Duty of levying officer after taking possession of property pursuant to order of possession.

After the levying officer takes possession of property pursuant to an order of possession, and until the property is delivered to the movant, he shall keep the property in a secure place. If removal of the property from the address where it is detained would be unreasonably expensive, the levying officer may take possession by conspicuously placing a notice of possession on the property. The court may order a sale of the property if, because of its perishable nature or the existence of circumstances that would diminish its value, a sale would be for the benefit of the parties. The sale may be made in the manner and on the terms the court directs. The proceeds of the sale shall be deposited with the court until the entry of final judgment or dismissal of the action, which entry shall include an order for delivery of the proceeds of the sale to the successful party. The costs to the levying officer of taking possession, storing, or selling the property shall be taxed as costs in the action.

Effective Date: 08-26-1982

2737.14 Final judgment to award permanent possession.

In an action to recover possession of personal property in which an order of possession has been issued, the final judgment shall award permanent possession of the property and any damages to the party obtaining the award to the extent the damages proximately resulted from the taking, withholding, or detention of the property by the other, and the costs of the action. If delivery of the property cannot be made, the action may proceed as a claim for conversion upon due notice being given the respondent of the date, time, place, and purpose of the hearing upon such claim.

Effective Date: 08-26-1982

2737.15 Proceedings when movant fails to prosecute to final judgment.

When a movant obtains possession of property pursuant to this chapter, but fails to prosecute the action to final judgment, on application of the respondent, the court may order the return of the property and shall assess the damages caused the respondent by deprivation of the possession of the property, the amount of which, with costs of the action, shall be awarded to the respondent by judgment of the court.

Effective Date: 08-26-1982

2737.16 Order of possession directed to levying officer of county.

An order of possession may be directed to the levying officer of any county within this state.

Effective Date: 08-26-1982

2737.17 Officer may use any lawful means to enter any building or enclosure.

Unless the order of possession directed to the levying officer specifies otherwise, the levying officer, in the execution of the order, may use any lawful means to enter any building or enclosure, other than an occupied dwelling unit, in which the property described in the order, or any part of it, is contained, if reasonable efforts to obtain voluntary admittance have failed. If the officer enters the building or enclosure to take possession of the property described in the order without first obtaining permission to enter, he shall file with the court on the next business day an affidavit setting forth the circumstances of his entry and the reasons he was unable to obtain voluntary admittance.

Effective Date: 08-26-1982

2737.18 Action on bond.

A party may seek recovery of damages awarded pursuant to section 2737.14 of the Revised Code and the costs of judgment execution against the other party's surety on a bond filed pursuant to section 2737.10 or 2737.11 of the Revised Code if execution of judgment issued in favor of that party is returned unsatisfied, by the filing of a complaint against the surety in the same action in which the bond was filed.

Effective Date: 08-26-1982

2737.19 Issuing order of possession without notice or hearing.

(A) Upon the filing of a motion for an order of possession, the court may issue an order of possession without issuing notice to the respondent and without conducting a hearing if the court finds that there is probable cause to support the motion and that the movant will suffer irreparable injury if the order is delayed until the respondent has been given the opportunity for a hearing. The court's findings shall be based upon the motion and affidavit filed pursuant to section 2737.03 of the Revised Code and any other relevant evidence that it may wish to consider.

(B) A finding by the court that the movant will suffer irreparable injury may be made only if the court finds the existence of either of the following circumstances:

(1) There is present danger that the property will be immediately disposed of, concealed, or placed beyond the jurisdiction of the court;

(2) The value of the property will be impaired substantially if the issuance of an order of possession is delayed.

(C)

(1) Upon the issuance by a court of an order of possession without notice and hearing pursuant to this section, the movant shall file the order with the clerk of the court, together with a praecipe instructing the clerk to issue to the respondent a copy of the motion, affidavit, and order of possession, and a notice that an order of possession was issued and that the respondent has a right to a hearing on the matter. The clerk then immediately shall serve upon the respondent, in the manner provided by the Rules of Civil Procedure for service of process, a copy of the complaint and summons, if not previously served, a copy of the motion, affidavit, and order of replevin, and the following notice:

"(Name and Address of Court)

(Case Caption) Case No.________________________

NOTICE

You are hereby notified that this court has issued an order in the above case in favor of (name and address of movant), the movant in this proceeding, directing that (describe property), now in your possession, be taken from you. This order was issued on the basis of the movant's claim against you as indicated in the documents that are enclosed with this notice.

If you dispute the movant's claim and believe that you are entitled to possession of the property, you may request a hearing before this court by disputing the claim in the request for hearing form, appearing below, or in a substantially similar form, and delivering the request for hearing to this court at the above address, at the office of the clerk of this court, no later than the end of the fifth business day after you receive this notice. You may state your reasons for disputing the claim in the space provided on the form; however, you are not required to do so. If you do state your reasons for disputing the claim, you are not prohibited from stating any other reasons at the hearing, and if you do not state your reasons, it will not be held against you by the court and you can state your reasons at the hearing. If you request a hearing, it will be held within three business days after delivery of your request for hearing and notice of the date, time, and place of the hearing will be sent to you.

You may avoid a hearing but recover and retain possession of the property until the entry of final judgment in the action by filing with the court, at the office of the clerk of this court, not later than the end of the fifth business day after you receive this notice, a bond executed by an acceptable surety in the amount of $____________________.

If you do not request a hearing or file a bond before the end of the fifth business day after you receive this notice, possession of the property will be withheld from you during the pendency of the action. Notice of the dates, times, places, and purposes of any subsequent hearings and of the date, time, and place of the trial of the action will be sent to you.

___________________________________

Clerk of Court

___________________________________

Date"

(2) Along with the notice required by division (C)(1) of this section, the clerk of the court also shall deliver to the respondent a request for hearing form together with a postage-paid, self-addressed envelope or a request for hearing form on a postage-paid, self-addressed postcard in substantially the following form:

"(Name and Address of Court)

Case Number__________________ Date_________________

REQUEST FOR HEARING

I dispute the claim for possession of property in the above case and request that a hearing in this matter be held within three business days after delivery of this request to the court.

I dispute the claim for the following reasons:

______________________________________________________________________________________

(Optional)

________________________________________________________________________________________

________________________________________________________________________________________

______________________________

(Name of Respondent)

______________________________

(Signature)

______________________________

(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 POSSESSION OF THE PROPERTY WILL BE WITHHELD FROM YOU DURING THE PENDENCY OF THE ACTION."

(D) The respondent may receive a hearing in accordance with section 2737.07 of the Revised Code by delivering a written request for hearing to the court within five business days after receipt of the notice provided pursuant to division (C) of this section. The request may set forth the respondent's reasons for disputing the movant's claim for possession of property. However, neither the respondent's inclusion of nor his failure to include such reasons upon the request constitutes a waiver of any defense or affects the respondent's right to produce any evidence at any hearing or at the trial of the action. If the request is made by the respondent, the court shall schedule a hearing within three business days after the request is made, send notice to the parties of the date, time, and place of the hearing, and hold the hearing accordingly.

(E) If, after hearing, the court finds that there is not probable cause to support the motion, it shall order that the property be redelivered to the respondent without the condition of bond.

Effective Date: 03-13-1986

2737.20 Injunctive relief.

In addition to, or in lieu of, any other relief available under sections 2737.01 to 2737.19 of the Revised Code, the court may grant a temporary restraining order, preliminary injunction, or permanent injunction in accordance with the Rules of Civil Procedure.

Effective Date: 08-26-1982

2727.21 to 2727.24 [Repealed].

Effective Date: 08-26-1982