78B-6-812. Order of restitution
-- Service -- Enforcement -- Disposition of personal property -- Hearing.
(1) Each order of restitution shall:
(a) direct the defendant to vacate the premises,
remove his personal property, and restore possession of the premises to the
plaintiff, or be forcibly removed by a sheriff or constable;
(b) advise the defendant of the time limit set by the
court for the defendant to vacate the premises, which shall be three calendar
days following service of the order, unless the court determines that a longer
or shorter period is appropriate under the circumstances; and
(c) advise the defendant of the defendant's right to a
hearing to contest the manner of its enforcement.
(2) (a) A copy of the order of restitution and a form for
the defendant to request a hearing as listed on the form shall be served in
accordance with Section 78B-6-805 by
a person authorized to serve process pursuant to Subsection 78B-8-302(1).
If personal service is impossible or impracticable, service may be made by:
(i)
mailing a copy of the order and the form to the defendant's last-known address
and posting a copy of the order and the form at a conspicuous place on the
premises; or
(ii)
mailing a copy of the order and the form to the commercial tenant defendant's
last-known place of business and posting a copy of the order and the form at a
conspicuous place on the business premises.
(b) A request for hearing by the defendant may not
stay enforcement of the restitution order unless:
(i) the
defendant furnishes a corporate bond, cash bond, certified funds, or a property
bond to the clerk of the court in an amount approved by the court according to
the formula set forth in Subsection 78B-6-808(4)(b);
and
(ii) the
court orders that the restitution order be stayed.
(c) The date of service, the name, title, signature,
and telephone number of the person serving the order and the form shall be
legibly endorsed on the copy of the order and the form served on the defendant.
(d) The person serving the order and the form shall
file proof of service in accordance with Rule 4(e), Utah Rules of Civil
Procedure.
(3) (a) If the defendant fails to comply with the order
within the time prescribed by the court, a sheriff or constable at the
plaintiff's direction may enter the premises by force using the least
destructive means possible to remove the defendant.
(b) Any personal property of the defendant may be
removed from the premises by the sheriff or constable and transported to a
suitable location for safe storage. The sheriff or constable may delegate
responsibility for storage to the plaintiff, who shall store the personal
property in a suitable place and in a reasonable manner.
(c) The personal property removed and stored shall be
inventoried by the sheriff or constable or the plaintiff who shall keep the
original inventory and personally deliver or mail the defendant a copy of the
inventory immediately after the personal property is removed.
(4) (a) After demand made by the defendant within 30 days of
removal of personal property from the premises, the sheriff or constable or the
plaintiff shall promptly return all of the defendant's personal property upon
payment of the reasonable costs incurred for its removal and storage.
(b) The person storing the personal property
may sell the property remaining in storage at a public sale if:
(i) the
defendant does not request a hearing or demand return of the personal property
within 30 days of its removal from the premises; or
(ii) the
defendant fails to pay the reasonable costs incurred for the removal and
storage of the personal property.
(c) In advance of the sale, the person storing the
personal property shall mail to the defendant's last-known address a written
notice of the time and place of the sale.
(d) If the defendant is present at the sale, he may
specify the order in which the personal property shall be sold, and only so
much personal property shall be sold as to satisfy the costs of removal,
storage, advertising, and conducting the sale. The remainder of the personal
property, if any, shall be released to the defendant. If the defendant is not
present at the sale, the proceeds, after deduction of the costs of removal,
storage, advertising, and conducting the sale shall be paid to the plaintiff up
to the amount of any judgment the plaintiff obtained against the defendant. Any
surplus shall be paid to the defendant, if the defendant's whereabouts are
known. If the defendant's whereabouts are not known, any surplus shall be
disposed of in accordance with Title 67, Chapter 4a, Unclaimed Property Act.
(e) The plaintiff may donate the property to charity
if:
(i) the
defendant does not request a hearing or demand return of the personal property
within 30 days of its removal from the premises; or
(ii) the
defendant fails to pay the reasonable costs incurred for the removal and
storage of the personal property; and
(iii) the
donation is a commercially reasonable alternative.
(f) If the property belonging to a person who is not a
defendant is removed and stored in accordance with this section, that person
may claim the property by delivering a written demand for its release to the
sheriff or constable or the plaintiff. If the claimant provides proper
identification and evidence of ownership, the sheriff or constable or the
plaintiff shall promptly release the property at no cost to the claimant.
(5) In the event of a dispute concerning the manner of enforcement
of the restitution order, the defendant or any person claiming to own stored
personal property may file a request for a hearing. The court shall set the
matter for hearing within 10 calendar days from the filing of the request, or
as soon thereafter as practicable, and shall mail notice of the hearing to the
parties.
(6) The Judicial Council shall draft the forms necessary to
implement this section.
Renumbered and Amended by Chapter 3, 2008 General Session