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H.B. 143





Sponsor: John E. Swallow

9    This act affects sections of Utah Code Annotated 1953 as follows:
10    AMENDS:
11         78-36-10.5, as last amended by Chapter 79, Laws of Utah 1996
12    Be it enacted by the Legislature of the state of Utah:
13        Section 1. Section 78-36-10.5 is amended to read:
14         78-36-10.5. Order of restitution -- Service -- Enforcement -- Disposition of personal
15     property -- Hearing.
16        (1) Each order of restitution shall:
17        (a) direct the defendant to vacate the premises, remove his personal property, and restore
18    possession of the premises to the plaintiff, or be forcibly removed by a sheriff or constable;
19        (b) advise the defendant of the time limit set by the court for the defendant to vacate the
20    premises, which shall be three business days following service of the order, unless the court
21    determines that a longer or shorter period is appropriate under the circumstances; and
22        (c) advise the defendant of his right to a hearing to contest [the terms of the order of
23    restitution or] the manner of its enforcement.
24        (2) (a) A copy of the order of restitution and a form for the defendant to request a hearing
25    shall be served personally upon the defendant in accordance with Rule 4, Utah Rules of Civil
26    Procedure, by a person authorized to serve process pursuant to Section 78-27-58. If personal
27    service is impossible or impracticable, service may be made by mailing a copy of the order and

1    the form to the defendant's last-known address and posting a copy of the order and the form at a
2    conspicuous place on the premises.
3        (b) The date of service, the name, title, signature, and telephone number of the person
4    serving the order and the form shall be legibly endorsed on the copy of the order and the form
5    served on the defendant.
6        (c) Within ten days of service, the person serving the order and the form shall file proof
7    of service in accordance with Rule 4(h), Utah Rules of Civil Procedure.
8        (3) (a) If the defendant fails to comply with the order within the time prescribed by the
9    court, a sheriff or constable at the plaintiff's direction may enter the premises by force using the
10    least destructive means possible to remove the defendant.
11        (b) Any personal property of the defendant may be removed from the premises by the
12    sheriff or constable and transported to a suitable location for safe storage. The sheriff or constable,
13    with the plaintiff's consent, may delegate responsibility for storage to the plaintiff, who must store
14    the personal property in a suitable place and in a reasonable manner.
15        (c) The personal property removed and stored shall be inventoried by the sheriff or
16    constable who shall keep the original inventory and personally deliver or mail the defendant a copy
17    of the inventory immediately after the personal property is removed.
18        (4) (a) After demand made by the defendant within 30 days of removal of personal
19    property from the premises, the sheriff or constable shall promptly return all of the defendant's
20    personal property upon payment of the reasonable costs incurred for its removal and storage.
21        (b) The person storing the personal property may sell the property remaining in storage
22    at a public sale if:
23        (i) the defendant does not request a hearing or demand return of the personal property
24    within 30 days of its removal from the premises; or
25        (ii) the defendant fails to pay the reasonable costs incurred for the removal and storage of
26    the personal property.
27        (c) In advance of the sale, the person storing the personal property shall mail to the
28    defendant's last-known address a written notice of the time and place of the sale.
29        (d) If the defendant is present at the sale, he may specify the order in which the personal
30    property shall be sold, and only so much personal property shall be sold as to satisfy the costs of
31    removal, storage, advertising, and conducting the sale. The remainder of the personal property,

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1    if any, shall be released to the defendant. If the defendant is not present at the sale, the proceeds,
2    after deduction of the costs of removal, storage, advertising, and conducting the sale shall be paid
3    to the plaintiff up to the amount of any judgment the plaintiff obtained against the defendant. Any
4    surplus shall be paid to the defendant, if the defendant's whereabouts are known. If the defendant's
5    whereabouts are not known, any surplus shall be disposed of in accordance with Title 67, Chapter
6    4a, Unclaimed Property Act.
7        (e) If the property belonging to a person who is not a defendant is removed and stored in
8    accordance with this section, that person may claim the property by delivering a written demand
9    for its release to the sheriff or constable. If the claimant provides proper identification and
10    evidence of ownership, the sheriff or constable shall promptly release the property at no cost to
11    the claimant.
12        (5) In the event of a dispute concerning [the terms of the order of restitution or] the manner
13    of [its] the order's enforcement, the defendant or any person claiming to own stored personal
14    property may file a request for a hearing. The court shall set the matter for hearing within ten days
15    from the filing of the request, or as soon thereafter as practicable, and shall mail notice of the
16    hearing to the parties.
17        (6) The Judicial Council shall draft the forms necessary to implement this section.

Legislative Review Note
    as of 1-27-97 4:59 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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