60-1006.Foreclosure of security interest.A secured party may bring an action in the district court to reduce anindebtedness to a money judgment and to foreclose the security interest inspecific personal property given to secure such indebtedness. The securedparty, at any time before judgment is rendered, may cause the specifiedsecurity to be taken into the possession of the appropriate officer toawait further order of the court under the following procedure:
(a) Affidavit or petition. The plaintiff shall file an affidavit,unless the plaintiff's petition shall have been verified, which in either eventshall show: (1) The instrument of indebtedness or the terms thereof; (2) theamount of the indebtedness owed; (3) the security agreement or the termsthereof; (4) a description of the personal property; (5) that plaintiff islawfully entitled to the foreclosure of the specific personal property; (6) theestimated value of the personal property to the best of plaintiff'sknowledge and belief, and when several articles are claimed, the estimatedvalue of each article shall be so stated; and (7) that the personalproperty is wrongfully detained by the defendant.
(b) Hearing, notice; bond. Except as otherwise provided herein, afterfiling the affidavit or verified petition, the plaintiff shall apply to thecourt for an order for the delivery of the property to the plaintiff in themanner prescribed by subsection (b) of K.S.A. 60-207, and amendments thereto,and the motion made thereunder shall be served upon the defendant pursuant toK.S.A. 60-205, and amendments thereto. After a hearing and presentation ofevidence on plaintiff's motion, and if the judge is satisfied as to theprobable validity of plaintiff's claim and that delivery of the property to theplaintiff is in the interest of justice and will properly protect the interestsof all the parties, the judge may enter or cause to be entered an order for thedelivery of the property as provided in subsection (c).
Notwithstanding the foregoing provisions of this subsection, the judgemay enter or cause to be entered the order for delivery of property afteran ex parte hearing and without notice to and the opportunity for ahearing by the defendant, only if the judge is satisfied as to the probablevalidity of the following allegations to be contained in plaintiff'saffidavit or verified petition:
(1) Possession of the property by the plaintiff is directly necessary tosecure an important governmental or general public interest; and
(2) There is a special need for very prompt action due to the immediatedanger that the defendant will destroy or conceal the property.
In lieu of the foregoing procedure providing for the issuance of anorder for the delivery of the property, the plaintiff may apply to thecourt for a restraining order directed to the defendant, imposing suchconditions and restrictions as the court deems necessary to protect theproperty during the pendency of the action and to protect the court'sjurisdiction over such property. Such restraining order may be issuedwithout the requirement that the plaintiff file a bond as required forissuing an order for the delivery of the property.
Prior to issuance of the order for delivery of the property, theplaintiff shall file with the clerk of the court in which the action isbrought a bond in not less than double the amount of the estimated value ofthe property, as stated in the affidavit or verified petition, or as foundby the court at the hearing on plaintiff's motion, with one or moresufficient sureties. It shall be in favor of the defendant and shall be tothe effect that plaintiff shall duly prosecute the action and pay all costsand damages that may be awarded against the plaintiff, and that if plaintiff isgiven possession of the property the plaintiff will return it to the defendantif it be so adjudged. If the bond shall be found to be sufficient, the judge ofthe district court shall approve the same and note approval thereon. Thedefendant may challenge the sufficiency of the bond in the manner provided insubsection (b) of K.S.A. 60-705, and amendments thereto.
(c) Order. The order shall be delivered to the sheriff of anycounty in the state in which the property is located. The order shall statethe names of the parties, the description of the property and the estimatedvalue as set out in plaintiff's affidavit or verified petition, or as foundby the court at the hearing on plaintiff's motion pursuant to subsection(b). It shall command the sheriff to take immediate possession of theproperty and to keep it until further order of the court, subject to theprovisions of subsections (e), (f) and (g), and to make return of the orderon the day named therein.
(d) Return and execution of order. (1) Obtaining possession. In theexecution of the order the sheriff may break open any building or enclosure inwhich the property is located, if the sheriff cannot otherwise obtainpossession of the property or entrance to the building on demand.
(2) Execution. Such officer shall execute the order bytakingpossession of the property described therein, and by serving a copy on theperson charged with the unlawful detainer. Should the officer be unable toserve the defendant in accordance with the provisions of K.S.A. 60-304, andamendments thereto, but can take possession of the personal property describedin the order, the action may proceed to foreclose the security interest onceservice is made pursuant to K.S.A. 60-307, and amendments thereto.
(3) Perishable goods. When there is actually seized property which islikely to perish or to materially depreciate in value or threatens to declinespeedily in value before the probable termination of the suit, or the keepingof which would be attended with unreasonable loss or expense, the court mayorder the same to be sold by the sheriff on such terms and conditions as thejudge may direct, and a return of the proceedings thereon shall be made by thesheriff at a time to be fixed by the judge.
(4) Return. The time for return of the order of delivery shall beas prescribed by subsection (d) of K.S.A. 60-312, and amendments thereto.
(e) Redelivery bond. The defendant, within 24 hours after service of acopy of the order, may deliver to the sheriff a bond to be approved by thesheriff, in not less than double the amount of the value of the property asstated in the order, with one or more sufficient sureties, and the sheriffshall return the property to the defendant. The bond shall be in favor of theplaintiff and shall be to the effect that the defendant will deliver theproperty to the sheriff if it be so adjudged, and will pay all costs anddamages that may be adjudged against the defendant. The sheriff shall file thebond with the clerk after noting approval thereon. If the defendant does notfile a redelivery bond as provided above, then the sheriff shall deliver theproperty to the custody of the plaintiff, unless the plaintiff directs that theofficer retain possession of the property and deposits sufficient security, asdetermined by the court, to pay the cost of storing such property.
(f) Possession in third party. When the sheriff finds the propertyin possession of a person other than a defendant and deems it advisable toleave such person in possession, the sheriff shall declare to the person inpossession that such person shall hold such property in such person'spossession, subject to the further order of the court, and shall summon suchperson as a garnishee by serving upon such person a copy of the order whichdirects the sheriff to take immediate possession of the property. The sheriffmay require of such person in possession an undertaking with good andsufficient sureties in such sum as the sheriff deems sufficient. Theundertaking shall be to the effect that such person will deliver the propertyto the sheriff at the time and place fixed for sale, if such be ordered by thecourt. The sheriff shall give such person written notice of the time and placefixed for the sale by delivery in person or by restricted mail.
(g) Property claimed by third person. If the sheriff, by virtue ofthe order, shall take possession of, or be requested by the plaintiff totake possession of, personal property claimed by any person other than adefendant, the sheriff, before proceeding, may require the plaintiff togive the sheriff an undertaking with good and sufficient sureties to pay allcosts and damages that the sheriff may sustain by reason of the execution ofsuch order.
(h) Judgment. Judgment for the plaintiff shall be for a moneyjudgment and foreclosure of the security interest, and the plaintiff mayproceed to foreclose the security interest in accordance with the terms ofthe security agreement covering the property, as governed by the provisionsof the uniform commercial code, unless the court otherwise directs. If thecourt directs the plaintiff to proceed to enforce the judgment other thanpursuant to the security agreement, and if the judgment is not satisfiedwithin 10 days thereafter, then the clerk shall issue an order of specialexecution directed to the sheriff to sell the property in accordance withK.S.A. 60-1007, and amendments thereto. If the property is not then in thepossession of the sheriff, the order also shall direct the person havingpossession to deliver such property to the sheriff. If the property has beendelivered to the sheriff, and the defendant claims a return thereof, judgmentfor the defendant may be for a return of the property and damages for thetaking and withholding of same.
History: L. 1973, ch. 236, § 1; L. 1992, ch. 314, § 11; July 1.
60-1006.Foreclosure of security interest.A secured party may bring an action in the district court to reduce anindebtedness to a money judgment and to foreclose the security interest inspecific personal property given to secure such indebtedness. The securedparty, at any time before judgment is rendered, may cause the specifiedsecurity to be taken into the possession of the appropriate officer toawait further order of the court under the following procedure:
(a) Affidavit or petition. The plaintiff shall file an affidavit,unless the plaintiff's petition shall have been verified, which in either eventshall show: (1) The instrument of indebtedness or the terms thereof; (2) theamount of the indebtedness owed; (3) the security agreement or the termsthereof; (4) a description of the personal property; (5) that plaintiff islawfully entitled to the foreclosure of the specific personal property; (6) theestimated value of the personal property to the best of plaintiff'sknowledge and belief, and when several articles are claimed, the estimatedvalue of each article shall be so stated; and (7) that the personalproperty is wrongfully detained by the defendant.
(b) Hearing, notice; bond. Except as otherwise provided herein, afterfiling the affidavit or verified petition, the plaintiff shall apply to thecourt for an order for the delivery of the property to the plaintiff in themanner prescribed by subsection (b) of K.S.A. 60-207, and amendments thereto,and the motion made thereunder shall be served upon the defendant pursuant toK.S.A. 60-205, and amendments thereto. After a hearing and presentation ofevidence on plaintiff's motion, and if the judge is satisfied as to theprobable validity of plaintiff's claim and that delivery of the property to theplaintiff is in the interest of justice and will properly protect the interestsof all the parties, the judge may enter or cause to be entered an order for thedelivery of the property as provided in subsection (c).
Notwithstanding the foregoing provisions of this subsection, the judgemay enter or cause to be entered the order for delivery of property afteran ex parte hearing and without notice to and the opportunity for ahearing by the defendant, only if the judge is satisfied as to the probablevalidity of the following allegations to be contained in plaintiff'saffidavit or verified petition:
(1) Possession of the property by the plaintiff is directly necessary tosecure an important governmental or general public interest; and
(2) There is a special need for very prompt action due to the immediatedanger that the defendant will destroy or conceal the property.
In lieu of the foregoing procedure providing for the issuance of anorder for the delivery of the property, the plaintiff may apply to thecourt for a restraining order directed to the defendant, imposing suchconditions and restrictions as the court deems necessary to protect theproperty during the pendency of the action and to protect the court'sjurisdiction over such property. Such restraining order may be issuedwithout the requirement that the plaintiff file a bond as required forissuing an order for the delivery of the property.
Prior to issuance of the order for delivery of the property, theplaintiff shall file with the clerk of the court in which the action isbrought a bond in not less than double the amount of the estimated value ofthe property, as stated in the affidavit or verified petition, or as foundby the court at the hearing on plaintiff's motion, with one or moresufficient sureties. It shall be in favor of the defendant and shall be tothe effect that plaintiff shall duly prosecute the action and pay all costsand damages that may be awarded against the plaintiff, and that if plaintiff isgiven possession of the property the plaintiff will return it to the defendantif it be so adjudged. If the bond shall be found to be sufficient, the judge ofthe district court shall approve the same and note approval thereon. Thedefendant may challenge the sufficiency of the bond in the manner provided insubsection (b) of K.S.A. 60-705, and amendments thereto.
(c) Order. The order shall be delivered to the sheriff of anycounty in the state in which the property is located. The order shall statethe names of the parties, the description of the property and the estimatedvalue as set out in plaintiff's affidavit or verified petition, or as foundby the court at the hearing on plaintiff's motion pursuant to subsection(b). It shall command the sheriff to take immediate possession of theproperty and to keep it until further order of the court, subject to theprovisions of subsections (e), (f) and (g), and to make return of the orderon the day named therein.
(d) Return and execution of order. (1) Obtaining possession. In theexecution of the order the sheriff may break open any building or enclosure inwhich the property is located, if the sheriff cannot otherwise obtainpossession of the property or entrance to the building on demand.
(2) Execution. Such officer shall execute the order bytakingpossession of the property described therein, and by serving a copy on theperson charged with the unlawful detainer. Should the officer be unable toserve the defendant in accordance with the provisions of K.S.A. 60-304, andamendments thereto, but can take possession of the personal property describedin the order, the action may proceed to foreclose the security interest onceservice is made pursuant to K.S.A. 60-307, and amendments thereto.
(3) Perishable goods. When there is actually seized property which islikely to perish or to materially depreciate in value or threatens to declinespeedily in value before the probable termination of the suit, or the keepingof which would be attended with unreasonable loss or expense, the court mayorder the same to be sold by the sheriff on such terms and conditions as thejudge may direct, and a return of the proceedings thereon shall be made by thesheriff at a time to be fixed by the judge.
(4) Return. The time for return of the order of delivery shall beas prescribed by subsection (d) of K.S.A. 60-312, and amendments thereto.
(e) Redelivery bond. The defendant, within 24 hours after service of acopy of the order, may deliver to the sheriff a bond to be approved by thesheriff, in not less than double the amount of the value of the property asstated in the order, with one or more sufficient sureties, and the sheriffshall return the property to the defendant. The bond shall be in favor of theplaintiff and shall be to the effect that the defendant will deliver theproperty to the sheriff if it be so adjudged, and will pay all costs anddamages that may be adjudged against the defendant. The sheriff shall file thebond with the clerk after noting approval thereon. If the defendant does notfile a redelivery bond as provided above, then the sheriff shall deliver theproperty to the custody of the plaintiff, unless the plaintiff directs that theofficer retain possession of the property and deposits sufficient security, asdetermined by the court, to pay the cost of storing such property.
(f) Possession in third party. When the sheriff finds the propertyin possession of a person other than a defendant and deems it advisable toleave such person in possession, the sheriff shall declare to the person inpossession that such person shall hold such property in such person'spossession, subject to the further order of the court, and shall summon suchperson as a garnishee by serving upon such person a copy of the order whichdirects the sheriff to take immediate possession of the property. The sheriffmay require of such person in possession an undertaking with good andsufficient sureties in such sum as the sheriff deems sufficient. Theundertaking shall be to the effect that such person will deliver the propertyto the sheriff at the time and place fixed for sale, if such be ordered by thecourt. The sheriff shall give such person written notice of the time and placefixed for the sale by delivery in person or by restricted mail.
(g) Property claimed by third person. If the sheriff, by virtue ofthe order, shall take possession of, or be requested by the plaintiff totake possession of, personal property claimed by any person other than adefendant, the sheriff, before proceeding, may require the plaintiff togive the sheriff an undertaking with good and sufficient sureties to pay allcosts and damages that the sheriff may sustain by reason of the execution ofsuch order.
(h) Judgment. Judgment for the plaintiff shall be for a moneyjudgment and foreclosure of the security interest, and the plaintiff mayproceed to foreclose the security interest in accordance with the terms ofthe security agreement covering the property, as governed by the provisionsof the uniform commercial code, unless the court otherwise directs. If thecourt directs the plaintiff to proceed to enforce the judgment other thanpursuant to the security agreement, and if the judgment is not satisfiedwithin 10 days thereafter, then the clerk shall issue an order of specialexecution directed to the sheriff to sell the property in accordance withK.S.A. 60-1007, and amendments thereto. If the property is not then in thepossession of the sheriff, the order also shall direct the person havingpossession to deliver such property to the sheriff. If the property has beendelivered to the sheriff, and the defendant claims a return thereof, judgmentfor the defendant may be for a return of the property and damages for thetaking and withholding of same.
History: L. 1973, ch. 236, § 1; L. 1992, ch. 314, § 11; July 1.
60-1006.Foreclosure of security interest.A secured party may bring an action in the district court to reduce anindebtedness to a money judgment and to foreclose the security interest inspecific personal property given to secure such indebtedness. The securedparty, at any time before judgment is rendered, may cause the specifiedsecurity to be taken into the possession of the appropriate officer toawait further order of the court under the following procedure:
(a) Affidavit or petition. The plaintiff shall file an affidavit,unless the plaintiff's petition shall have been verified, which in either eventshall show: (1) The instrument of indebtedness or the terms thereof; (2) theamount of the indebtedness owed; (3) the security agreement or the termsthereof; (4) a description of the personal property; (5) that plaintiff islawfully entitled to the foreclosure of the specific personal property; (6) theestimated value of the personal property to the best of plaintiff'sknowledge and belief, and when several articles are claimed, the estimatedvalue of each article shall be so stated; and (7) that the personalproperty is wrongfully detained by the defendant.
(b) Hearing, notice; bond. Except as otherwise provided herein, afterfiling the affidavit or verified petition, the plaintiff shall apply to thecourt for an order for the delivery of the property to the plaintiff in themanner prescribed by subsection (b) of K.S.A. 60-207, and amendments thereto,and the motion made thereunder shall be served upon the defendant pursuant toK.S.A. 60-205, and amendments thereto. After a hearing and presentation ofevidence on plaintiff's motion, and if the judge is satisfied as to theprobable validity of plaintiff's claim and that delivery of the property to theplaintiff is in the interest of justice and will properly protect the interestsof all the parties, the judge may enter or cause to be entered an order for thedelivery of the property as provided in subsection (c).
Notwithstanding the foregoing provisions of this subsection, the judgemay enter or cause to be entered the order for delivery of property afteran ex parte hearing and without notice to and the opportunity for ahearing by the defendant, only if the judge is satisfied as to the probablevalidity of the following allegations to be contained in plaintiff'saffidavit or verified petition:
(1) Possession of the property by the plaintiff is directly necessary tosecure an important governmental or general public interest; and
(2) There is a special need for very prompt action due to the immediatedanger that the defendant will destroy or conceal the property.
In lieu of the foregoing procedure providing for the issuance of anorder for the delivery of the property, the plaintiff may apply to thecourt for a restraining order directed to the defendant, imposing suchconditions and restrictions as the court deems necessary to protect theproperty during the pendency of the action and to protect the court'sjurisdiction over such property. Such restraining order may be issuedwithout the requirement that the plaintiff file a bond as required forissuing an order for the delivery of the property.
Prior to issuance of the order for delivery of the property, theplaintiff shall file with the clerk of the court in which the action isbrought a bond in not less than double the amount of the estimated value ofthe property, as stated in the affidavit or verified petition, or as foundby the court at the hearing on plaintiff's motion, with one or moresufficient sureties. It shall be in favor of the defendant and shall be tothe effect that plaintiff shall duly prosecute the action and pay all costsand damages that may be awarded against the plaintiff, and that if plaintiff isgiven possession of the property the plaintiff will return it to the defendantif it be so adjudged. If the bond shall be found to be sufficient, the judge ofthe district court shall approve the same and note approval thereon. Thedefendant may challenge the sufficiency of the bond in the manner provided insubsection (b) of K.S.A. 60-705, and amendments thereto.
(c) Order. The order shall be delivered to the sheriff of anycounty in the state in which the property is located. The order shall statethe names of the parties, the description of the property and the estimatedvalue as set out in plaintiff's affidavit or verified petition, or as foundby the court at the hearing on plaintiff's motion pursuant to subsection(b). It shall command the sheriff to take immediate possession of theproperty and to keep it until further order of the court, subject to theprovisions of subsections (e), (f) and (g), and to make return of the orderon the day named therein.
(d) Return and execution of order. (1) Obtaining possession. In theexecution of the order the sheriff may break open any building or enclosure inwhich the property is located, if the sheriff cannot otherwise obtainpossession of the property or entrance to the building on demand.
(2) Execution. Such officer shall execute the order bytakingpossession of the property described therein, and by serving a copy on theperson charged with the unlawful detainer. Should the officer be unable toserve the defendant in accordance with the provisions of K.S.A. 60-304, andamendments thereto, but can take possession of the personal property describedin the order, the action may proceed to foreclose the security interest onceservice is made pursuant to K.S.A. 60-307, and amendments thereto.
(3) Perishable goods. When there is actually seized property which islikely to perish or to materially depreciate in value or threatens to declinespeedily in value before the probable termination of the suit, or the keepingof which would be attended with unreasonable loss or expense, the court mayorder the same to be sold by the sheriff on such terms and conditions as thejudge may direct, and a return of the proceedings thereon shall be made by thesheriff at a time to be fixed by the judge.
(4) Return. The time for return of the order of delivery shall beas prescribed by subsection (d) of K.S.A. 60-312, and amendments thereto.
(e) Redelivery bond. The defendant, within 24 hours after service of acopy of the order, may deliver to the sheriff a bond to be approved by thesheriff, in not less than double the amount of the value of the property asstated in the order, with one or more sufficient sureties, and the sheriffshall return the property to the defendant. The bond shall be in favor of theplaintiff and shall be to the effect that the defendant will deliver theproperty to the sheriff if it be so adjudged, and will pay all costs anddamages that may be adjudged against the defendant. The sheriff shall file thebond with the clerk after noting approval thereon. If the defendant does notfile a redelivery bond as provided above, then the sheriff shall deliver theproperty to the custody of the plaintiff, unless the plaintiff directs that theofficer retain possession of the property and deposits sufficient security, asdetermined by the court, to pay the cost of storing such property.
(f) Possession in third party. When the sheriff finds the propertyin possession of a person other than a defendant and deems it advisable toleave such person in possession, the sheriff shall declare to the person inpossession that such person shall hold such property in such person'spossession, subject to the further order of the court, and shall summon suchperson as a garnishee by serving upon such person a copy of the order whichdirects the sheriff to take immediate possession of the property. The sheriffmay require of such person in possession an undertaking with good andsufficient sureties in such sum as the sheriff deems sufficient. Theundertaking shall be to the effect that such person will deliver the propertyto the sheriff at the time and place fixed for sale, if such be ordered by thecourt. The sheriff shall give such person written notice of the time and placefixed for the sale by delivery in person or by restricted mail.
(g) Property claimed by third person. If the sheriff, by virtue ofthe order, shall take possession of, or be requested by the plaintiff totake possession of, personal property claimed by any person other than adefendant, the sheriff, before proceeding, may require the plaintiff togive the sheriff an undertaking with good and sufficient sureties to pay allcosts and damages that the sheriff may sustain by reason of the execution ofsuch order.
(h) Judgment. Judgment for the plaintiff shall be for a moneyjudgment and foreclosure of the security interest, and the plaintiff mayproceed to foreclose the security interest in accordance with the terms ofthe security agreement covering the property, as governed by the provisionsof the uniform commercial code, unless the court otherwise directs. If thecourt directs the plaintiff to proceed to enforce the judgment other thanpursuant to the security agreement, and if the judgment is not satisfiedwithin 10 days thereafter, then the clerk shall issue an order of specialexecution directed to the sheriff to sell the property in accordance withK.S.A. 60-1007, and amendments thereto. If the property is not then in thepossession of the sheriff, the order also shall direct the person havingpossession to deliver such property to the sheriff. If the property has beendelivered to the sheriff, and the defendant claims a return thereof, judgmentfor the defendant may be for a return of the property and damages for thetaking and withholding of same.
History: L. 1973, ch. 236, § 1; L. 1992, ch. 314, § 11; July 1.
