Session of 1999
HOUSE BILL No. 2332
By Committee on Judiciary
2-9
9 AN ACT concerning the code of civil procedure; relating to writs of ex-
10 ecution upon property; service of notice; form.
11
12 Be it enacted by the Legislature of the State of Kansas:
13 Section 1. (a) If a general execution is issued, a notice shall be served
14 on the defendant along with the writ of execution, notifying the defendant
15 of the following:
16 (1) That a general execution has been issued directing an officer to
17 seize any nonexempt property of the defendant to be sold in satisfaction
18 of the judgment against the defendant;
19 (2) of the defendant's right to assert any claim of exemption allowed
20 under the law with respect to the property seized; and
21 (3) of the defendant's right to a hearing on such claim.
22 The notice shall be substantially in the form or forms prescribed in the
23 appendix to this act, and shall contain a description of the exemptions
24 that are applicable to general executions and the procedure by which the
25 defendant can assert any claim of exemption. The return filed with the
26 writ of execution shall indicate that a copy of the notice was served on
27 the defendant along with the writ.
28 (b) If the defendant requests a hearing to assert any claim of exemp-
29 tion, the request shall be filed no later than 10 days following the date
30 the notice is served on the defendant. If a hearing is requested, the hear-
31 ing shall be held by the court no sooner than 5 days nor later than 10
32 days after the request is filed. At the time the request for hearing is filed,
33 the defendant shall obtain from the clerk or court the date and time for
34 the hearing which shall be noted on the request form. Immediately after
35 the request for hearing is filed, the defendant shall hand-deliver to the
36 plaintiff or plaintiff's attorney, if plaintiff is represented by an attorney,
37 or mail to the plaintiff or plaintiff's attorney, if plaintiff is represented by
38 an attorney, by first-class mail at the plaintiff's, or plaintiff's attorney's,
39 last known address, a copy of the request for hearing.
40 (c) If a hearing is held, the defendant shall have the burden of proof
41 to show that some or all of the property subject to the execution is exempt,
42 and the court shall enter an order determining the exemption and such
43 other order or orders as is appropriate.
HB 2332
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1 New Sec. 2. The appendix of forms following K.S.A. 60-269 is hereby
2 amended by adding thereto a new form as follows:
3 Form No. 29: NOTICE TO DEFENDANT WHERE WRIT OF GENERAL
4 EXECUTION ISSUED
5 In the District Court of ________ County, Kansas
6 A.B., Plaintiff,
7 v.
8 C. D., Defendant, Case No. ________
9 and
10 E. F., Garnishee
11 TO BE SERVED ON THE DEFENDANT WITH THE WRIT OF EXECUTION.
12 NOTICE TO DEFENDANT
13 (General Execution)
14 You are hereby notified that the court has issued an order called a writ of execution in the
15 above case in favor of (name and address of plaintiff), the plaintiff in this proceeding,
16 directing that any of your property which is not exempt under the law be used to satisfy
17 your debt to the plaintiff. This order was issued to enforce the judgment obtained by the
18 plaintiff against you in this case on (date).
19
20 The law of Kansas and the United States provides that certain property cannot be taken
21 from you to pay a debt. Such property is commonly referred to as exempt property. Ex-
22 amples of exempt property which cannot be attached or executed upon by a creditor are:
23 (1) Social Security disability and retirement benefits;
24 (2) Supplemental Security Income (SSI) benefits;
25 (3) Veteran's benefits;
26 (4) Black lung benefits;
27 (5) Cash assistance payments under the Temporary Assistance for Families (TAF)
28 program;
29 (6) Cash assistance payments under the General Assistance (GA) program;
30 (7) Unemployment compensation payments;
31 (8) Workers compensation payments;
32 (9) Certain pension benefits and retirement funds, including KPERS;
33 (10) Furnishings, equipment and supplies in your possession and reasonably necessary
34 at your principal residence;
35 (11) Personal jewelry and other ornaments up to $1,000 in value;
36 (12) One vehicle regularly used for transportation up to $20,000 in value;
37 (13) Tools and equipment used in your principal trade or business up to $7,500 in value;
38 (14) Homestead (usually, your residence).
39 This is not an exclusive list. Other state and federal exemptions may apply to you. Certain
40 exemptions may not apply to support orders or to back taxes. These exemptions generally
41 apply only to persons and not to entities such as corporations. An attorney can assist you in
42 determining which of your property is exempt.
43
HB 2332
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1 If you believe that the property which has been taken is exempt and should not be given to
2 the plaintiff, you may request a hearing before the court to assert this claim. In order to
3 request a hearing, you should fill out the form at the bottom of this notice and obtain from
4 the clerk or court a date and time for the hearing, and file the form with the clerk at (address
5 of court). Immediately after the request for hearing is filed, you shall hand-deliver a copy
6 of the request for hearing to the plaintiff or plaintiff's attorney, if the plaintiff is represented
7 by an attorney, or mail a copy of the request for hearing to the plaintiff or the plaintiff's
8 attorney, if the plaintiff is represented by an attorney, by first-class mail at the plaintiff's, or
9 plaintiff's attorney's, last known address. You should ask for this hearing as soon as possible,
10 but no later than 10 days after this notice is served on you. If you ask for a hearing to claim
11 that your money or property is exempt, the court will hold a hearing within 10 days after it
12 receives your request. At the hearing you should present any evidence you have to show
13 that your property is exempt. The burden is on you to prove that some or all of your property
14 subject to the execution is exempt. You may wish to consult an attorney to represent you at
15 this hearing.
16 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
17 (Name and address of court)
18 Case No. ________
19 REQUEST FOR HEARING
20 I request a hearing because the property which is being seized by the plaintiff is exempt
21 because it is
22
.
23 (reason property is exempt)
| 24 |
| |
|
| 25 | Name of Defendant | | Signature of Defendant |
| 26 |
| |
|
| 27 | Address | | Date |
28 City, State, Zip Code
29 ____________________
30 Telephone No.
31 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
32 THIS PART SHALL BE COMPLETED BY CLERK:
33 The hearing requested shall be held on the ______ day of
, __, at
34 (day)
35 (month)
36 (year)
37 ________ o'clock ________.
38 (time)
39 (am or pm)
40 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
41 Certificate of Service
42 I delivered a copy of the above request for hearing to the plaintiff or plaintiff's attorney,
43 if the plaintiff is represented by an attorney, by hand-delivery or first-class mail in the
44 following manner and at the following address, on the date shown below:
HB 2332
4
1 ________________________________________
2 (name of plaintiff or plaintiff's attorney
3 ________________________________________
4 (address of plaintiff or plaintiff's attorney)
5 ________________________________________
6 ________________________________________
7 (manner delivered -- hand-delivery or first-class mail)
8 ______________________________
9 (date delivered)
10
11 Signature of Defendant
12 Sec. 3. This act shall take effect and be in force from and after its
13 publication in the statute book.