Opinion
March 7, 2000.
Order Entered March 7, 2000:
On order of the Court, this is to advise that the Court is considering a new Rule 3.106 and amendment of Rule 2.401 of the Michigan Court Rules. Before determining whether the proposals should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposals. We welcome the views of all who wish to address the proposals or who wish to suggest alternatives. Before adoption or rejection, these proposals will be considered at a public hearing by the Court. The Clerk of the Court will publish a schedule of future public hearings.
As whenever this Court publishes an administrative proposal for comment, we emphasize that publication of these proposals does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposals in their present form.
[The following language would be added:]
RULE 3.106. PROCEDURES REGARDING THE SEIZURE OF PROPERTY (WRITS OF EXECUTION) AND EVICTIONS (WRITS OF RESTITUTION). (A) Scope of Rule. This role applies to writs of execution and orders of eviction. (B) Court Officers. Persons who may seize property are those persons named in MCR 2.103(B), and they are referred to in this rule as court officers. For the purpose of acts contemplated by this rule, court officers shall be deemed independent contractors unless a local administrative order provides otherwise. (C) Qualifications of Court Officers. Court officers, except those whose qualifications are set by statute, shall be appointed for a term not to exceed 2 years. (1) Court officers shall be appointed by the chief judge. Two or more chief judges may jointly appoint court officers for their respective courts. In district courts having multiple divisions, court officers shall be appointed by the presiding judge of each division. (2) The State Court Administrative Office shall develop a procedure for the appointment and supervision of court officers, including a model application form. Considerations shall include, but are not limited to, an applicant's character, experience, and references. (3) The appointing court must maintain a copy of each application, provide the State Court Administrative Office with a list of those persons who are appointed as court officers, and notify the State Court Administrative Office of subsequent changes. (4) As a condition of appointment, a court officer shall (a) post a surety bond pursuant to MCR 8.204 ,
(b) obtain court approval of the employees and contractors who assist the court officer in the seizure of property or evictions, and (c) provide the names and addresses of all financial institutions in which the court officer deposits funds obtained under this rule, and the respective account numbers. (5) A court may limit service of writs of execution and orders of eviction to court officers appointed by the court. (D) Forms. The State Court Administrator shall publish forms approved for use with regard to the procedures described in this role. (E) Procedures Regarding the Issuance and Service of Writs of Execution. (1) Writs of execution shall be issued pursuant to statute and shall be endorsed by the court officer upon receipt. (2) No funds may be collected pursuant to a writ prior to service. (3) A court, in its discretion, may limit the hours in which property may be seized. (F) Procedures Regarding Collection. (1) A court officer shall carry and display identification issued by the court. (2) A copy of the writ shall be served on the defendant or the defendant's agent, or left or posted on the premises in a conspicuous place. (3) A court officer shall prepare an inventory and receipt, upon seizure of property or payment of funds. (a) The original shall be flied with the court, within 7 days of the seizure or payment. (b) A copy shall be (i) provided to the plaintiff,
(ii) provided to the defendant or the defendant's agent, or posted on the premises in a conspicuous place, and (iii) retained by the court officer. (G) Disposition of Property and Money; Costs; Fees.
(1) Property seized shall be disposed of according to law.(2) Money received by a court officer that is owed a plaintiff shall be paid to the court within 21 days of receipt or deposited in the court officer's trust account for payment to the plaintiff. (3) Costs allowed by statute shall be paid according to law. (a) A court officer shall retain copies of all bills for service required in pursuit of the execution of a writ of restitution. (b) Fees allowed by statute shall be paid to a court officer in proportion to the amount collected. (c) A court officer shall receive no payment except as provided by law. (H) Procedures Following Expiration of Writ of Execution. (1) Within 14 days of the expiration of the writ, the court officer shall file with the court and provide to the plaintiff (a) a report summarizing collection activities, including an accounting of all money or property collected,
(b) a report that collection activities will continue pursuant to statute, or (c) a report that no collection activity occurred.
[The present language would be amended as indicated below:]
RULE 4.201. SUMMARY PROCEEDINGS TO RECOVER POSSESSION OF PREMISES.
(A)-(K) [Unchanged.]
(L) Writ of Restitution
(1) [Unchanged.]
(2) Issuance of Order of Eviction and Delivery of Order to a Court Officer. Subject to the provisions of subrule (L)(4), the order of eviction shall be delivered to the court officer for service within 7 days after the order is filed.
(2 3) Issuance Immediately on Judgment. The court may issue a writ immediately on entering judgment if
(a) the court is convinced the statutory requirements are satisfied, and
(b) the defendant was given notice, before the judgment, of a request for immediate issuance of the writ.
The court may condition the writ to protect the defendant's interest.
(3 4) Limitations on Time for Issuance and Execution. Unless a hearing is held after the defendant has been given notice and an opportunity to appear, a writ of restitution may not
(a) be issued later than 56 days after judgment is entered,
(b) be executed later than 56 days after it is issued.
(4 5) Acceptance of Partial Payment. A writ of restitution may not be issued if any part of the amount due under the judgment has been paid, unless
(a) a hearing is held after the defendant has been given notice and an opportunity to appear, or
(b) the judgment provides that acceptance of partial payment of the amount due under the judgment will not prevent issuance of a writ of restitution.
(M) Postjudgment Motions. Except as provided in MCR 2.612, a postjudgment motion must be filed no later than 10 days after judgment enters.
(1) If the motion challenges a judgment for possession, it must be shall not be scheduled for hearing and the order of eviction shall not be stayed unless the motion is accompanied by an escrow deposit of 1 month's rentto stay the writ of restitution . ; if (2) If the judgment does not include an award of possession, the filing of the motion stays proceedings, but the plaintiff may move for an order requiring a bond to secure the stay. If the initial escrow deposit is believed inadequate, the plaintiff may apply for continuing adequate escrow payments in accord with subrule (H)(2). The filing of a postjudgment motion together with a bond, bond order, or escrow deposit stays all proceedings, including a writ of restitution issued but not executed.
(N) [Unchanged.]
(O) Objections to Fees Covered by Statute for Writs of Restitution. Objections shall be by motion. The fee to be paid shall be reasonable in light of all the circumstances. In determining the reasonableness of a fee, the court shall consider all issues bearing on reasonableness, including but not limited to (1) the time of travel to the premises,
(2) the time necessary to execute the writ,
(3) the amount and weight of the personal property removed from the premises,
(4) who removed the personal property from the premises. (5) the distance that the personal property was moved from the premises, and (6) the actual expenses incurred in executing the writ. Staff Comment: The proposed addition of MCR 3.106 has been recommended by a committee consisting of judges, court administrators, court clerks, attorneys, and court officers. The rule attempts to incorporate existing practice while protecting against abuses. The proposed amendments of MCR 4.201 would effect changes consistent with newly proposed MCR 3.106.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk by July 1, 2000. When filing a comment, please refer to our file No. 99-25.