Local Rules
1.01 SCOPE AND PURPOSE
These rules prescribe the procedures to be followed in the Housing Division of the Cleveland Municipal Court in order to insure uniformity and fairness in all operations of the Court.
All inquiries from the media shall be referred to the Personal Bailiff of the Judge of the Housing Division ("Judge").
Except where provided herein, the Housing Court will be governed by the Ohio Rules of Civil Procedure ("Civ.R.") and Criminal Procedure ("Crim.R."). All provisionsof the Cleveland Municipal Court Rules of Practice and Procedure ("General Division Rules") not in conflict with the rules herein are incorporated by reference and herebymade a part hereof.
1.04 HOUSING COURT SPECIALISTS
The Court employs Housing Court Specialists ("Specialists"). Specialists shall beknowledgeable in the maintenance, repair and rehabilitation of dwelling units, as well as the laws and ordinances that pertain to the maintenance, repair and rehabilitation of dwelling units. They may provide assistance to the Court and the parties before the Court. They may mediate disputes, carry out field investigations and perform any other duties prescribed by the Judge of the Housing Division.
Unless otherwise indicated by these rules, when computing any period of time prescribed or allowed by these rules, the "days" specified shall be calendar days. The day from which the period begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, Sunday or legal holiday. When the number of days prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall not be included.
A. A person or entity seeking to participate as amicus curiae may only do so with leave of the Court.
B. In the motion for leave to participate as amicus curiae, the moving partyshall demonstrate to the Court the public interest or particular legal matter that warrantsparticipation in the suit. The motion for leave shall be served on all parties.
C. If a motion for leave to participate as amicus curiae is granted, the amicus may file, at the Court’s discretion, a brief in support, a memorandum in opposition, or other such documents as the Court allows. In addition, at the Court’s discretion, the amicus also may be afforded an opportunity to present an oral argument.
A. Any attorney retained to represent a litigant in the Housing Division of the Cleveland Municipal Court shall file a Notice of Appearance.
B. Filing of an answer or other responsive pleading does not constitute compliance with section 1.07(A).
C. Attorneys who fail to file a Notice of Appearance will not be permitted to appear at any proceeding in the matter, and will not receive judgment entries, orders, or other communications from the Court.
All criminal cases regarding violations of the City of Cleveland’s Building, Housing, Fire, Health, Sanitation, Safety, Zoning, Sidewalk and Air Pollution Codes shallbe assigned to the Housing Division for adjudication.
2.02 ALTERNATIVE CITATION FORM FOR MINOR MISDEMEANORS
Pursuant to Crim.R. 4.1, the City may issue a citation for the offenses described in Schedule A, attached. The citation shall inform the defendant that, in lieu of appearing at the time and place stated, the defendant may, within that stated time, either mail in thewaiver amount as indicated on the citation or appear at the office of the Clerk of Court ("Clerk"), sign the guilty plea and waiver of trial provision of the citation, and pay the total amount of the waiver fee and costs to the Clerk. The citation shall inform the defendant that he or she may be arrested if he or she fails to appear either at the Clerk’s office or at the time and place stated in the citation.
2.03 FILING OF CRIMINAL COMPLAINTS, CITATIONS - LIMITS
A. To ensure accurate, expeditious processing of criminal complaints and citations, unless otherwise ordered by the Court, no more than fifty (50) criminal caseswill be accepted for filing in the Housing Division on any one day.
B. To ensure effective management of the Court’s criminal caseload, the Clerk shall set no more than one hundred (100) new case filings for arraignment (first appearance) on any one day’s docket.
2.04 FILING OF CRIMINAL COMPLAINTS, CITATIONS - TIMING
A. To permit the Clerk adequate time to identify and process all cases, all criminal complaints and citations must be filed with the Clerk at least fourteen (14) days prior to the scheduled hearing date.
B. The Clerk shall return to the City of Cleveland unprocessed any criminal complaints or citations filed fewer than fourteen (14) days prior to the scheduled hearing date.
A. Criminal summons and complaints (other than minor misdemeanor citations), including an arraignment date, shall be served on defendants by certified mail from the Clerk (including any duly appointed deputy of the Clerk of Court). Bailiff service shall be attempted if the certified mail is returned unclaimed. If service has not been completed within eight (8) weeks, the Court may order a warrant to issue. The Court may shorten this period for good cause.
B. Minor misdemeanor citations, including an arraignment date, shall be served on defendants via certified mail by the City of Cleveland. Bailiff service shall be attempted if the certified mail is returned unclaimed. If service has not been completed within seven (7) weeks, the Court may order a warrant to issue. The Court may shorten this period for good cause.
C. The City of Cleveland’s failure to provide a good service address may result in dismissal of the citation or complaint.
A. Pursuant to Crim.R. 4 and 4.1, the Court may obtain a defendant’s appearance either by serving a summons upon the defendant or by issuing a warrant for the defendant’s arrest.
B. When a defendant is notified of an outstanding arrest warrant and voluntarily reports to the Court as a result of this notification, the Court shall schedule a new court date by preparing and journalizing a judgment entry. The judgment entry may also recall any outstanding arrest or capias warrant and require defendant to post bond, as determined by the Judge. The Court shall inform the defendant of the new court date when the warrant is recalled and any required bond has been posted.
Initially, all cases shall be set for arraignment within six (6) weeks of filing. At the arraignment the defendant will be required to present a photo ID, along with vital statistics, to the Court. Arraignments may be conducted by the Judge or a Housing Division Magistrate.
A. The Judge of the Housing Division shall set bail pursuant to the Schedule B, attached, and shall take into consideration the factors listed in Crim.R. 46(C).
B. Absent a court order on the case governing bail, the Clerk or duly authorized deputy clerk may require that defendants in criminal cases in the Housing Division post bond in accordance with Schedule B, attached.
C. A defendant charged with a misdemeanor offense before this Court may be admitted to bail, under Crim.R. 46, upon posting of the bail in cash, or upon the presentation of a valid major credit card or in such other form as accepted by the Clerk.
Said major credit card must be one issued by a bank or other recognized and established institution, and must have a credit balance sufficient to cover the bail amount.
D. The Clerk shall compile, and submit to the Court for approval a list of the issuers whose credit cards are to be accepted for use in making bail under this section. The list shall include the names of the cards issued by each issuer.
E. No credit card transaction shall be permitted if said transaction will result in a service charge against the Clerk.
The Court may order one or more pretrial conferences in accordance with Crim.R.
17.1. Any party/counsel who fails to appear for pretrial without just cause may be punished for contempt of court. The Court may instruct the parties to conduct an informal pretrial outside the presence of the Court.
A. In addition to any scheduled pretrial conferences, the Court may order a settlement conference, which shall be conducted by a conference manager, who may be the Judge, a magistrate, a judicial clerk or an alternative dispute resolution specialist. Parties should be prepared at the settlement conference to make vigorous effort to achieve settlement. As part of the settlement conference process, the conference manager shall review with the respective parties the facts of the case, the strengths and weaknesses of the respective positions, and the consequences of proceeding to trial. Parties and counsel should allocate at least two (2) hours for the settlement conference.
B. All parties and counsel are required to attend the settlement conference. In addition, other concerned individuals or entities (e.g. neighbors, contractors, etc.) may be invited to attend.
A. All motions, except those made during trial or hearing, shall be made in writing. Motions shall be filed within the time limits established by the Ohio Rules of Criminal Procedure. Where the continuance is sought because counsel is scheduled to appear in another case assigned for the same date and same time, the motion must include an attached copy of the conflicting assignment.
B. A party shall not file a motion prior to the entry of a plea, except those motions listed as exceptions in Crim.R. 12.
C. A copy of any motion filed with the Clerk must also be delivered contemporaneously to both the Judge and the prosecutor of the City of Cleveland Law Department, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114. Failure to deliver a copy, as indicated herein, shall constitute a failure to file and may be grounds for striking the motion.
D. Upon the filing of a pretrial motion, the Clerk shall time stamp and file the motion, and forward the motion and the case file to the Housing Division within three (3) business days. Upon the filing of a post-judgment motion, the Clerk shall time stamp and file the motion, and forward the motion and the case file to the Housing Division within five (5) business days.
E. To expedite its business, the Court may rule upon motions based upon the briefs, memoranda and supporting affidavits, if any, without oral hearing.
F. Pretrial motions shall be ruled on within one hundred twenty (120) days of filing. Post-judgment motions shall be ruled upon within forty-five (45) days of filing.
A. Every case not resolved at arraignment or pretrial shall be set for trial. Where the maximum sentence is One Hundred Fifty Dollars ($150) or less, there is no right to a jury trial and the case shall be tried by the Court. Where the right to a jury trial does exist, a written demand must be made. If a jury demand is timely filed, the case shall be set for jury trial.
B. Any demand for jury must be in accordance with the Ohio Rules of Criminal Procedure and must be filed with the Clerk no later than the later of (i) ten (10) days prior to the date set for trial OR (ii) on or before the third day after receipt of the notice of the date set for trial.
Sentencing hearings shall be set within forty-five (45) days from finding. For good cause shown, this period may be extended to one hundred eighty (180) days.
A. At the time of sentencing and after sentencing, when a fine is imposed for a misdemeanor, the Court, in its discretion, may permit the payment of all or any portion of the fine in installments, upon such terms as the Court considers just. The Court may enlist the services of the Clerk in arranging a payment plan; however, under no circumstances may the payment plan exceed two (2) years.
B. Failure to comply with the payment plan may subject the defendant to sanctions, including but not limited to, revocation of the payment plan, punishment for contempt of court, and/or conversion of the fine and costs to a civil judgment as allowed by Ohio Revised Code ("R.C.") 2929.18.
2.15 SELECTIVE INTERVENTION PROGRAM
A. The Housing Division of the Cleveland Municipal Court has established a Selective Intervention Program ("SIP") to assist eligible and approved criminal defendants in correcting the City code violations, which have brought them before the Court. Upon referral by the Judge, a housing court specialist shall screen a defendant being considered for participation in the SIP program.
B. All persons referred to the SIP shall be assessed a non-refundable administrative fee of twenty-five dollars ($25.00). The Court shall render an explanation of the program and the fee to the defendant prior to referral for screening.
C. For good cause shown, the Court may waive the SIP fee if the Judge is satisfied that the defendant is indigent or otherwise unable to pay.
D. Pursuant to R.C. 1901.14, the SIP administrative fee shall be paid to the Clerk of the Cleveland Municipal Court, who shall pay the fee directly to the Treasurer of the City of Cleveland.
E. The Clerk shall accept the SIP fee in cash, personal check, certified check, money order or upon a valid major credit card. Said major credit card must be one issued by a bank or other recognized and established institution, and must have a credit balance sufficient to cover the amount of the fee.
F. If the defendant is found not eligible or removed from the SIP docket, the case shall be returned to the Judge’s docket and the defendant shall be given a new court date by the court.
G. Upon successful completion of the SIP, the Court may grant the City of Cleveland’s motion to nolle and dismiss the criminal case.
2.16 TIME SCHEDULE FOR DELETION OF WARRANTS
Each month the Clerk shall prepare a docket (print out) of cases wherein a
summons or warrant has not been executed within the guidelines established by this Rule. The Judge of the Housing Division shall review these cases and may order such summons and warrants withdrawn and the cases closed, when it does not appear that justice may be served by allowing them to remain active. The time guidelines are as follows:
Prejudgment Misdemeanor Warrants
Minor Misdemeanor Warrants 2 years
Second, Third and Fourth Degree Misdemeanor Warrants 2 years
First Degree Misdemeanor Warrants 5 years
All Post-Judgment Misdemeanor Warrants 5 years
A. Search warrants signed by and returned to the Judge of the Housing Division shall be maintained on file in the office of the Clerk.
B. The Clerk shall maintain an index of the search warrants. Warrants shall be indexed by the date of return.
C. Warrants and all accompanying documents shall be retained by the Clerk for five (5) years. Warrants shall be maintained in the Clerk’s office for two (2) years. Warrants more than two (2) years old but less than five (5) years old may be held by the Clerk in off site storage.
D. Warrants and all accompanying documents may be reviewed upon request. The request to review a warrant and accompanying documents must be made in writing, to the Clerk. The individual requesting review of a warrant must provide the Clerk with the address of the premises, and the approximate date of return of the warrant.
SECTION 3.0
CIVIL RULES
All Forcible Entry and Detainer cases, rent deposit actions, applications to remedy conditions, security deposit claims, receivership cases, foreclosures, temporary restraining orders, injunctions, landlord-tenant cases, land contract and quiet title actions and all other actions brought in the Cleveland Municipal Court under R.C. Chapters 1923, 3733 and 5321 shall be assigned to the Housing Division for adjudication.
A. No pleading or motion shall be accepted for filing by the Clerk unless there first shall be deposited the sum of not less than the amount specified by the Clerk as security for costs, unless otherwise ordered by the Court or exempted by law. Those persons unable to post the required security for costs may be excused from the prepayment of costs upon filing a completed Affidavit of Indigency Form approved by the Judge of the Housing Division, or a Housing Division Magistrate so empowered by the Judge of the Housing Division. The Court reserves the right to revoke a party's indigent status. If such status is revoked, the party shall be required to deposit security for costs as provided herein.
B. Poverty affidavits submitted in conjunction with a jury demand, motion or pleading filed with the Legal Aid Society as counsel of record do not have to be approved by the Court.
C. The Court may at any time require additional information and/or a hearing to determine the validity of the poverty affidavit.
A. All summonses shall be served in accordance with the Ohio Rules of Civil Procedure. If service of summons is not obtained within six (6) months from the date of filing, the Court or Clerk shall notify the party/counsel that the case shall be dismissed in ten (10) days unless good cause is shown to the contrary.
B. Where bailiff service is requested in an eviction, so that the bailiffs may gain entrance through any common doors, written instructions must include a telephone number for (i) an on-site property manager, (ii) custodian or (iii) where there is no contact person available on the premises, the plaintiff.
No party shall be granted a continuance of a trial, pretrial, or a hearing without a written motion from the party/counsel stating the reason the continuance is sought, filed at least seven (7) days in advance, unless otherwise approved by the Court.
All motions, other than those made at trial or hearing, shall be in writing. They must be typewritten, or legibly hand-written.
Written motions shall comply fully with the Ohio Rules of Civil Procedure, and shall consist of the following:
1. The motion, which includes:
a. a statement of the relief or order sought; and
b. a statement of the grounds for the motion; and
c. where the continuance is sought because counsel is scheduled to appear in another case on the same date and at the same time, an attached copy of the conflicting assignment; and
d. the signature of the moving party/moving party’s counsel per General Division Rule 3.01.
2. A brief in support of the motion, which includes:
a. a concise statement of pertinent facts; and
b. a description of the relief or order sought; and
c. applicable statutes, ordinances, rules, regulations, or the like (lengthy extracts may be attached as an appendix); and
d. arguments establishing legal grounds for the motion along with case citations, statutes and other authorities relied upon.
3. Supporting documentary evidence, which may include affidavits, if necessary.
4. A certificate of service meeting the requirements of the Ohio Rules of Civil Procedure. The certificate of service shall:
a. be endorsed on the motion or other pleading or filed as a separate document; and
b. affirmatively show the exact date and method of service.
3.052 OPPOSITION MEMORANDUM, CONTENTS AND SERVICE
A. A party opposing a written motion may file with the Clerk, and serve on the opposing party/counsel, an opposition memorandum within seven (7) days from the date the motion to which the opposition is directed, was served, unless otherwise ordered by the Court. Failure to serve and file an opposition memorandum or brief may be construed by the Court as an admission that the moving party’s motion should be granted.
B. A memorandum in opposition shall include:
1. A brief in opposition, consisting of:
a. a concise statement of facts or statement of agreement with moving party’s facts; and
b. applicable statutes, ordinance, rules, regulations or the like (lengthy extracts may be attached as an appendix); and
c. argument establishing legal and factual grounds for denying the motion containing case citation, statutes and other authorities relied upon; and
d. opposing documentary evidence, if any.
2. Certificate of service pursuant to Civ.R. 5. See Rule 3.051 above.
3.053 SERVICE ON OPPOSING PARTY/COUNSEL
A copy of any motion filed with the Clerk must also be served contemporaneously on the opposing party/counsel. Failure to deliver a copy of the motion, with a completed service clause, as indicated shall constitute a failure to file and may be grounds for striking the motion.
3.054 DELIVERY OF MOTION SEEKING STAY OF EXECUTION
A. A copy of any motion filed with the Clerk seeking a stay of a Move-Out must be contemporaneously delivered by the filing party to (i) the Chief Magistrate of the Housing Division (13th Floor of the Justice Center) AND (ii) the Chief Deputy Bailiff of the Housing Division (3A Bailiff’s Office in the Justice Center). Failure to deliver copies of the motion as indicated shall constitute a failure to file and may be grounds for striking the motion.
B. A copy of any motion filed with the Clerk seeking a stay of execution of a judgment, but not a Move-Out, must also be contemporaneously delivered by the filing party to the Chief Magistrate of the Housing Division (13th Floor of the Justice Center). Failure to deliver copies of the motion as indicated shall constitute a failure to file and may be grounds for striking the motion.
All motions, except motions to stay a move-out, shall be ruled upon within ninety (90) days from filing, unless the time frame for such ruling is otherwise extended by the Court. Due to their immediacy, motions to stay a move-out may be ruled upon in less than ten (10) days. See Rule 4.03(C). The Court will consider responses, if any, filed by the opposing party/counsel.
Whenever possible, motions shall be determined without oral argument. Oral hearings will be permitted where: (a) disposition of the motion turns upon a disputed issue of fact; (b) disposition of the motion turns upon evidence which cannot be presented in documentary form; or (c) for other good cause shown.
A. Any party requesting a bench trial must file a written Motion for Bench Trial. The motion must be filed so as to allow two (2) full business days, excluding weekends and legal holidays, to elapse before the time fixed for the original hearing or the time to which the hearing is continued. For example, assuming no intervening holidays:
Original Hearing Day Request/Demand must be filed by
Monday Preceding Wednesday
Tuesday Preceding Thursday
Wednesday Preceding Friday
Thursday Preceding Monday
Friday Preceding Tuesday
B. The party seeking the bench trial must state the basis for the motion. Among the factors the Court may consider when ruling on a motion for a bench trial are (i) the complexity of the legal and/or factual issues presented, (ii) the time needed to conduct discovery, (iii) the time needed for presentation of evidence at trial, (iv) burden on the parties if the motion is granted or denied and (v) any other factors which the Court deems relevant. The motion for bench trial must be served upon the opposing party/counsel pursuant to the above requirements and Rule 3.051.
C. In the event the motion for bench trial is granted, the matter shall be set for pretrial and removed from the general call docket.
A. The demand for a jury must be in writing by separate instrument, or by prominent endorsement in the caption of a pleading. A deposit in the amount specified by the Clerk must be made by the party demanding the jury at the time the demand is made. Failure to make the required deposit shall constitute a failure to file the jury demand. A jury demand may be made in conjunction with an approved poverty affidavit. See Rule 3.06.
B. If the jury demand is made by separate instrument, a copy must be served upon the opposing party/counsel and the act of such service must be endorsed thereon.
C. If a timely jury demand is filed, the matter shall be set for pretrial and removed from the general call docket.
Any demand for jury shall be in accordance with the Ohio Rules of Civil Procedure except in Forcible Entry and Detainer actions where the demand must be made so as to allow two (2) full business days, excluding weekends and legal holidays, to elapse before the time fixed for the original call or the time to which the call is extended. See Rule 3.06 regarding calculation of two (2) full business days.
When a jury has been demanded as herein provided and the demanding party subsequently wishes to waive the demand, unless the demand is waived in writing by all parties not less than two (2) full business days prior to the date set for trial, the party who requested the jury and waives it shall pay all jury fees and expenses incurred as a result of such jury demand, including the jury deposit, unless otherwise ordered by the Court. The Court shall indicate specifically if the jury expenses are to be charged indicating the party, the number of jurors, the number of alternate jurors and the number of days.
3.08 RECORDS OF HEARINGS AND PRIVATE REPORTERS
A. Although the Court does not utilize a reporter for civil matters, hearings are sometimes audiotaped. A copy of the audiotape may be obtained by completing a request form (available from the Housing Division Bailiff’s office or from the magistrates’ personal bailiff) and providing a blank tape with the request form.
B. Any party or his representative may retain the service of a private reporter to keep a verbatim record of any scheduled hearing. Upon written motion made at least three (3) days prior to the taking of testimony at the hearing, a private reporter so retained shall be designated by the Court as the official court reporter for the purpose of recording the proceedings at such hearing. A private reporter also may be designated as the official reporter for a hearing by agreement of the parties.
A. Cases may be removed from the general call docket and set for pretrial conference. At the conference, the Court may act upon service, leaves to plead, discovery schedules, dates for hearings, etc. as needed. A final pretrial may be ordered where the case presents complex issues of fact and/or law.
B. If settlement is not reached, then the Court shall act on any other matters which come before it at that time and efforts shall be made to narrow legal issues, to reach stipulations as to facts in controversy and, in general, to shorten the time and expense of trial. The Court may enter a case management order regarding stipulations, admissions and other matters.
3.091 REMOVAL FROM GENERAL CALL DOCKET
A. The eviction hearing (issue of possession of the premises) shall be removed from the general call docket and set for pretrial conference where a timely jury demand is filed prior to the eviction hearing or where a motion for bench trial is timely filed and granted prior to the eviction hearing.
B. Claims for money filed in conjunction with an eviction and separate claims for money damages shall be removed from the general call docket and set for pretrial conference where a timely jury demand, answer or counterclaim is filed prior to the hearing on the money claims.
C. Other cases may be removed from the general call docket and set for pretrial conference at the discretion of the Court. The Court may set a pretrial conference where it determines that such a conference may be useful in achieving an amicable settlement or in more fully preparing the matter for trial.
A. At the Court’s option, the conference may be conducted by the Judge, a magistrate, a judicial clerk or an alternative dispute resolution specialist. The conference shall be conducted in person, unless otherwise ordered by the Court.
B. Counsel attending the conference must have full authority to (i) enter into a case management order, (ii) stipulate on evidence and admissions and (iii) enter into a settlement agreement. In addition to counsel, all parties are required to attend the conference, unless otherwise ordered by the Court.
C. If the parties or their counsel fail to attend a scheduled pretrial or final pretrial without good cause shown, the Judge or any magistrate presiding at the conference shall have the authority to dismiss the case without prejudice, proceed ex parte on the merits, or use other sanctions as may be deemed appropriate, including, but not limited to, contempt of court.
D. The following decisions shall be made at the conference:
1. A definite schedule for the completion of all discovery;
2. A definite date for exchange of expert witness reports;
3. A definite date for filing of all motions;
4. A date for the final pretrial conference, as needed;
5. A date for submission of trial statements, as needed; and
6. The trial date.
E. At the conclusion of the conference, the Court shall prepare an order including definite dates for the items listed in D. 1-5 of this Rule. The order shall be journalized and binding on all parties. Copies of the order may be given to the parties at the conclusion of the conference or mailed to the parties via regular mail.
F. If any new parties are added to the litigation subsequent to the case management order, then the Court may set another conference. Unless otherwise specified, the new case management order shall supersede any prior case management order.
3.093 FINAL PRETRIAL CONFERENCE
A. The Court may order a final pretrial on cases where a jury demand or request for a bench trial has been timely filed (and granted) or whenever the Court deems necessary. All final pretrial conferences shall be conducted by the Judge or a magistrate.
B. All parties and counsel must be present at the final pretrial. If the real party in interest is an insurance company, common carrier, corporation, or other artificial legal entity, then the chosen representative must have full authority to negotiate the claim to the full extent of the demand of the opposing party.
C. Counsel attending the conference must have complete authority to stipulate on items of evidence and admissions.
3.094 SETTLEMENT CONFERENCES
A. In addition to any scheduled pretrial conferences, the Court may order a settlement conference, which shall be conducted by a conference manager, who may be the Judge, a magistrate, a judicial clerk or an alternative dispute resolution specialist. Parties should be prepared at the settlement conference to make vigorous effort to achieve settlement. As part of the settlement conference process, the conference manager shall review with the respective parties the facts of the case, the strengths and weaknesses of the respective positions, and the consequences of proceeding to trial. Parties and counsel should allocate at least two (2) hours for the settlement conference.
B. All parties and counsel are required to attend the settlement conference.
A. When ordered, each party shall submit a trial statement prior to trial.
B. When ordered, each party shall file their trial statement with the Clerk and deliver a copy to the opposing party/counsel as indicated in the Court’s order, but in any event no later than seven (7) days in advance of trial, unless otherwise specifically ordered by the Court.
C. Unless otherwise ordered by the Court, the trial statements shall:
1. State the facts and legal issues;
2. State the agreed stipulations;
4. List non-expert witnesses with a brief summary of expected testimony;
5. List expert witnesses with reports attached (See Rule 3.10);
6. Describe special legal problems anticipated;
7. State the estimated length of trial;
8. List pretrial motions contemplated;
9. List special equipment needed for trial;
10. State that all documentary evidence and photos have been marked for identification and confirm that copies have been submitted to the opposing party; and
11. List photographs or other non-documentary evidence which may be submitted at trial, and confirm that a copy of the list has been submitted to the opposing party/counsel and that the opposing party/counsel has been offered a reasonable opportunity to examine the evidence before trial.
D. Failure to file a trial statement where ordered, in conformity with the above requirements, may result in dismissal, default judgment or other appropriate sanctions.
Each party demanding a jury trial must file with the Clerk, deliver to the opposing party/counsel and provide to the Court, no later than seven (7) days in advance of trial, a complete set of instructions suitable for charging the jury in the matter. In an action scheduled for jury trial, any party who has not filed a demand for jury may also file jury instructions.
FAILURE OF THE DEMANDING PARTY TO FILE JURY INSTRUCTIONS MAY BE CONSTRUED AS A WAIVER OF THE JURY DEMAND.
A. A party may not call an expert witness to testify unless a written report has been procured from the witness and provided to the opposing party/counsel. Parties shall submit written expert reports in accordance with the schedule determined at the pretrial conference. Upon good cause shown, the Court may grant the parties additional time within which to submit expert reports.
B. Pursuant to the pretrial order, the parties shall also submit, to the Court and the opposing party/counsel, the expert’s name, area of expertise, qualifications and a detailed summary of the testimony to be offered. Failure to submit the aforementioned information as indicated may result in a party being prohibited from calling the expert witness to testify at trial.
C. If a party is unable to obtain a written report from an expert, the party/counsel must demonstrate that a good faith effort was made to obtain the report and must advise the Court and opposing party/counsel. The Court shall have the power to exclude testimony of the expert if good cause is not demonstrated.
D. The report of an expert must reflect his/her opinions as to each issue on which the expert will testify. An expert will not be permitted to testify or provide opinions on issues not raised in the expert’s report.
3.11 CASES HELD FOR AGREED ENTRY
Parties wishing to submit an agreed entry shall inform the Court of the proposed deadline for submission. Such files shall be marked “hold for entry” (HFE) and will be held for no more than sixty (60) days. If an entry has not been received by the stated date, upon notice, all remaining claims case shall be dismissed without prejudice.
3.12 PROCESS SERVERS
Upon proper motion, the Court may appoint individuals to serve as a process server on a case-by-case basis or as a standing process server, pursuant to Civil Rules 4.1(B) and 45(B), for cases filed in the Housing Division. Standing appointments shall be for a period of no longer than one (1) year from the date of the entry granting the appointment.
3.121 APPLICATION FOR APPOINTMENT
A. Application for appointment shall be by written motion and shall state either the specific case number for which the appointment is sought or the request for a period of appointment not to exceed one (1) year. The filing fee for an Application for Standing Appointment shall be as set forth in Schedule C attached.
B. Motions for appointment shall comply with Civ.R. 4.1. In addition, the motion for standing appointment shall be supported by an affidavit setting forth the following:
· the name, address and telephone number of the applicant;
· that the applicant is eighteen (18) years of age or older;
· that the applicant agrees not to provide service of process in any case in which the applicant is a party, counsel for a party, an employee of the plaintiff or an employee of the plaintiff’s management company; and
· that the applicant agrees to follow the requirements of Civil Rules 4 through 4.6, any applicable local rules and any specific instructions for service of process as requested by the party requesting service and/or as ordered by the Court in individual cases.
C. In addition to the motion and affidavit, the applicant requesting a standing appointment shall also submit an order captioned “In Re Appointment of [name of applicant] as Standing Process Server” and stating as follows:
This matter came for consideration upon a Motion for Appointment as Standing Process Server pursuant to Housing Division Local Rule 3.12 et seq. It appearing to the Court that the applicant has complied with the provisions of Local Rule 3.12 et seq., [name of applicant] is hereby appointed as a Standing Process Server authorized to make service of process in cases filed with this Court for a period of _________________________ from the date of journalization of this order. This standing appointment is revocable by the Court at any time, upon proper motion, after notice and hearing.
D. Orders granting appointments shall be signed by the Judge of the Housing Division. The Clerk shall record the standing appointments in a special journal for entries only for process server appointments from the Housing Division and shall retain the original application/motion and entries.
3.122 EFFECT OF ORDER GRANTING STANDING APPOINTMENT
Thereafter, the Clerk shall accept a time stamped copy of such order as satisfying the requirements of Civ.R. 4.1(B) for designation by the Court of a person to make service of process.
3.123 STANDING APPOINTMENT REVOCABLE
The use of a standing process server by a party in a landlord/tenant action is a courtesy or privilege extended by the Cleveland Municipal Court’s Housing Division. The party’s privilege of using a standing process server and/or the standing process server’s status may be revoked or terminated after hearing, if it comes to the Court’s attention that the party or the standing process server has abused his/her position, has falsified any return of service or given false testimony. These issues may be raised on the Court’s own motion or upon the motion of a party.
3.124 PENALTIES
A. If, after notice and hearing, the Cleveland Municipal Court Housing Division has been presented with credible evidence that a process server has abused his/her position, falsified any return of service or given false testimony, then thereafter that process server will be barred permanently from serving in the capacity as a process server. This sanction shall be in addition to any criminal sanction, which may result from the process server’s conduct.
B. Upon finding that a process server has abused his/her position, falsified any return of service or given false testimony, then as a penalty, the party employing that process server will be prohibited from using a process server for a period of six (6) months. Upon the occurrence of a second violation by a process server employed by a party, that party shall be permanently barred from using the services of a process server.
The magistrates of the Housing Division, or such other magistrates as assigned by the Court, are empowered to hear and report on all cases.
4.02 JUDGMENTS CONFIRMING MAGISTRATE’S REPORT
The Housing Division Judge shall act on all magistrate’s recommendations and decisions in conformance with Civ.R. 53.
4.03 OBJECTIONS TO MAGISTRATE’S RECOMMENDATIONS & DECISIONS
A. The party objecting to the Magistrate’s Report shall file written objections within fourteen (14) days from the date of journalization of the report by the Clerk.
B. The objecting party must state with specificity his or her objections to the report and the relief requested. A copy of the objections must be served upon the opposing party and so certified in the pleading. All objections must comply with the Ohio Rules of Civil Procedure.
C. Filing objections to a judgment on the First Cause (for possession) in a Forcible Entry and Detainer action does not operate as an automatic stay of enforcement of that judgment. A party seeking a stay of execution on the First Cause judgment (i.e. stay of the move-out) must file a written request for such stay. The move-out shall proceed unless the request for stay is granted. IF A MOVE-OUT HAS BEEN ORDERED, PARTIES SHOULD FILE THEIR OBJECTIONS PROMPTLY. Objections to a First Cause ruling shall be ruled upon within fourteen (14) days of hearing or assignment, where no hearing is to be held.
D. The filing of objections to a ruling other than as indicated above in paragraph C of this Rule shall operate as an automatic stay pursuant to Civ.R. 53(E)(4). These objections shall be ruled upon within forty-five (45) days of hearing or assignment, where no hearing is to be held.
A. Unless otherwise extended by the Court, the magistrate shall issue a recommendation within fourteen (14) days of hearing, trial or assignment in the following matters:
1. First Causes (e.g. Heard and Submitted);
2. Combined First and Second Causes (e.g. R.C. 1923.061(B)):
3. Objections to First Cause ruling;4.04 TIMELY RECOMMENDATIONS
4. First Cause post-judgment motions;
5. Motions to compel repairs; and
6. Requests for injunctive relief.
B. Unless otherwise extended by the Court, the magistrate shall issue a recommendation within forty-five (45) days of hearing, trial or assignment in the following matters:
1. Second Cause contested trials;
2. Second Cause defaults taken Heard and Submitted;
3. Contested claims for money damages only;
4. Post-judgment motions (other than First Cause);
5. Objections to magistrate’s recommendation/decision (other than First Cause);
6. Applications for release of rent; and
7. All other matters.
SECTION 5.0
MEDIATION SERVICES
Prior to trial on the First Cause (eviction), the parties shall have the opportunity to fashion a resolution to their dispute through mediation services offered at no cost to the parties by the Housing Court. Mediation services also are available for actions based upon rent deposits and efforts to compel repairs. See Rules 8.0 and 9.0.
5.02 MEDIATION AVAILABLE ON DATE OF TRIAL
A sign shall be posted outside the courtroom where First Cause (eviction) hearings are held informing the parties of the opportunity for mediation. On the day of the trial, the magistrate or the mediation coordinator will announce the availability of mediation. If both parties request or agree to mediation, they shall be referred to mediation services.
5.03 CONFIDENTIALITY OF MEDIATION COMMUNICATIONS
Pursuant to R.C. 2317.023, any communications made in the course of and relating to the subject matter of a mediation are confidential. No such communication shall be disclosed or subject to subpoena in a civil, criminal or administrative proceeding, except as provided in the Ohio Revised Code and Ohio case law.
SECTION 6.0
FORCIBLE ENTRY AND DETAINER
A. The language required by R.C. 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 (i) at least twice as large as all other printing or writing on the Notice and (ii) 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 color, borders or other such elements to be determined on a case by case basis.
B. Proof of service and a copy of the Notice required by R.C. 1923.04(A) or R.C. 5313.06 will be required at trial.
6.02 COMPLAINTS IN FORCIBLE ENTRY AND DETAINER
In Forcible Entry and Detainer (“FED”) cases, the Housing Division of the Cleveland Municipal Court bifurcates the eviction (claim for possession) from the claim for money damages. The claims may be combined for hearing where (i) a party timely files a jury demand, (ii) a party timely files, and the Court grants, a motion for bench trial or (iii) the Court so orders for other good cause.
For purposes of these rules, in an FED case, the eviction (claim for possession) is designated as the first cause of action (“First Cause”). In an FED where plaintiff/landlord is seeking money damages, the claim for money damages is designated as the second cause of action (“Second Cause”).
6.022 SPECIFICITY OF COMPLAINTS
A. Complaints filed in FED actions shall comply with Civ.R. 7 through 15. In addition, the complaint shall state a street address of the plaintiff. A plaintiff’s address stated as a post office box is insufficient. The complaint shall also (i) identify the trust where the plaintiff is a trustee and (ii) identify the property owner where the plaintiff is an agent.
B. The grounds for the eviction shall be stated with sufficient specificity to allow the defendant to understand the grounds for the eviction and to formulate a defense, if any. The grounds include, but are not limited to, the following:
1. non-payment of rent;
2. breach of a specific obligation imposed by R.C. 5321.05;
3. breach of a specific obligation imposed by a written rental agreement; and
4. termination of a periodic tenancy pursuant to R.C. 5321.17.
C. Where the parties have executed a written rental agreement (lease), it shall be so stated in the complaint and the rental agreement shall be attached to the complaint, pursuant to Civ.R. 10(D).
D. If the complaint includes a Second Cause, it shall include the following:
1. the amount of monthly rent;
2. the amount of the security deposit, if any;
3. the month(s) and year(s) for which plaintiff is seeking back rent;
4. late fees, if any;
5. the request that rent be awarded until the defendant/tenant vacates or until the lease expires; and
6. the estimated amount of property damage sought, if any.
E. Failure to comply with these requirements may result in dismissal of the complaint.
A. Except as provided in paragraph B below, service of process in Forcible Entry and Detainer shall be made pursuant to the Ohio Rules of Civil Procedure and may be accomplished by mail, bailiff service or publication. The plaintiff shall file a written request for the method of service. Plaintiffs may retain, at their own costs, a process server to complete personal or residence service.
B. Pursuant to Civ.R. 1(C)(3), where mail service has been requested, the Clerk shall send service of summons to defendant(s) simultaneously by certified mail pursuant to Civ.R. 4.1 and by ordinary mail pursuant to Civ.R. 4.6. The First Cause shall go forward on the scheduled date of trial except where (i) the certified mail is returned undeliverable or (ii) the certified mail has not been endorsed and the ordinary mail has returned.
Unless otherwise permitted by the Court, no plaintiff may file more than forty (40) FED cases, including no more than five (5) cases based upon grounds other than non-payment of rent, to be heard on any given call.
6.05 SCHEDULING FIRST CAUSE HEARINGS (EVICTIONS)
A. The First Cause shall be set for hearing at 9:00 a.m. twenty-one (21) days from the filing date, unless otherwise ordered by the Court.
B. Where any one plaintiff files ten (10) or more FED cases on any one day, such cases will be scheduled for trial at 10:30 a.m. on the appropriate call day, unless otherwise ordered by the Court.
6.06 ANSWERS, MOTIONS, JURY DEMANDS
If the defendant files an answer, a motion or a jury demand in an FED case and the filing causes a new hearing date to be set, the parties shall be notified of the new hearing date by ordinary mail, or by such other means as the Court determines are likely to result in adequate notice to the parties.
At trial on the First Cause, the defendant may assert any defense to the claim for possession without having filed a written answer. If the complaint alleges a claim for money damages, any answer to the claim for money damages must comply with Civ.R. 7 through 15.
6.08 SPECIAL NEEDS: DEPARTMENT OF AGING, VETERANS SERVICES, ETC.
Certain defendants may be eligible for assistance through the Department of Aging and various veterans’ programs. The Court may refer tenants, potentially eligible for such assistance, to these programs.
6.09 COUNTERCLAIMS UNDER R.C. 1923.061(B)
When the action is based, in whole or in part, on non-payment of rent for residential premises, and during the hearing on the First Cause there is evidence presented that the conditions of the premises are at issue or that the provisions of R.C. 3733 or R.C. 5321 may have been violated, the Court shall determine whether an action under R.C. 1923.061(B) is appropriate. If the action is to proceed under R.C. 1923.061(B), the First and Second Causes shall be tried together.
6.091 R.C. 1923.061(B) INITIAL ORDER
A. Where the Court grants a tenant leave to proceed under R.C. 1923.061(B), the Court shall make an initial order including, but not limited to the following:
1. Defendant is to (a) file an answer and/or counterclaim and (b) deposit a stated sum under the case number with the Clerk by end of business on a date specific. The date specified shall be no more than ten (10) days after the initial hearing date. In the order, the Court shall state the amount of monthly rent and the months represented by the deposit amount.
2. The matter shall be set for status hearing within three (3) days after the date for deposit.
3. The Court shall request an inspection of the premises by the Division of Building and Housing.
B. In the event the defendant deposits as ordered, the matter shall proceed under R.C. 1923.061(B). The status hearing may be converted to a pretrial on all claims of the parties and the matter may be referred to mediation. The Court may order defendant to continue depositing rent monthly by a specified date during the pendency of the action. Should the defendant either fail to file a counterclaim or fail to deposit as ordered, the matter shall proceed on the issue of possession on the date of the status hearing.
6.092 JUDGMENTS UNDER R.C. 1923.061(B)
A. When a defendant/tenant has asserted a counterclaim under R.C. 1923.061(B), the Court shall:
1. Enter judgments on the plaintiff's claim for money damages and the defendant's claim for money damages;
2. Where judgment is entered in favor of plaintiff on plaintiff's claim for money damages, of that judgment amount, state separately the amount attributable to plaintiff's claim for rent and the amount attributable to plaintiff's claim for damages;
3. Based only on the amount of plaintiff's claim for rent and the defendant's claim for damages, determine to whom a net judgment is owed and the amount of that net judgment (hereinafter "net judgment"); and
4. Disburse the rent paid into Court by the defendant, if any, as follows: first, to the party to whom net judgment is owed in an amount not to exceed the net judgment; secondly to the defendant.
B. If (i) the net judgment is in favor of plaintiff, and (ii) the defendant prevailed, in whole or in part, on the counterclaim, and (iii) the net judgment is not fully satisfied by the disbursement in A.4. above, then the defendant shall be entitled to pay the plaintiff within five (5) days from the journalization of the decision, by depositing the amount necessary to fully satisfy the net judgment with the Clerk under the case number.
C. If the net judgment is owed to the defendant or, after application of A.4. above, the net judgment is fully satisfied, then judgment shall be entered for the defendant in the action for possession.
6.10 ENFORCEMENT OF FIRST CAUSE JUDGMENT: WRITS AND MOVE-OUTS
A. 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 and schedule a move-out with the Eviction Unit bailiffs.
B. Writs must be timely purchased. Timely purchase is determined according to the following:
1. Within sixty (60) days of the date of the judgment.
2. Where the judgment is more than sixty (60) 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 and schedule a move-out.
3. 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.
C. Writs are issued by the Clerk’s office prior to the move-out. If a writ has not issued within forty-five (45) days of purchase, the Court may, in its discretion, require plaintiff to 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 and schedule a move-out.
D. Writs must be executed upon (the scheduled move-out must occur) within fifteen (15) days of issuance by the Clerk’s office. If a move-out is stayed or canceled, and more than fifteen (15) days pass between the date the writ issued and the new move-out date, the plaintiff must purchase a new writ.
E. The Clerk shall maintain all writs of restitution for five (5) years from the date of execution.
In order to arrange for the physical removal of the defendant and their belongings, the following must occur:
1. Plaintiff must purchase a writ of restitution from the Clerk;
2. Plaintiff must present the receipt for the writ to the bailiffs in the Eviction Unit of the Court; and
3. Upon presentation of the receipt, the bailiff shall schedule a move-out date, inform the plaintiff of the scheduled date and provide plaintiff with a list of insured and/or bonded movers.
A. Every move-out scheduled by the Court pursuant to a writ of restitution shall be supervised by the Eviction Unit bailiffs. The actual physical move-out of defendant’s belongings shall be conducted by insured or bonded movers hired by plaintiff.
B. Plaintiffs scheduling move-outs must contract with an insured or bonded moving company for the physical removal of the property inside the subject premises. The moving company must be present at the premises at the time of the scheduled move-out.
C. On the scheduled date and hour, the bailiffs of the Eviction Unit shall meet the plaintiff, or his/her agent, at the premises. The bailiffs shall enter the premises and remove all inhabitants not lawfully entitled to possession. The movers shall then conduct the actual physical move-out and place the items on the tree lawn.
D. The Court recommends that plaintiffs inspect the premises prior to scheduling the move-out date. On the scheduled move-out date, if the bailiff determines that the volume or nature of the contents of the premises is such that removal of the contents to the tree lawn would create a health or safety hazard, the move-out may be canceled. Thereafter, a new move-out date may be set in conjunction with a special waste collection as scheduled by the plaintiff. The costs of the special waste collections initially shall be paid by the plaintiff, who may plead such costs as damages in the second cause of action.
E. In addition, if prior to or on the scheduled move-out date, the bailiff determines that the removal of the contents of the premises to the tree lawn could create a hazard due to an infestation of insects, vermin, etc., the move-out may be canceled, and the Court may request an assessment of the premises by the Health Department. If the Health Department determines that removal of the contents of the premise would create or exacerbate a health hazard, the Court may require the plaintiff to abate the hazard in a manner approved by the Court (e.g. through extermination by a licensed pest control service) prior to proceeding with the move-out. The cost of the pest control service initially shall be paid by the plaintiff, who may plead such costs as damages in the second cause of action.
A. Movers performing court-supervised move-outs must maintain liability insurance or a bond to protect the public against loss sustained by reason of the death of or bodily injuries to persons and for loss or damage to property (except cargo) resulting from the negligence of the mover. The liability insurance shall be in the following minimum amounts: One Hundred Thousand Dollars ($100,000) for bodily injuries to or death of one person, Three Hundred Thousand Dollars ($300,000) for bodily injuries to or death of all persons injured or killed in any one accident and Fifty Thousand Dollars ($50,000) for loss or damage in any one accident to property of others (excluding cargo). Additionally, movers shall maintain freight cargo liability insurance for the transportation of household goods in the amount of Twenty Thousand Dollars ($20,000). The insurance policy or bond must include provisions requiring the insurance or bond agents or companies to immediately notify the Chief Deputy Bailiff of the Eviction Unit of the Housing Division in the event the insurance coverage or bond expires, is limited or is revoked.
B. In the event the Court is notified, or discovers, that a mover’s insurance policy or bond coverage has expired or has been limited, revoked or canceled, the Court reserves the right to remove said mover’s name from the list.
A. The Court shall maintain a list of insured or bonded movers who have met the qualifications as indicated in Rule 6.103 and have timely applied for inclusion in the list. The list shall be available to plaintiffs scheduling move-out dates. The plaintiff shall not be required to use a mover from the list, but any mover hired by the plaintiff to perform a court ordered move-out must be insured or bonded in the amount stated in Rule 6.103 above.
B. The Court shall update its list of insured or bonded movers annually. By October 1st of each year, the Court shall post notice that movers’ applications are being accepted for inclusion in the annual list. This notice shall be posted outside the courtroom where FED trials are heard and advertised in the Daily Legal News. Movers interested in being added to the list shall submit a completed application form, along with a copy of proof of insurance or bond coverage consistent with the above requirements, to the Chief Deputy Bailiff of the Eviction Unit by November 15th of each year.
C. Movers meeting the above qualifications shall be notified by December 15th of each year that they will be included in the list. Upon notice of inclusion and prior to December 31st of that year, the mover must submit a revised copy of their insurance or bond coverage, containing a provision requiring the insurance or bond agent or company to immediately notify the Chief Deputy Bailiff of the Eviction Unit of the Housing Division in the event that the insurance policy or bond coverage expires or is limited, revoked or canceled.
D. On January 1st of each year, the Court shall make available to the bailiffs and the public its list of insured and/or bonded movers who have met the above requirements.
6.105 MOVERS’ PRIVILEGE/PENALTIES
A. A movers’ inclusion on the annual list is a courtesy or privilege extended by the Cleveland Municipal Court’s Housing Division. The mover’s status may be revoked or terminated after hearing, if it comes to the Court’s attention that the party or the mover has abused his/her position, has falsified any documents or given false testimony, has failed to maintain his/her required insurance policy or bond coverage, or has failed to abide by the Court’s guidelines for movers. These issues may be raised on the Court’s own motion or upon motion of a party.
B. If after notice and hearing, the Cleveland Municipal Court Housing Division has been presented with credible evidence that a mover has abused his/her position, falsified any documents or given false testimony, has failed to maintain his/her required insurance policy or bond coverage, or has failed to abide by the Court’s guidelines for movers, then thereafter that mover will be stricken from the then current annual list and barred from inclusion for the subsequent year.
6.11 ENFORCEMENT OF FIRST CAUSE JUDGMENT: WRITS, MOVE-OUTS, AND SALES IN MANUFACTURED HOME EVICTIONS
A. If judgment is for the plaintiff on the First Cause (possession) in an eviction action involving a manufactured home, mobile home or recreational vehicle (“home or vehicle”), the plaintiff in the request for writ must identify whether plaintiff seeks a writ of restitution under R.C. 1923.13(A) or a writ of execution under R.C. 1923.13(B).
B. Writs in manufactured home evictions shall be subject to the timeliness requirements set forth in Local Rule 6.10(B).
6.111 REDEMPTION OF HOME OR VEHICLE PRIOR TO ISSUANCE OF WRIT
A. At any time prior to the issuance of the writ of execution, the titled owner of the home or vehicle may file a motion with the Court seeking an order allowing for the removal of the home or vehicle from the manufactured home park or other place of storage.
B. The titled owner shall attach to the motion evidence that all of the following have been paid:
1. All outstanding tax liens on the home or vehicle; and
2. All court cost assessed against the defendant in the underlying action, unless the owner is indigent.
C. If it is determined that the titled owner paid, or caused to be paid, the items listed in subsection B of this Rule, the Court may issue an order allowing the titled owner to remove the home or vehicle from the manufactured home park or other place of storage.
6.112 PROCEDURE FOR WRITS ISSUED UNDER R.C. 1923.13(B)
A. Prior to filing the request for writ under R.C. 1923.13(B), the plaintiff shall conduct, or cause to be conducted, a search of the public records that relate to the home or vehicle, and make, or caused to be made, reasonably diligent inquiries, for the purpose of identifying any persons who have an outstanding right, title, or interest in the home or vehicle.
B. Request For Writ
1. If plaintiff seeks a writ pursuant to R.C. 1923.13(B), plaintiff must file a request for a writ of execution with the Cleveland Municipal Clerk of Court. The request shall be in the form of a motion.
2. 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 its request for the writ of execution.
C. Praecipe
1. 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.
2. Concurrent with the filing of the praecipe for writ of execution under R.C. 1923.13(B), plaintiff shall deposit with the Clerk a sum of $200.00 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.
D. Certification
1. 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 fourteen (14) 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.
2. If plaintiff seeks a writ of execution pursuant to R.C. 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 one (1) year of the date of the eviction of the resident from the manufactured home park pursuant to a judgment entered under section R.C. 1923.09 or R.C. 1923.11.
6.113 MOVE OUTS
A. From the time of the entry of judgment for the plaintiff on the first cause of action, until issuance of the writ of execution, plaintiff shall allow defendant access to the home or vehicle at reasonable times to retrieve defendant’s personal property and vehicles (i.e. automobiles, vans, etc.) from the manufactured home park.
B. Upon issuance of the writ of execution, the bailiff, at the bailiff’s option, may cause the home or vehicle of the defendant to be removed from the manufactured home park and, if necessary, moved to a storage facility of the bailiff’s choice, or to be retained at its current location, until it is claimed by defendant or disposed of in a manner authorized by R.C. 1923.14(B)(3) or (4).
C. Upon issuance of the writ of execution, the bailiff may cause any remaining personal property and vehicles (i.e. automobiles, vans, etc.) belonging to defendant to be stored at a storage facility of the bailiff’s choice for no less than thirty (30) days at plaintiff’s cost.
6.114 REDEMPTION OF HOME OR VEHICLE AFTER ISSUANCE OF WRIT
A. At any time after the issuance of the writ of execution, the titled owner of the home or vehicle may file a motion with the Court seeking an order allowing for the removal of the home or vehicle from the manufactured home park or other place of storage up to the day before the scheduled sale, destruction, or transfer of the home or vehicle.
B. The titled owner must attach to the motion evidence that all of the following have been paid:
1. All costs for moving and storage of the home or vehicle and all costs incurred by the bailiff up to and including the date of the removal of the home or vehicle;
2. All outstanding tax liens on the home or vehicle;
3. Unless the owner is indigent, all unpaid court costs assessed against the defendant in the underlying action.
C. If it is determined that the titled owner has paid all items listed in B, the Court may issue an order permitting the removal of the home or vehicle from the manufactured home park.
6.115 SALE OF MANUFACTURED HOME OR VEHICLE
Sale of the home or vehicle shall be conducted in accordance with these rules and R.C. Chapter 2329.
6.1151 COMMENCEMENT OF SALE
As soon as practicable but no later than sixty (60) days after receiving a writ of execution, the bailiff shall commence proceedings for the sale of the home or vehicle that is the subject of the writ in accordance with the procedures for the sale of goods on execution under R.C. Chapter 2329.
A. Prior to the sale, the bailiff shall cause the home or vehicle to be appraised by three (3) disinterested persons selected by the Court. The appraisals shall be submitted to the bailiff in writing.
B. The appraisals shall be averaged, to compute the appraised value.
C. Should an appraisal be made valuing the property at a value less than zero dollars, that appraisal, for purposes of determining the appraised value, shall be considered to be zero dollars.
6.1153 VALUE OF HOME OR VEHICLE LESS THAN $3,000.00
A. If the home or vehicle is determined to be abandoned, and the appraised value of the home or vehicle is less than Three Thousand Dollars ($3000.00), within ten (10) days after the determination that the value of the home or vehicle is under Three Thousand Dollars ($3000.00), the bailiff shall serve upon all persons who are listed on the writ as having an outstanding right, title or interest at their respective last known addresses, a written notice of action.
B. No sooner than ten (10) days after the service of the notice, the bailiff shall:
1. Proceed with sale; or
2. If there is no outstanding right, title, or interest in it:
a. cause the destruction of the home or vehicle; or
b. present the writ of execution to the Clerk for the issuance by the Clerk of a Certificate of Title transferring the title of the home or vehicle to the plaintiff, free and clear of all security interests, liens, and encumbrances.
A. The bailiff shall serve upon all persons who are listed on the writ of execution as having any outstanding right, title, or interest in the home or vehicle at their respective last known address, a written notice of the date, time, and place of the sale.
B. In addition to written notice, the bailiff shall give public notice of the date, time and place of sale for at least ten (10) days before the day of sale in a newspaper of general circulation within Cuyahoga County.
The sale shall be at public auction, unless the Court, for good cause shown, on application of either party and after notice to the opposing party, makes an order directing the bailiff to sell the home or vehicle at private sale.
6.1156 RETURN OF WRIT OF EXECUTION
Upon completion of the sale of the home or vehicle as described above, the bailiff shall return the writ to the court. The return shall contain the date of sale, the conditions of sale (e.g. public or private), the sale price, and the name and address of the purchaser.
6.1157 TRANSFER OF CERTIFICATE OF TITLE
Upon the return of the writ of execution, if the Court finds that the sale was made in conformity with R.C. Chapters 1923 and Chapter 2329, the Court shall issue an order directing the Clerk to make an entry on the journal that the Court is satisfied with the legality of the sale and to issue a certificate of title, free and clear of all security interests, liens, and encumbrances, to the purchaser of the home or vehicle.
6.1158 FAILURE OF SALE DUE TO WANT OF BIDDERS
If the home or vehicle cannot be sold due to want of bidders after being offered for sale on two (2) occasions, the bailiff shall present the writ of execution unsatisfied to the Clerk for issuance by the Clerk of a certificate of title transferring the title of the home or vehicle to plaintiff, free and clear of all security interests, liens, and encumbrances.
6.1159 DISTRIBUTION OF PROCEEDS OF SALE
A. The bailiff shall distribute the proceeds from the sale of the home or vehicle in the order of priority set forth in R.C. 1923.14(B)(3).
B. The bailiff shall distribute the proceeds of the sale within thirty (30) days after completion of the sale unless, upon motion and for good cause shown, the period is extended by the Court.
C. After distributing the proceeds of the sale the bailiff shall report any remaining money as unclaimed funds pursuant to R.C. 169.
6.12 SECOND CAUSE DEFAULT HEARINGS (MONEY CLAIMS)
Upon the filing of an eviction action, the Clerk shall schedule a default hearing on the Second Cause (claim for money damages), if applicable.
The default hearing shall be set for twenty-eight (28) days from the date of the First Cause hearing.
If the defendant appears at the First Cause hearing, the defendant will be notified in court of the default hearing date for the Second Cause.
6.123 ANSWER, APPEARANCE OF DEFENDANT
If the defendant files an answer, or other responsive pleading, to the complaint, the case shall be taken off the Second Cause default docket and set for a pretrial. If the defendant appears at the Second Cause default hearing to contest the claim for money damages, for good cause shown, the Court may grant the defendant leave to plead and set the matter for a pretrial.
6.124 DEFAULT JUDGMENTS
No judgment shall be entered in default cases except upon sworn testimony, given before the Court, by a witness with first hand personal knowledge. In addition, such judgment shall not exceed in amount the amount as stated in the prayer. See Civ.R. 54(C).
