§ Rule 88. Procedure for Claiming Delivery of Personal Property
Rule 88. Procedure for Claiming Delivery of Personal Property
(a) Prejudgment Delivery of Personal Property to Plaintiff; Availability. When the plaintiff has commenced a civil action to recover possession of personal property, the plaintiff may make application to the court to have the property delivered to the plaintiff. The court may order the prejudgment seizure of the property in accordance with the provisions of this rule.
(b) Motion and Affidavit for Delivery. The plaintiff shall file a motion with the court requesting the delivery of personal property, together with an affidavit showing:
(1) A particular description of the property claimed, and if the property claimed is a portion of divisible property of uniform kind, quality and value, that such is the case, and the amount thereof which the plaintiff claims; and
(2) That the plaintiff is the owner of the property or lawfully entitled to its possession, and the facts and circumstances relating thereto; and
(3) The value of the property claimed; and if more than one article is claimed, the current value of each article; and
(4) That the property is in the possession of the defendant, and the facts and circumstances relating to such possession according to the plaintiff's best knowledge or belief; and
(5) That the prejudgment seizure is not sought and the action is not prosecuted to hinder, delay or defraud any other creditor of the defendant; and
(6) That the plaintiff has no information or belief that the defendant has filed any proceeding under the National Bankruptcy Act or has made a general assignment for the benefit of creditors, or, if any such proceeding has been terminated, that the claim of the plaintiff was not discharged in such proceeding.
The plaintiff or the plaintiff's attorney shall endorse in writing upon the motion attached to the affidavit a request that the property claimed be taken by a peace officer from the defendant and be delivered to the plaintiff.
(c) Notice of Motion; Pre-Seizure Hearing. Except as section (j) provides, the court may order prejudgment delivery of personal property to the plaintiff only after:
(1) The defendant is served with notice of the motion and a copy of the affidavit; and
(2) The defendant is given an opportunity for a judicial hearing to determine the necessity of and justification for the prejudgment seizure of the property. The hearing shall be held not less than three (3), nor more than seven (7) business days (exclusive of Saturdays, Sundays, and legal holidays) after the service of the notice of motion upon the defendant.
(3) The hearing shall be held before the court on the day specified and shall take precedence over all other matters not of a similar nature pending on that day. If the defendant does not appear at the hearing, in person or by counsel, the court, without taking further evidence, shall immediately order the prejudgment seizure of the property. The hearing shall be conducted in conformity with Civil Rule 77, except where the provisions of Rule 77 conflict with the specific requirements of the instant rule, in which case, the requirements of the instant rule shall control.
(d) Hearing; Burden of Proof. At the hearing the court shall require the plaintiff to establish by a preponderance of the evidence the probable validity of the plaintiff's claim to the property and the absence of any reasonable probability that a successful defense can be asserted by the defendant.
(e) Issuance of Order; Seizure. If at the hearing the court finds that the plaintiff has met the burden of proof as set forth in paragraph (d) of this rule, the court shall issue an order prescribing the written undertaking, with sufficient sureties, to be provided by the plaintiff and directing a peace officer to seize and take into custody the property described in the affidavit upon the furnishing of the undertaking by the plaintiff.
(f) New or Additional Undertaking. The court at any time may require the giving of a new or additional undertaking to protect the interest of the defendant, the peace officer, or any party who intervenes, if good reason is shown that a new or additional bond is necessary.
(g) Sureties on Undertaking. The qualifications of sureties and their justification shall be as prescribed by these rules.
(h) Return by Peace Officer. The peace officer shall file a return with the court promptly and in any event within 20 days after the taking of the property from the defendant. Such return shall contain an inventory of the property taken, a statement of the claims, if any, by persons other than the plaintiff, and the name of the person to whom the property has been delivered. If the property is not taken, the peace officer shall promptly make a return to the court stating the fact and giving the reasons therefor.
(i) Defendant's Security. No order for prejudgment seizure of personal property may issue, or the peace officer shall redeliver to the defendant any property seized pursuant to the hearing, when the defendant provides a written undertaking with sufficient sureties as ordered by the court. The court may take into account a defendant's indigency, and may, in its discretion, permit the defendant to establish security by means other than the posting of bonds or the provision of a written undertaking. Such alternative means may include an installment payment arrangement or any other mechanism which the court deems just.
(j) Ex Parte Prejudgment Delivery of Personal Property. The court may issue a prejudgment order for delivery of personal property in an ex parte proceeding upon the plaintiff's motion, affidavit, and undertaking only in the following extraordinary situations:
(1) Imminence of Defendant Concealing, Destroying or Conveying the Property. The court may issue an ex parte order for delivery if the plaintiff establishes the probable validity of the plaintiff's claim for possession of the property, and if the plaintiff states in the affidavit specific facts sufficient to support a judicial finding of one of the following circumstances:
(i) The defendant is concealing, or about to conceal, the property; or
(ii) The defendant is about to destroy the property; or
(iii) The defendant is causing, or about to cause, the property to be removed beyond the limits of the state; or
(iv) The defendant is about to convey or encumber the property; or
(v) The defendant is otherwise disposing, or about to dispose, of the property in a manner so as to defraud the defendant's creditors, including the plaintiff.
(2) Defendant's Waiver of Right to Pre-Seizure Hearing. The court may issue an ex parte order for delivery if the plaintiff establishes the probable validity of the plaintiff's claim for possession of the property, and if the plaintiff accompanies the affidavit and motion with a document signed by the defendant voluntarily, knowingly and intelligently waiving the defendant's constitutional right to a hearing before prejudgment seizure of the property.
(3) The Government as Plaintiff. The court may issue an ex parte order for delivery when the possessory action and claim for delivery is brought by a government agency (state or federal), provided the government-plaintiff demonstrates that an ex parte seizure is necessary to protect an important governmental or general public interest.
(k) Execution, Duration, and Vacation of Ex Parte Orders. When the peace officer executes an ex parte delivery order, the peace officer shall at the same time serve on the defendant copies of the plaintiff's affidavit, motion and undertaking, and the order. No ex parte order shall be valid for more than seven (7) business days (exclusive of Saturdays, Sundays, and legal holidays), unless the defendant waives the right to a pre-seizure hearing in accordance with subsection (j)(2) of this rule, or unless the defendant consents in writing to an additional extension of time for the duration of the ex parte order. The defendant may at any time after service of the order request an emergency hearing at which the defendant may refute the special need for the seizure and the validity of the plaintiff's claim for possession of the property.
(l) Duration and Vacation of Prejudgment Seizure Orders Issued Pursuant to Hearing. A prejudgment seizure order issued pursuant to a hearing provided for in section (c) of this rule shall unless sooner released or discharged, cease to be of any force or effect and the property seized shall be released from the operation of the order at the expiration of six (6) months from the date of the issuance of the order, unless a notice of readiness for trial is filed or a judgment is entered against the defendant in the action in which the order was issued, in which case the order shall continue in effect until released or vacated after judgment as provided in these rules. However, upon motion of the plaintiff, made not less than ten (10) nor more than sixty (60) days before the expiration of such period of six (6) months, and upon notice of not less than five (5) days to the defendant, the court in which the action is pending may, by order filed prior to the expiration of the period, extend the duration of the order for an additional period or periods as the court may direct, if the court is satisfied that the failure to file the notice of readiness is due to the dilatoriness of the defendant and was not caused by any action of the plaintiff. The order may be extended from time to time in the manner herein prescribed.