78B-6-808 - Possession bond of plaintiff -- Alternative remedies.
78B-6-808. Possession bond of plaintiff -- Alternative remedies.
(1) At any time between the filing of the complaint and the entry of final judgment, theplaintiff may execute and file a possession bond. The bond may be in the form of a corporatebond, a cash bond, certified funds, or a property bond executed by two persons who own realproperty in the state and who are not parties to the action.
(2) The court shall approve the bond in an amount which is the probable amount of costsof suit and damages which may result to the defendant if the suit has been improperly instituted. The bond shall be payable to the clerk of the court for the benefit of the defendant for all costsand damages actually adjudged against the plaintiff.
(3) The plaintiff shall notify the defendant of the possession bond. This notice shall beserved in the same manner as service of summons and shall inform the defendant of all of thealternative remedies and procedures under Subsection (4).
(4) The following are alternative remedies and procedures applicable to an action if theplaintiff files a possession bond under Subsections (1) through (3):
(a) With respect to an unlawful detainer action based solely upon nonpayment of rent orother amounts due, the existing contract shall remain in force and the complaint shall bedismissed if the defendant, within three calendar days of the service of the notice of thepossession bond, pays accrued rent, all other amounts due, and other costs, including attorneyfees, as provided in the rental agreement.
(b) (i) The defendant may remain in possession if he executes and files a counter bond inthe form of a corporate bond, a cash bond, certified funds, or a property bond executed by twopersons who own real property in the state and who are not parties to the action.
(ii) The form of the bond is at the defendant's option.
(iii) The bond shall be payable to the clerk of the court.
(iv) The defendant shall file the bond prior to the later of the expiration of three businessdays from the date he is served with notice of the filing of plaintiff's possession bond or within24 hours after the court sets the bond amount.
(v) Notwithstanding Subsection (4)(b)(iv), the court may allow a period of up to 72 hoursfor the posting of the counter bond.
(vi) The court shall approve the bond in an amount which is the probable amount of costsof suit, including attorney fees and actual damages which may result to the plaintiff if thedefendant has improperly withheld possession.
(vii) The court shall consider prepaid rent to the owner as a portion of the defendant'stotal bond.
(c) If the defendant demands, within three days of being served with notice of the filingof plaintiff's possession bond, the defendant shall be granted a hearing within three days of thedefendant's demand.
(5) If the defendant does not elect and comply with a remedy under Subsection (4) withinthe required time, the plaintiff, upon ex parte motion, shall be granted an order of restitution. Aconstable or the sheriff of the county where the property is situated shall return possession of theproperty to the plaintiff promptly.
(6) If the defendant demands a hearing under Subsection (4)(c), and if the court rulesafter the hearing that the plaintiff is entitled to possession of the property, the constable or sheriffshall promptly return possession of the property to the plaintiff. If at the hearing the court allowsthe defendant to remain in possession and further issues remain to be adjudicated between the
parties, the court shall require the defendant to post a bond as required in Subsection (4)(b) andshall expedite all further proceedings, including beginning the trial no later than 30 days from theposting of the plaintiff's bond, unless the parties otherwise agree.
(7) If at the hearing the court rules that all issues between the parties can be adjudicatedwithout further court proceedings, the court shall, upon adjudicating those issues, enter judgmenton the merits.
Renumbered and Amended by Chapter 3, 2008 General Session