March 7, 2000



99-25



Proposed New Rule 3.106 and
Proposed Amendment of Rule
4.201 of the Michigan Court
Rules
_____________________________


          On order of the Court, this is to advise that the Court
is considering a new Rule 3.106 and amendment of Rule 2.401 of the
Michigan Court Rules.  Before determining whether the proposals
should be adopted, changed before adoption, or rejected, this
notice is given to afford any interested person the opportunity to
comment on the form or the merits of the proposals.  We welcome the
views of all who wish to address the proposals or who wish to
suggest alternatives.  Before adoption or rejection, these
proposals will be considered at a public hearing by the Court.  The
Clerk of the Court will publish a schedule of future public
hearings.

          As whenever this Court publishes an administrative
proposal for comment, we emphasize that publication of these
proposals does not mean that the Court will issue an order on the
subject, nor does it imply probable adoption of the proposals in
their present form.

[The following language would be added.]

ICLE Editor's Note:

Rule 3.106  Procedures Regarding the Seizure of Property (Writs
     of Execution) and Evictions (Writs of Restitution)

(A)    Scope of Rule.  This rule applies to writs of execution
     and orders of eviction.

(B)    Court Officers.  Persons who may seize property are those
     persons named in MCR 2.103(B), and they are referred to in
     this rule as court officers.  For the purpose of acts
     contemplated by this rule, court officers shall be deemed
     independent contractors unless a local administrative order
     provides otherwise.

(C)    Qualifications of Court Officers.  Court officers, except 
     those whose qualifications are set by statute, shall be
     appointed for a term not to exceed 2 years.

(1)    Court officers shall be appointed by the chief
     judge.  Two or more chief judges may jointly appoint
     court officers for their respective courts.  In district
     courts having multiple divisions, court officers shall be
     appointed by the presiding judge of each division.  

(2)    The State Court Administrative Office shall develop
     a  procedure for the appointment and supervision of court
     officers, including a model application form. 
     Considerations shall include, but are not limited to, an
     applicant's character, experience, and references.

(3)    The appointing court must maintain a copy of each
     application, provide the State Court Administrative
     Office with a list of those persons who are appointed as
     court officers, and notify the State Court Administrative
     Office of subsequent changes.

(4)    As a condition of appointment, a court officer
     shall

(a)    post a surety bond pursuant to MCR 8.204,

(b)    obtain court approval of the employees and
     contractors who assist the court officer in the
     seizure of property or evictions, and

(c)    provide the names and addresses of all
     financial institutions in which the court officer
     deposits funds obtained under this rule, and the
     respective account numbers.

(5)    A court may limit service of writs of execution and
     orders of eviction to court officers appointed by the
     court.

(D)    Forms.  The State Court Administrator shall publish forms
     approved for use with regard to the procedures described in
     this rule.

(E)    Procedures Regarding the Issuance and Service of Writs of
     Execution.

(1)    Writs of execution shall be issued pursuant to
     statute and shall be endorsed by the court officer upon
     receipt.

(2)    No funds may be collected pursuant to a writ prior
     to service.

(3)    A court, in its discretion, may limit the hours in
     which property may be seized.

(F)    Procedures Regarding Collection.

(1)    A court officer shall carry and display
     identification issued by the court.

(2)    A copy of the writ shall be served on the defendant
     or the defendant's agent, or left or posted on the
     premises in a conspicuous place.

(3)    A court officer shall prepare an inventory and
     receipt, upon seizure of property or payment of
     funds.

(a)    The original shall be filed with the court,
     within 7 days of the seizure or payment. 

(b)    A copy shall be

 (i)   provided to the plaintiff,

(ii)   provided to the defendant or the
     defendant's  agent, or posted on the premises
     in a conspicuous place, and

(iii) retained by the court officer.

(G)    Disposition of Property and Money; Costs; Fees. 

(1)    Property seized shall be disposed of according to
     law.

(2)    Money received by a court officer that is owed a
     plaintiff shall be paid to the court within 21 days of
     receipt or deposited in the court officer's trust account
     for payment to the plaintiff.

(3)    Costs allowed by statute shall be paid according to
     law.

(a)    A court officer shall retain copies of all
     bills for service required in pursuit of the
     execution of a writ of restitution.

(b)    Fees allowed by statute shall be paid to a
     court officer in proportion to the amount
     collected.

(c)    A court officer shall receive no payment
     except as provided by law.

(H)    Procedures Following Expiration of Writ of Execution.

(1)    Within 14 days of the expiration of the writ, the
     court officer shall file with the court and provide to
     the plaintiff

(a)    a report summarizing collection activities,
     including an accounting of all money or property
     collected,

(b)    a report that collection activities will
     continue pursuant to statute, or

(c)    a report that no collection activity
     occurred.


[The present language would be amended as indicated below.]

Rule 4.201     Summary Proceedings to Recover Possession of
     Premises

(A) - (K)      [Unchanged.]

(L)  Writ of Restitution

(1)  [Unchanged.]

     (2)    Issuance of Order of Eviction and Delivery of Order
          to a Court Officer.  Subject to the provisions of subrule
          (L)(4), the order of eviction shall be delivered to the
          court officer for service within 7 days after the order
          is filed.

([2]3)     Issuance Immediately on Judgment. 
     The court may issue a writ immediately on entering
     judgment if

(a)  the court is convinced the statutory requirements
     are satisfied, and

(b)  the defendant was given notice, before the
     judgment, of a request for immediate issuance of
     the writ.

The court may condition the writ to protect the
defendant's interest.

([3]4)     Limitations on Time for Issuance and
     Execution.  Unless a hearing is held after the defendant
     has been given notice and an opportunity to appear, a
     writ of restitution may not

(a)  be issued later than 56 days after judgment is
     entered,

(b)  be executed later than 56 days after it is issued.

([4]5)     Acceptance of Partial Payment.  A
     writ of restitution may not be issued if any part of the
     amount due under the judgment has been paid, unless

(a)  a hearing is held after the defendant has been
     given notice and an opportunity to appear, or

(b)  the judgment provides that acceptance of partial
     payment of the amount due under the judgment will
     not prevent issuance of a writ of restitution.

(M)  Postjudgment Motions.  Except as provided in MCR 2.612, a
     postjudgment motion must be filed no later than 10 days after
     judgment enters.

(1)     If the motion challenges a judgment for
     possession, it [must be] shall not be scheduled
     for hearing and the order of eviction shall not be stayed
     unless the motion is accompanied by an escrow deposit
     of 1 month's rent [to stay the writ of
     restitution].[; if]

(2)    If the judgment does not include an award of
     possession, the filing of the motion stays proceedings,
     but the plaintiff may move for an order requiring a bond
     to secure the stay.  If the initial escrow deposit is
     believed inadequate, the plaintiff may apply for
     continuing adequate escrow payments in accord with
     subrule (H)(2).  The filing of a postjudgment motion
     together with a bond, bond order, or escrow deposit stays
     all proceedings, including a writ of restitution issued
     but not executed.

(N)    [Unchanged.]

(O)    Objections to Fees Covered by Statute for Writs of
     Restitution.  Objections shall be by motion.  The fee to be
     paid shall be reasonable in light of all the circumstances. 
     In determining the reasonableness of a fee, the court shall
     consider all issues bearing on reasonableness, including but
     not limited to

(1)    the time of travel to the premises,

(2)    the time necessary to execute the writ,

(3)    the amount and weight of the personal property
     removed from the premises,

(4)    who removed the personal property from the
     premises,

(5)    the distance that the personal property was moved
     from the premises, and

(6)    the actual expenses incurred in executing the
     writ.


          Staff Comment:  The proposed addition of MCR 3.106
has been recommended by a committee consisting of judges, court
administrators, court clerks, attorneys, and court officers.  The
rule attempts to incorporate existing practice while protecting
against abuses.  The proposed amendments of MCR 4.201 would effect
changes consistent with newly proposed MCR 3.106.  


The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.  

          _____________________________________________

Publication of this proposal does not mean
that the Court will issue an order on the
subject, nor does it imply probable adoption
in its present form.  Timely comments will be
substantively considered, and your assistance
is appreciated by the Court.                 
          _______________________________________________


          A copy of this order will be given to the secretary of
the State Bar and to the State Court Administrator so that they can
make the notifications specified in MCR 1.201.  Comments on this
proposal may be sent to the Supreme Court clerk by July 1, 2000. 
When filing a comment, please refer to our file No. 99-25.