Rule 5 Forcible Entry And Detainer
Forcible Entry And Detainer
(A) Notice To Leave Premises (3-day Notice)
The language required by ORC §1923.04(A) to be printed or written in a conspicuous manner in the notice to leave the premises (“Notice”) will be presumed by this Court to be conspicuous where the printing or writing of that language is:
At least twice as large as all other printing or writing on the Notice; and
Printed or written in contrasting, bold-faced type or writing.
Other elements that may assist in meeting the requirement that the statutory language be conspicuous may include combinations of all capital letters, contrasting colors, borders or other such elements to be determined on a case-by-case basis.
The three (3) days required in §1923.04(A) shall not include weekends or legal holidays.
(B) Claims
For purposes of these rules, in a FED case, the eviction (claim for possession) is designated as the first cause of action (“First Cause”). In a FED where plaintiff/landlord is seeking money damages, the claim for money damages is designated as the second cause of action (“Second Cause”).
(C) Summons Service
In FED actions under ORC Chapter 1923, summons shall be issued in the form as specified in §1923.06(B) of the ORC and shall be served as in the Rules of Civil Procedure, except as set forth in subsection (3) therein. Service of summons shall be made at least seven (7) days before the hearing date.
The summons shall state the hearing date to be fourteen (14) days from the date of filing or as close thereafter as the Court’s docket permits unless plaintiff requests a later hearing date at the time of filing the complaint.
(D) Plaintiff shall request the Clerk to cause service of process for each defendant to be made by bailiff service and by ordinary mail service. If the plaintiff so requests, the Clerk shall also issue service by certified mail.
The bailiff shall attempt service at the premises that are the subject of the FED action by the following means:
The bailiff shall make service of process by locating the person to be served and tendering a copy of the summons and complaint to the person to be served (personal service) or shall leave a copy of the summons and complaint at the usual place of residence of the person to be served with some person of suitable age and discretion then residing therein (residence service).
If the bailiff is unable to effect personal or residence service, the bailiff shall post the summons and complaint in a conspicuous place at the subject premises.
The Clerk shall mail one (1) copy of the summons and complaint by ordinary mail, certificate of mailing, to the address(es) set forth in the caption of the complaint and to any address(es) set forth in written instructions. If requested, the Clerk shall mail by certified mail, return receipt requested, a copy of the summons, complaint, document, or other process to be served to the address set forth in the caption of the summons and to any address(es) set forth in any written instructions furnished to the Clerk. The Clerk shall instruct the post office to return the certified mail within ten (10) days of mailing.
Service of process shall be deemed complete on the date that either of the following has occurred:
Service is made pursuant to section (D)(1)(a) of this Rule.
Both ordinary mail service under section (D)(2) and service by posting pursuant
to section (D)(1)(b) have been made.
For service performed pursuant to certified mailing as described in this rule, on
the date of mailing, if on the date of the hearing either of the following applies:
The certified mail has not been returned for any reason other than refused or unclaimed.
The certified mail has not been endorsed, and the ordinary mail has not been returned.
(E) Return of service of summons shall be made at least three (3) court days before the hearing date. If service has not been completed and return made as provided herein, the plaintiff shall request that alias service be made, and the new summons shall state the hearing date as in (A)(2) above.
(F) The plaintiff shall furnish the Clerk with one (1) original and two (2) copies of the complaint for each defendant, unless the plaintiff requests service by certified mail in which case the plaintiff must furnish the Clerk with an additional copy of the complaint for each defendant. The plaintiff shall staple to each original and to all service copies of the complaint any exhibits required to be attached to the pleading pursuant to Civ. R. 10(D). The Clerk may refuse to accept any pleadings that do not conform to this section.
(G) A demand for trial by jury under §1923.10 of the ORC shall be filed no later than three (3) court days before the hearing date. Non-jury cases will be heard by the housing magistrate. No continuance shall be granted longer than eight (8) days but for good cause and only in accordance with §1923.08 of the ORC. At the time of hearing, both the plaintiff and plaintiff’s attorney, if plaintiff is represented, shall be present in court or the case may be dismissed.
(H) If defendant fails to appear at a First Cause FED hearing, no default judgment on the First Cause of action shall be ordered unless testimony is taken from the plaintiff or witness having personal knowledge regarding the proper form and service of the 3-day Notice upon the defendant and regarding the grounds for the request for restitution of premises.
(I) Where a Second Cause of action in a FED has been filed alleging money damages the answer date on the Second Cause shall be twenty-eight (28) days from completed service of the complaint absent court order. In cases where defendant files an answer, the case will be set for trial before the housing judge.
(J) If the defendant fails to appear or otherwise defend the Second Cause of action, default judgment may be entered upon oral or written motion when judgment is accompanied by an affidavit with supporting documentation signed by a party with actual knowledge verifying that the amount is accurate. If the party against whom judgment by default is sought has appeared or otherwise defended in the action, he or his counsel shall be served with written notice of the application for judgment at least seven (7) days prior to the hearing on such application. Cases will be set for an assessment of damages hearing by the Court Services Commissioner before the Housing Court magistrate.
(K) In FED cases based upon failure to pay rent where a counterclaim has been filed, the defendant shall be entitled to a single trial consolidating all claims in accordance with ORC §1923.061(B). The consolidated trial shall be set four (4) weeks after the initial hearing date or as close thereto as the Court’s docket permits unless a later date is consented to by plaintiff or as determined by the magistrate. The magistrate may require the defendant to deposit rent during the pendency of the action.
(L) Enforcement Of First Cause Judgment: Writs And Move-outs
If judgment is for plaintiff on the First Cause (possession), unless otherwise ordered by the Court, the plaintiff may immediately purchase a writ of restitution.
If a defendant files objections to the magistrate's decision, the writ of restitution shall be stayed until the Court enters an opinion on the objections in favor of the plaintiff.
Writs must be timely purchased. Timely purchase is determined according to the
following;
Within thirty (30) days of the date of the judgment.
Where the judgment is more than thirty (30) days old but less than one (1) year old, plaintiff must file a motion for leave to purchase a writ and serve a copy of the motion on the defendant(s). The Court may schedule a hearing on the motion or decide the motion on the filings of the parties. Upon the granting of the motion, plaintiff may purchase a writ.
Plaintiffs may not purchase a writ, or schedule a move-out, on judgments granted more than one (1) year prior to the date of purchasing the writ.
Scheduling The Move-out
In order to arrange for the physical removal of the defendant and their belongings, the following must occur:
Landlord must purchase a writ of restitution from the Clerk’s Office;
The Clerk’s Office should deliver the writ to the Civil Bailiff Department within one (1) to four (4) business days unless a stay has been granted by the Housing Court judge.
Once the writ is received, the Bailiff’s Office will notify the landlord and tenant, by mail or email, that the tenant has four (4) calendar days to vacate the premises.
If the four (4) calendar days expire and the tenant has not moved, it is the landlord’s responsibility to call the Civil Bailiff Department to schedule a set-out/lock-out date.
(M) Manufactured Home Title Transfer
Prior to filing the request for a writ under ORC §1923.13(B), the plaintiff shall conduct a search of the public records that relate to the home or vehicle, and make reasonably diligent inquiries for the purpose of identifying any persons who have an outstanding right, title, or interest in the home or vehicle.
Request For Writ
If plaintiff seeks a writ pursuant to ORC §1923.13(B), plaintiff must file a request for a writ of execution with the Clerk. The request shall be in the form of a motion.
If the public records search described in 6.112(A) has revealed any person(s) who has an outstanding right, title, or interest in the home or vehicle, the plaintiff shall list that person’s name and the person’s last known address on the
request for the writ of execution.
If personal property has been abandoned on the residential premises and the park operator has knowledge of any person who has an outstanding right, title or interest in any of the personal property, the park operator shall list the item(s) of personal property and the name and last known address of each person with a right, title or interest on the request for writ of execution.
Praecipe
Upon the grant by the Court of plaintiff’s request for writ of execution, plaintiff shall file a praecipe for writ of execution with the Clerk using prescribed forms.
Concurrent with the filing of the praecipe for writ of execution under ORC §1923.13(B), plaintiff shall deposit with the Clerk the sum of Two Hundred Dollars ($200) which shall be applied to the cost of appraisal, advertisement fees, and any other sale costs. The Court may order the deposit of additional sums as needed. The costs shall be taxed as part of the costs in the action.
Certification
The plaintiff shall certify on the request for the writ of execution that (i) the home or vehicle was abandoned or otherwise left unoccupied for a period of three (3) days following entry of judgment and (ii) subsequently, the plaintiff provided the titled owner of the home or vehicle a written notice to remove the home or vehicle from the manufactured home park within twenty-one (21) days from the date of the delivery of the Notice. Plaintiff shall attach to the certification a copy of the Notice provided to the titled owner.
If personal property has been abandoned on the residential premises and the park operator has no knowledge of any persons with an outstanding right, title, or interest in any of the personal property, then plaintiff shall certify on the request for the writ of execution that it has no knowledge of such information.
If plaintiff seeks a writ of execution pursuant to ORC §1923.12(E)(2), plaintiff shall indicate in its request for writ that no letters testamentary or of administration with respect to the resident’s estate has been granted by the probate court within ninety (90) days of the date of the eviction of the resident from the manufactured home park pursuant to a judgment entered under ORC §1923.09 or ORC §1923.11.
(N) Motion To Seal Record
The court may entertain a motion to seal the eviction record under the following circumstances:
The First Cause case was dismissed;
Judgment was granted for the defendant on the First Cause;
Plaintiff prevails on the merits on the First Cause, and all of the following conditions are met:
At least five (5) years have passed since the judgment for the Plaintiff.
At least five (5) years have passed since defendant has received an adverse judgment action in this Court.
Defendant has satisfied the Second Cause judgment, if any, in the case where the defendant seeks to seal the eviction.
Plaintiff consents to sealing the record of eviction;
Judgment for possession for the plaintiff was granted improperly or,
At the discretion of the judge, sealing is appropriate under Rule 45 of the Rules of Superintendence for the Courts of Ohio.
Defendant must serve the plaintiff with a copy of the motion to seal. Plaintiff may file a response within seventeen (17) days of filing. Either party may request an oral hearing on the motion.
The Court may consider the following factors when considering a motion to seal:
Whether the sealing of the record is agreed to by the opposing party or council;
Whether there are unusual and exceptional circumstances;
The disposition of the First Cause of action (i.e., which party prevailed; whether the matter was voluntarily dismissed);
Whether the opposing party has filed an opposition memorandum;
Legitimate need of the government to maintain a public record of the case;
Other information available in the totality of the circumstances.
If the Court grants a motion to seal eviction record, the Clerk shall forthwith cause the tenant’s name to be redacted from all public records it maintains, including the electronic case index system, to the same extent that it would for a criminal expungement.
The Court will only entertain sealing up to five (5) cases for any individual
