(a) Claim for possession of property. A plaintiff may seek an order to obtain possession of specific personal property as follows: Petition. The plaintiff shall file a petition stating:
(1) Plaintiff is the owner or the person lawfully entitled to the possession, the specific property and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held by an officer under legal process who has refused delivery on demand; and
(4) the estimated value of the property.
(b) Prejudgment possession of property. A plaintiff may seek an order to obtain immediate possession of specific personal property, before judgment as follows: Petition. The plaintiff shall file a petition signed under penalty of perjury stating:
(1) Plaintiff is the owner or the person lawfully entitled to the possession, the specific property, and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held by an officer under legal process who has refused delivery on demand; and
(4) the estimated value of the property.
(c) Hearing; notice, bond. After filing the petition, the plaintiff may apply to the court for an order for the delivery of the property prior to judgment on the merits of the case.
(1) The application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, state with particularity the grounds therefor and set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuant to K.S.A. 61-3001 through 61-3006, and amendments thereto.
(3) After a hearing and presentation of evidence on plaintiff's motion, and if the judge is satisfied as to the probable validity of plaintiff's claim and that delivery of the property to the plaintiff is in the interest of justice and will properly protect the interests of all the parties, the judge may enter or cause to be entered an order for the delivery of the property to the plaintiff.
(4) Prior to the issuance of the order for delivery of the property, the plaintiff shall file a bond with the clerk of the court.
(d) Bond; contents, insufficiency.
(1) The bond shall be executed by the plaintiff and one or more sufficient sureties in a sum double the amount of the fair market value of the property, as determined by the judge, or such lesser amount as shall be approved by an order of the judge.
(2) The bond shall be to the effect that the plaintiff shall duly prosecute the action, and pay all costs and damages that may be awarded against the plaintiff, and that if the plaintiff is given possession of the property the plaintiff will return it to the defendant if it be so adjudged. If the bond shall be found to be sufficient, the judge shall approve the same and note approval thereon.
(3) The defendant may challenge the sufficiency of the bond as provided in subsection (b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right to take possession of the property, prior to taking possession of the property.
(e) Replevin; without hearing, notice. Notwithstanding the foregoing provisions of this section, the judge may enter or cause to be entered the order for delivery of property after an ex parte hearing and without notice to and the opportunity for a hearing by the defendant, if the judge is satisfied as to the probable validity of the following additional allegations to be contained in plaintiff's petition:
(1) Possession of the property by the plaintiff is directly necessary to secure an important governmental or general public interest; and
(2) there is a special need for very prompt action due to the immediate danger that the defendant will destroy or conceal the property.
(f) Property in custodia legis. If the property is in the custody of an officer under any legal process, it shall nevertheless be subject to replevin under this section, but if the same is in the custody of any officer under any process issued out of a judicial proceeding, the petition and bond shall be filed in the same proceeding out of which such process issued.
(g) Order for delivery of property. The order for the delivery of the property to the plaintiff shall be delivered to the appropriate officer or person authorized to serve process of any county in the state in which the property is located. The order shall state the names of the parties, the description of the property and the value as set out in plaintiff's petition, or as found by the court at the hearing on plaintiff's application pursuant to subsection (c). The order shall command the appropriate officer to take immediate possession of the property and deliver it to the plaintiff and make return of the order on the day named therein.
(h) Execution of order, return. (1) In the execution of the order the officer may break open any building or enclosure in which the property is located, if the officer cannot otherwise obtain possession of the property or entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession of the property described therein, and serving a copy on the person charged with the order of delivery in the same manner as for personal or resident service if the person can be found in the county.
(3) The return day of the order of delivery shall be 10 days after it is issued, if the order is executed within the county where the court is situated. In all other cases, the return day shall be 20 days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order. Upon inspection of the property the plaintiff may abandon their right to prejudgment possession and shall so advise the appropriate officer and the court.
(i) Perishable goods. When property shall be actually seized which is likely to perish or to materially depreciate in value or threatens to decline speedily in value before the probable termination of the suit, or the keeping of which would be attended with unreasonable loss or expense, the court may order the same to be sold on such terms and conditions as the judge may direct, by the person having charge of the property, and a return of the proceedings thereon shall be made by the person at a time to be fixed by the judge.
(j) Redelivery, bond. The defendant, after service of a copy of the delivery order, may apply to the court for redelivery of the property. The court shall order return of the property to the defendant when the defendant files a bond with the clerk of the court, in an amount equal to the plaintiff's bond, executed by the defendant with one or more sufficient sureties. The bond shall be to the effect that the defendant will deliver the property to the plaintiff if so adjudged, and will pay all costs and damages that may be adjudged against the defendant. If the bond shall be found to be sufficient, the judge shall approve the same and note approval thereon. If the defendant is a public officer, board or government agency, such officer, board or agency, in lieu of giving a redelivery bond, may retain possession of the property seized by filing with the clerk a response certifying that the public health, safety or welfare would be jeopardized or impaired if the plaintiff acquired possession of the property prior to final judgment, in which case hearing may be had on the issue of public interest at the instance of any party.
(k) Judgment in action. (1) In an action to recover the possession of personal property, judgment for the plaintiff may be for possession or for the recovery of possession, or the value thereof in case a delivery cannot be had, and for damages for the detention. If the property has been delivered to the plaintiff and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.
(2) In addition to other orders, the court may direct an appropriate officer to put the party entitled to possession in possession of the property.
History: L. 2000, ch. 161, § 73; Jan. 1, 2001.
(a) Petition. The plaintiff shall file a petition signed under penalty of perjury stating:
(1) The plaintiff is the secured creditor of the defendant;
(2) the instrument of indebtedness or the terms thereof;
(3) the amount of the indebtedness owed;
(4) the security agreement or the terms thereof;
(5) a description of the personal property;
(6) that plaintiff is lawfully entitled to the foreclosure of the specific personal property;
(7) the estimated value of each item of personal property; and
(8) the defendant is no longer entitled to possess the property.
(b) Prejudgment possession; hearing, notice, bond. After filing the petition, the plaintiff may apply to the court for an order for the delivery of the property before judgment.
(1) The application to the court for an order of delivery shall be by motion which, unless made during a hearing or trial, shall be made in writing, state with particularity the grounds therefor and set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuant to K.S.A. 61-3001 through 61-3006, and amendments thereto.
(3) After a hearing and presentation of evidence on the plaintiff's motion, if the judge is satisfied as to the probable validity of the plaintiff's claim and that delivery of the property to the plaintiff is in the interest of justice and will properly protect the interests of all the parties, the judge may enter or cause to be entered an order for the delivery of the property to the plaintiff.
(4) Prior to the issuance of the order for delivery of the property, the plaintiff shall file a bond with the clerk of the court.
(c) Bond, contents, insufficiency. (1) The bond shall be executed by the plaintiff and one or more sufficient sureties in a sum double the amount of the fair market value of the property, as determined by the judge, or such lesser amount as shall be approved by an order of the judge.
(2) The bond shall be to the effect that plaintiff shall duly prosecute the action, and pay all costs and damages that may be awarded against the plaintiff, and that if the plaintiff is given possession of the property the plaintiff will return it to the defendant if it be so adjudged. If the bond shall be found to be sufficient, the judge shall approve the same and note approval thereon.
(3) The defendant may challenge the sufficiency of the bond as provided in subsection (b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right to take possession of the property, prior to taking possession of the property.
(d) Execution of order, return. (1) In the execution of the order the officer may break open any building or enclosure in which the property is located, if the officer cannot otherwise obtain possession of the property or entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession of the property described therein, and serving a copy on the person charged with the order of delivery in the same manner as for personal or resident service if the person can be found in the county.
(3) The return day of the order of delivery shall be 10 days after it is issued, if the order is executed within the county where the court is situated. In all other cases, the return day shall be 20 days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order. Upon inspection of the property the plaintiff may abandon their right to prejudgment possession and shall so advise the appropriate officer and the court.
(e) Perishable goods. When property shall be actually seized which is likely to perish or to materially depreciate in value or threatens to decline speedily in value before the probable termination of the suit, or the keeping of which would be attended with unreasonable loss or expense, the court may order the same to be sold on such terms and conditions as the judge may direct, by the person having charge of the property, and a return of the proceedings thereon shall be made by the person at a time to be fixed by the judge.
(f) Redelivery, bond. The defendant, after service of a copy of the delivery order, may apply to the court for redelivery of the property. The court shall order return of the property to the defendant when the defendant files a bond with the clerk of the court, in an amount equal to the plaintiff's bond, executed by the defendant with one or more sufficient sureties. The bond shall be to the effect that the defendant will deliver the property to the plaintiff if so adjudged, and will pay all costs and damages that may be adjudged against the defendant. If the bond shall be found to be sufficient, the judge shall approve the same and note approval thereon. If the defendant is a public officer, board or government agency, such officer, board or agency, in lieu of giving a redelivery bond, may retain possession of the property seized by filing with the clerk a response certifying that the public health, safety or welfare would be jeopardized or impaired if the plaintiff acquired possession of the property prior to final judgment, in which case a hearing may be had on the issue of public interest at the instance of any party.
(g) Possession in third party. When the officer finds the property in possession of a person other than a defendant and deems it advisable to leave such person in possession, the officer shall declare to the person in possession that such person shall hold such property in such person's possession, subject to the further order of the court, and shall summon such person as a garnishee by serving upon such person a copy of the order which directs the officer to take immediate possession of the property. The court may require of such person in possession an undertaking with good and sufficient sureties in such sum as the court deems sufficient. The undertaking shall be to the effect that such person will deliver the property to the officer at the time and place fixed for sale, if such be ordered by the court. The officer shall give such person written notice of the time and place fixed for the sale by delivery in person or by restricted mail.
(h) Property claimed by third person. If the officer, before proceeding, may require the possession of, or be requested by the plaintiff to take possession of, personal property claimed by any person other than a defendant, the court may require the plaintiff to give the court an undertaking with good and sufficient sureties to pay all costs and damages that the officer may sustain by reason of the execution of such order.
(i) Judgment. Judgment for the plaintiff shall be for a money judgment and foreclosure of the security interest, and the plaintiff may proceed to foreclose the security interest in accordance with the terms of the security agreement covering the property, as governed by the provisions of the uniform commercial code, unless the court otherwise directs. If the court directs the plaintiff to proceed to enforce such plaintiff's judgment other than pursuant to the security agreement, and if the judgment is not satisfied within 10 days thereafter, then the clerk shall issue an order of special execution directed to the appropriate officer to sell the property in accordance with K.S.A. 61-3703, and amendments thereto. If the property is not then in the possession of the officer, the order shall also direct the person having possession to deliver such property to the officer. If the property has been delivered to the officer, and the defendant claims a return thereof, judgment shall be for the defendant or a return of the property and damages for the taking and withholding of same.
History: L. 2000, ch. 161, § 74; Jan. 1, 2001.
(b) If the personal property to be sold shall consist of more than one item of property, the appropriate officer conducting such sale shall sell only so much of the personal property in the officer's custody as is necessary to satisfy the judgment, interest and costs, and shall return the balance of any property remaining unsold to the defendant by notifying the defendant of the time and place when same may be obtained.
(c) Neither the officer conducting the sale nor any other member of the officer's staff may bid at any such sale.
(d) The provisions of K.S.A. 60-2411, and amendments thereto, relating to advancement of printer's fees shall apply to this section.
History: L. 2000, ch. 161, § 75; Jan. 1, 2001.
History: L. 2000, ch. 161, § 76; Jan. 1, 2001.
(1) To the court costs of the action including the officer's expenses and cost of publication;
(2) in accordance with the provisions of K.S.A. 60-2406, and amendments thereto;
(3) in satisfaction of all judgments rendered in the action against the defendant or the property in accordance with the priority determined by the court;
(4) any surplus shall be paid to the defendant, except that if any other security interest holder, subsequent to the entering of the judgment of foreclosure, files with the clerk of the court a written notification of demand furnishing reasonable proof of the security interest holder's interest, the clerk shall withhold any payment to the defendant. Such security interest holder shall serve the defendant with notice of the demand within 10 days after such filing and furnish proof of such notice to the court.
(b) If the defendant does not, within 10 days, notify the clerk in writing that the defendant takes exception to the demand of such security interest holder, the clerk shall apply the surplus to the demand and pay any balance to the defendant.
(c) If the defendant, within 10 days, notifies the clerk in writing that the defendant takes exception to the demand, the clerk shall withhold all surplus in the clerk's possession for a period of 30 days. If the security interest holder has not commenced a separate action to recover the security interest holder's claim and garnished the clerk within the time, the clerk shall pay the surplus to the defendant.
History: L. 2000, ch. 161, § 77; Jan. 1, 2001.