78B-6-812 - Order of restitution -- Service -- Enforcement -- Disposition of personal property -- Hearing.
78B-6-812. Order of restitution -- Service -- Enforcement -- Disposition of personalproperty -- Hearing.
(1) Each order of restitution shall:
(a) direct the defendant to vacate the premises, remove his personal property, and restorepossession 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 thepremises, which shall be three calendar days following service of the order, unless the courtdetermines 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 itsenforcement.
(2) (a) A copy of the order of restitution and a form for the defendant to request a hearingas listed on the form shall be served in accordance with Section 78B-6-805 by a personauthorized to serve process pursuant to Subsection 78B-8-302(1). If personal service isimpossible or impracticable, service may be made by:
(i) mailing a copy of the order and the form to the defendant's last-known address andposting 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'slast-known place of business and posting a copy of the order and the form at a conspicuous placeon the business premises.
(b) A request for hearing by the defendant may not stay enforcement of the restitutionorder unless:
(i) the defendant furnishes a corporate bond, cash bond, certified funds, or a propertybond to the clerk of the court in an amount approved by the court according to the formula setforth 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 personserving the order and the form shall be legibly endorsed on the copy of the order and the formserved on the defendant.
(d) The person serving the order and the form shall file proof of service in accordancewith Rule 4(e), Utah Rules of Civil Procedure.
(3) (a) If the defendant fails to comply with the order within the time prescribed by thecourt, a sheriff or constable at the plaintiff's direction may enter the premises by force using theleast destructive means possible to remove the defendant.
(b) Any personal property of the defendant may be removed from the premises by thesheriff or constable and transported to a suitable location for safe storage. The sheriff orconstable may delegate responsibility for storage to the plaintiff, who shall store the personalproperty in a suitable place and in a reasonable manner.
(c) The personal property removed and stored shall be inventoried by the sheriff orconstable or the plaintiff who shall keep the original inventory and personally deliver or mail thedefendant 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 personalproperty from the premises, the sheriff or constable or the plaintiff shall promptly return all of thedefendant's personal property upon payment of the reasonable costs incurred for its removal andstorage.
(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 propertywithin 30 days of its removal from the premises; or
(ii) the defendant fails to pay the reasonable costs incurred for the removal and storage ofthe personal property.
(c) In advance of the sale, the person storing the personal property shall mail to thedefendant'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 personalproperty shall be sold, and only so much personal property shall be sold as to satisfy the costs ofremoval, storage, advertising, and conducting the sale. The remainder of the personal property, ifany, 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 paidto 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 thedefendant's whereabouts are not known, any surplus shall be disposed of in accordance with Title67, 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 propertywithin 30 days of its removal from the premises; or
(ii) the defendant fails to pay the reasonable costs incurred for the removal and storage ofthe 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 inaccordance with this section, that person may claim the property by delivering a written demandfor its release to the sheriff or constable or the plaintiff. If the claimant provides properidentification and evidence of ownership, the sheriff or constable or the plaintiff shall promptlyrelease the property at no cost to the claimant.
(5) In the event of a dispute concerning the manner of enforcement of the restitutionorder, the defendant or any person claiming to own stored personal property may file a requestfor a hearing. The court shall set the matter for hearing within 10 calendar days from the filing ofthe 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