ICLE Homepage | Other New and Amended
MCRs
September 12, 2001
99-25
New Rule 3.106 and
Amendment of Rules
4.201 and 4.202 of the
Michigan Court Rules
________________________
On order of the Court, notice of the proposed changes and
an opportunity for comment in writing and at a public hearing
having been provided, and consideration having been given to the
comments received, new Rule 3.106 and the following amendments of
Rules 4.201 and 4.202 of the Michigan Court Rules are adopted, to
be effective May 1, 2002.
[The following language is added.]
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
Rule 3.106 Procedures Regarding Orders for the Seizure of
Property and Orders of Eviction
(A) Scope of Rule. This rule applies to orders for the seizure of
property and orders of eviction.
(B) Persons Who May Seize Property or Conduct Evictions. The
persons who may seize property or conduct evictions are those
persons named in MCR 2.103(B), and they are subject to the
provisions of this rule unless a provision or a statute specifies
otherwise.
(1) A court may provide that property shall be seized and
evictions conducted only by
(a) court officers and bailiffs serving that court;
(b) sheriffs and deputy sheriffs;
(c) officers of the Department of State Police in an
action in which the state is a party; and
(d) police officers of an incorporated city or village
in an action in which the city or village is a party.
(2) Each court must post, in a public place at the court, a
list of those persons who are serving as court officers or
bailiffs. The court must provide the State Court Administrative
Office with a copy of the list, and must notify the State Court
Administrative Office of any changes.
(C) Appointment of Court Officers. Court officers may be
appointed by a court for a term not to exceed 2 years.
(1) The appointment shall be made by the chief judge. Two or
more chief judges may jointly appoint court officers for their
respective courts.
(2) The appointing court must specify the nature of the court
officer's employment relationship at the time of appointment.
(3) The appointing court must maintain a copy of each court
officer's application, as required by the State Court
Administrative Office.
(4) 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.
(D) Conditions of Service as a Court Officer or Bailiff. Court
officers and bailiffs must
(1) post a surety bond pursuant to MCR 8.204;
(2) provide the names and addresses of all financial
institutions in which they deposit funds obtained under this rule,
and the respective account numbers; and
(3) provide the names and address of those persons who
regularly provide services to them in the seizure of property or
evictions.
(E) Forms. The State Court Administrative Office shall publish
forms approved for use with regard to the procedures described in
this rule.
(F) Procedures Generally.
(1) All persons specified in MCR 2.103(B) must carry and
display identification authorized by the court or the agency that
they serve.
(2) A copy of the order for seizure of property or eviction
shall be served on the defendant or the defendant's agent, or left
or posted on the premises in a conspicuous place. If property is
seized from any other location, a copy of the order shall be mailed
to the defendant's last known address.
(G) Procedures Regarding Orders for Seizure of Property.
(1) Orders for seizure of property shall be issued pursuant
to statute and endorsed upon receipt.
(2) No funds may be collected pursuant to an order for
seizure of property prior to service under subrule (F)(2).
(3) An inventory and receipt shall be prepared 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 parties or their respective
attorneys or agents and posted on the premises in a conspicuous
place; if the property is seized from any other location, a copy
shall be mailed to the nonprevailing party's last known address,
and
(ii) retained by the person who seized the property.
(4) Property seized shall be disposed of according to law.
(5) Within 21 days, and as directed by the court, any money
that is received shall be paid to the court or deposited in a trust
account for payment to the prevailing party or that party's
attorney.
(6) Costs allowed by statute shall be paid according to law.
(a) Copies of all bills and receipts for service shall
be retained for one year by the person serving the order.
(b) Statutory collection fees shall be paid in
proportion to the amount received.
(c) There shall be no payment except as provided by law.
(7) Within 14 days after the expiration of the order or
satisfaction of judgment, whichever is first, the following shall
be filed with the court and a copy provided to the prevailing party
or that party's attorney:
(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, if applicable, or
(c) a report that no collection activity occurred.
(H) Procedures Regarding Orders of Eviction. Copies of all bills
and receipts for services shall be retained by the person serving
the order for one year.
[The present language is amended as indicated below.]
Rule 4.201 Summary Proceedings to Recover Possession of
Premises
(A)- (F) [Unchanged.]
(G) Claims and Counterclaims.
(1) Joinder.
(a) - (c) [Unchanged.]
(d) If trial of a money claim or counterclaim
(i) might substantially delay trial of the
possession claim, or
(ii) requires that the premises be returned before
damages can be determined,
the court must adjourn the trial of the money claim
or counterclaim to a date no later than 28 days after the time
expires for issuing [a writ of restitution] an order of
eviction. A party may file and serve supplemental pleadings
no later than 7 days before trial, except by leave of the court.
(e) If adjudication of a money counterclaim will affect
the amount the defendant must pay to prevent issuance of [a writ
of restitution] an order of eviction, that counterclaim
must be tried at the same time as the claim for possession,
subrules (G)(1)(c) and (d) notwithstanding, unless it appears to
the court that the counterclaim is without merit.
(2) [Unchanged.]
(H) - (J) [Unchanged.]
(K) Judgment.
(1) Requirements. A judgment for the plaintiff must
(a) [Unchanged.]
(b) state when, and under what conditions, if any, [a
writ of restitution] an order of eviction will issue;
(c) - (d) [Unchanged.]
(2) [Unchanged.]
(3) Partial Payment. The judgment may provide that
acceptance of partial payment of an amount due under the judgment
will not prevent issuance of [a writ of restitution] an
order of eviction.
(4) [Unchanged.]
(5) Notice. The court must mail or deliver a copy of the
judgment to the parties. The time period for applying for the
[writ of restitution] order of eviction does not
begin to run until the judgment is mailed or delivered.
(L) [Writ of Restitution] Order of Eviction.
(1) Request. When the time stated in the judgment expires,
a party awarded possession may apply for [a writ of
restitution] an order of eviction. The application
must:
(a) - (d) [Unchanged.]
(2) Issuance of Order of Eviction and Delivery
of Order. Subject to the provisions of subrule (L)(4), the order
of eviction shall be delivered to the person serving the order for
service within 7 days after the order is filed.
([2]3) Issuance Immediately on Judgment. The
court may issue [a writ] an order 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]
order.
The court may condition the [writ] order 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] an order of eviction may not
(a) - (b) [Unchanged.]
([4]5) Acceptance of Partial Payment. [A writ
of restitution] An order of eviction 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] an order of
eviction.
(M) Postjudgment Motions. Except as provided in MCR 2.612,
any 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] the court may not grant a stay unless
(a) the motion is accompanied by an
escrow deposit of 1 month's rent, or [to stay the writ of
restitution;]
(b) the court is satisfied that there are grounds
for relief under MCR 2.612(C), and issues an order that waives
payment of the escrow; such an order may be ex parte.
If a stay is granted, a hearing shall be held within 14
days after it is issued.
(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] an order
of eviction issued but not executed.
(N) Appeals From Possessory Judgments.
(1) [Unchanged.]
(2) [Unchanged.]
(3) Stay of [Writ of Restitution] Order of
Eviction.
(a) Unless a stay is ordered by the trial court, [a
writ of restitution] an order of eviction must issue as
provided in subrule (L).
(b) The filing of a claim of appeal together with a bond
or escrow order of the court stays all proceedings, including [a
writ of restitution] an order of eviction issued but not
executed.
(4) [Unchanged.]
(O) Objections to Fees Covered by Statute for Orders
of Eviction. 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 order,
(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 order of eviction.
Rule 4.202 Summary Proceedings; Land Contract Forfeiture
(A) - (J) [Unchanged.]
(K) [Writ of Restitution] Order of Eviction.
(1) Request. When the time stated in the judgment expires,
a party awarded possession may apply for [a writ of
restitution] an order of eviction. The application
must:
(a) - (d) [Unchanged.]
(2) Hearing Required if Part of Judgment Has Been Paid. [A
writ of restitution] An order of eviction may not be
issued if any part of the amount due under the judgment has been
paid unless a hearing has been held after the defendant has been
given notice and an opportunity to appear.
(L) [Unchanged.]
Staff Comment: The September 12, 2001 addition of
MCR 3.106, effective May 1, 2002, was recommended by an ad hoc
committee of judges, court administrators, court clerks, attorneys,
and court officers. The rule incorporated existing practice while
protecting against abuses. The September 12, 2001 amendments of
MCR 4.201 and 4.202, effective May 1, 2002, made changes consistent
with new 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.
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