Chapter 61.--PROCEDURE, CIVIL, FOR LIMITED ACTIONS
Article 37.--REPLEVIN AND FORECLOSURE OF SECURED INTERESTS
61-3702.Foreclosure of security interest.Aplaintiff may bring an action to reduce an indebtedness to a money judgmentand toforeclose the security interest in specific personal property given to securesuch indebtedness.The plaintiff, at any time before judgment is rendered, may obtain immediatepossession ofthe specified property as follows:
(a) Petition. Theplaintiff shall file a petition signed under penalty ofperjury 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 specificpersonal 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 thepetition, the plaintiff mayapply to the court for an order for the delivery of the property beforejudgment.
(1) The application to the court for an order of delivery shall be by motionwhich,unless made during a hearing or trial, shall be made in writing, state withparticularitythe grounds therefor and set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuanttoK.S.A. 61-3001 through 61-3006, and amendments thereto.
(3) After a hearing and presentation of evidence on the plaintiff's motion,ifthe judgeis satisfied as to the probable validity of the plaintiff's claim and thatdeliveryof the property tothe plaintiff is in the interest of justice and will properly protect theinterests of all the parties,the judge may enter or cause to be entered an order for the delivery of theproperty to theplaintiff.
(4) Prior to the issuance of the order for delivery of the property, theplaintiff shall filea bond with the clerk of the court.
(c) Bond, contents, insufficiency.(1) The bond shall be executed by the plaintiff and one or more sufficientsureties in asum double the amount of the fair market value of the property, as determinedby 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 theaction, and payall costs and damages that may be awarded against the plaintiff, and that ifthe plaintiff is givenpossession of the property the plaintiff will return it to the defendant if itbe so adjudged. If thebond shall be found to be sufficient, the judge shall approve the same and noteapproval thereon.
(3) The defendant may challenge the sufficiency of the bond as provided insubsection(b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right totakepossessionof 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 orenclosurein which the property is located, if the officer cannot otherwise obtainpossession of the propertyor entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession ofthe propertydescribed therein, and serving a copy on the person charged with the order ofdelivery in thesame manner as for personal or resident service if the person can be found inthe county.
(3) The return day of the order of delivery shall be 10 days after itis issued, if theorder is executed within the county where the court is situated. In all othercases, the returnday shall be 20 days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order.Upon inspectionof the property the plaintiff may abandon their right to prejudgment possessionand shall soadvise the appropriate officer and the court.
(e) Perishable goods. When property shall be actually seized which is likelyto perish or tomaterially depreciate in value or threatens to decline speedily in value beforethe probabletermination of the suit, or the keeping of which would be attended withunreasonable loss orexpense, the court may order the same to be sold on such terms and conditionsas the judgemay direct, by the person having charge of the property, and a return of theproceedingsthereon 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 deliveryorder, may applyto the court for redelivery of the property. The court shall order return ofthe property to thedefendant when the defendant files a bond with the clerk of the court, in anamount equal tothe plaintiff's bond, executed by the defendant with one or more sufficientsureties. The bondshall be to the effect that the defendant will deliver the property to theplaintiff if so adjudged,and will pay all costs and damages that may be adjudged against the defendant.If the bondshall be found to be sufficient, the judge shall approve the same and noteapprovalthereon. If the defendant is a public officer, board or government agency,such officer, boardor agency, in lieu of giving a redelivery bond, may retain possession of theproperty seized byfiling with the clerk a response certifying that the public health, safety orwelfare would bejeopardized or impaired if the plaintiff acquired possession of the propertyprior to final judgment, in which case a hearing may be had on the issue ofpublic interest at the instance ofany party.
(g) Possession in third party. When the officer finds the property inpossession of a person other than a defendant and deems it advisable to leavesuch person in possession, the officer 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 officer to take immediate possession of the property. The court mayrequire of such person in possession an undertaking with good and sufficientsureties in such sum as the court deems sufficient. The undertaking shall be tothe effect that such person will deliver the property to the officer at thetime and place fixed for sale, if such be ordered by the court. The officershall give such person written notice of the time and place fixed for the saleby delivery in person or by restricted mail.
(h) Property claimed by third person. If the officer, before proceeding, mayrequire thepossession of, or be requested by the plaintiff to take possession of, personalproperty claimedby any person other than a defendant, the court may require the plaintiff togive the court anundertaking with good and sufficient sureties to pay all costs and damages thatthe officer maysustain by reason of the execution of such order.
(i) Judgment. Judgment for the plaintiff shall be for a money judgment andforeclosure of thesecurity interest, and the plaintiff may proceed to foreclose the securityinterest in accordancewith the terms of the security agreement covering the property, as governed bythe provisionsof the uniform commercial code, unless the court otherwise directs. If thecourt directs theplaintiff to proceed to enforce such plaintiff's judgment other than pursuantto the security agreement, and if the judgment is not satisfied within 10 daysthereafter, then the clerk shallissue an order of special execution directed to the appropriate officer to sellthe property inaccordance with K.S.A. 61-3703, and amendments thereto. If theproperty is not thenin the possession of the officer, the order shall also direct the person havingpossession todeliver such property to the officer. If the property has been delivered to theofficer, and thedefendant claims a return thereof, judgment shall be for the defendant or areturn ofthe property anddamages for the taking and withholding of same.
Chapter 61.--PROCEDURE, CIVIL, FOR LIMITED ACTIONS
Article 37.--REPLEVIN AND FORECLOSURE OF SECURED INTERESTS
61-3702.Foreclosure of security interest.Aplaintiff may bring an action to reduce an indebtedness to a money judgmentand toforeclose the security interest in specific personal property given to securesuch indebtedness.The plaintiff, at any time before judgment is rendered, may obtain immediatepossession ofthe specified property as follows:
(a) Petition. Theplaintiff shall file a petition signed under penalty ofperjury 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 specificpersonal 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 thepetition, the plaintiff mayapply to the court for an order for the delivery of the property beforejudgment.
(1) The application to the court for an order of delivery shall be by motionwhich,unless made during a hearing or trial, shall be made in writing, state withparticularitythe grounds therefor and set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuanttoK.S.A. 61-3001 through 61-3006, and amendments thereto.
(3) After a hearing and presentation of evidence on the plaintiff's motion,ifthe judgeis satisfied as to the probable validity of the plaintiff's claim and thatdeliveryof the property tothe plaintiff is in the interest of justice and will properly protect theinterests of all the parties,the judge may enter or cause to be entered an order for the delivery of theproperty to theplaintiff.
(4) Prior to the issuance of the order for delivery of the property, theplaintiff shall filea bond with the clerk of the court.
(c) Bond, contents, insufficiency.(1) The bond shall be executed by the plaintiff and one or more sufficientsureties in asum double the amount of the fair market value of the property, as determinedby 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 theaction, and payall costs and damages that may be awarded against the plaintiff, and that ifthe plaintiff is givenpossession of the property the plaintiff will return it to the defendant if itbe so adjudged. If thebond shall be found to be sufficient, the judge shall approve the same and noteapproval thereon.
(3) The defendant may challenge the sufficiency of the bond as provided insubsection(b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right totakepossessionof 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 orenclosurein which the property is located, if the officer cannot otherwise obtainpossession of the propertyor entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession ofthe propertydescribed therein, and serving a copy on the person charged with the order ofdelivery in thesame manner as for personal or resident service if the person can be found inthe county.
(3) The return day of the order of delivery shall be 10 days after itis issued, if theorder is executed within the county where the court is situated. In all othercases, the returnday shall be 20 days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order.Upon inspectionof the property the plaintiff may abandon their right to prejudgment possessionand shall soadvise the appropriate officer and the court.
(e) Perishable goods. When property shall be actually seized which is likelyto perish or tomaterially depreciate in value or threatens to decline speedily in value beforethe probabletermination of the suit, or the keeping of which would be attended withunreasonable loss orexpense, the court may order the same to be sold on such terms and conditionsas the judgemay direct, by the person having charge of the property, and a return of theproceedingsthereon 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 deliveryorder, may applyto the court for redelivery of the property. The court shall order return ofthe property to thedefendant when the defendant files a bond with the clerk of the court, in anamount equal tothe plaintiff's bond, executed by the defendant with one or more sufficientsureties. The bondshall be to the effect that the defendant will deliver the property to theplaintiff if so adjudged,and will pay all costs and damages that may be adjudged against the defendant.If the bondshall be found to be sufficient, the judge shall approve the same and noteapprovalthereon. If the defendant is a public officer, board or government agency,such officer, boardor agency, in lieu of giving a redelivery bond, may retain possession of theproperty seized byfiling with the clerk a response certifying that the public health, safety orwelfare would bejeopardized or impaired if the plaintiff acquired possession of the propertyprior to final judgment, in which case a hearing may be had on the issue ofpublic interest at the instance ofany party.
(g) Possession in third party. When the officer finds the property inpossession of a person other than a defendant and deems it advisable to leavesuch person in possession, the officer 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 officer to take immediate possession of the property. The court mayrequire of such person in possession an undertaking with good and sufficientsureties in such sum as the court deems sufficient. The undertaking shall be tothe effect that such person will deliver the property to the officer at thetime and place fixed for sale, if such be ordered by the court. The officershall give such person written notice of the time and place fixed for the saleby delivery in person or by restricted mail.
(h) Property claimed by third person. If the officer, before proceeding, mayrequire thepossession of, or be requested by the plaintiff to take possession of, personalproperty claimedby any person other than a defendant, the court may require the plaintiff togive the court anundertaking with good and sufficient sureties to pay all costs and damages thatthe officer maysustain by reason of the execution of such order.
(i) Judgment. Judgment for the plaintiff shall be for a money judgment andforeclosure of thesecurity interest, and the plaintiff may proceed to foreclose the securityinterest in accordancewith the terms of the security agreement covering the property, as governed bythe provisionsof the uniform commercial code, unless the court otherwise directs. If thecourt directs theplaintiff to proceed to enforce such plaintiff's judgment other than pursuantto the security agreement, and if the judgment is not satisfied within 10 daysthereafter, then the clerk shallissue an order of special execution directed to the appropriate officer to sellthe property inaccordance with K.S.A. 61-3703, and amendments thereto. If theproperty is not thenin the possession of the officer, the order shall also direct the person havingpossession todeliver such property to the officer. If the property has been delivered to theofficer, and thedefendant claims a return thereof, judgment shall be for the defendant or areturn ofthe property anddamages for the taking and withholding of same.
Chapter 61.--PROCEDURE, CIVIL, FOR LIMITED ACTIONS
Article 37.--REPLEVIN AND FORECLOSURE OF SECURED INTERESTS
61-3702.Foreclosure of security interest.Aplaintiff may bring an action to reduce an indebtedness to a money judgmentand toforeclose the security interest in specific personal property given to securesuch indebtedness.The plaintiff, at any time before judgment is rendered, may obtain immediatepossession ofthe specified property as follows:
(a) Petition. Theplaintiff shall file a petition signed under penalty ofperjury 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 specificpersonal 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 thepetition, the plaintiff mayapply to the court for an order for the delivery of the property beforejudgment.
(1) The application to the court for an order of delivery shall be by motionwhich,unless made during a hearing or trial, shall be made in writing, state withparticularitythe grounds therefor and set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuanttoK.S.A. 61-3001 through 61-3006, and amendments thereto.
(3) After a hearing and presentation of evidence on the plaintiff's motion,ifthe judgeis satisfied as to the probable validity of the plaintiff's claim and thatdeliveryof the property tothe plaintiff is in the interest of justice and will properly protect theinterests of all the parties,the judge may enter or cause to be entered an order for the delivery of theproperty to theplaintiff.
(4) Prior to the issuance of the order for delivery of the property, theplaintiff shall filea bond with the clerk of the court.
(c) Bond, contents, insufficiency.(1) The bond shall be executed by the plaintiff and one or more sufficientsureties in asum double the amount of the fair market value of the property, as determinedby 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 theaction, and payall costs and damages that may be awarded against the plaintiff, and that ifthe plaintiff is givenpossession of the property the plaintiff will return it to the defendant if itbe so adjudged. If thebond shall be found to be sufficient, the judge shall approve the same and noteapproval thereon.
(3) The defendant may challenge the sufficiency of the bond as provided insubsection(b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right totakepossessionof 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 orenclosurein which the property is located, if the officer cannot otherwise obtainpossession of the propertyor entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession ofthe propertydescribed therein, and serving a copy on the person charged with the order ofdelivery in thesame manner as for personal or resident service if the person can be found inthe county.
(3) The return day of the order of delivery shall be 10 days after itis issued, if theorder is executed within the county where the court is situated. In all othercases, the returnday shall be 20 days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order.Upon inspectionof the property the plaintiff may abandon their right to prejudgment possessionand shall soadvise the appropriate officer and the court.
(e) Perishable goods. When property shall be actually seized which is likelyto perish or tomaterially depreciate in value or threatens to decline speedily in value beforethe probabletermination of the suit, or the keeping of which would be attended withunreasonable loss orexpense, the court may order the same to be sold on such terms and conditionsas the judgemay direct, by the person having charge of the property, and a return of theproceedingsthereon 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 deliveryorder, may applyto the court for redelivery of the property. The court shall order return ofthe property to thedefendant when the defendant files a bond with the clerk of the court, in anamount equal tothe plaintiff's bond, executed by the defendant with one or more sufficientsureties. The bondshall be to the effect that the defendant will deliver the property to theplaintiff if so adjudged,and will pay all costs and damages that may be adjudged against the defendant.If the bondshall be found to be sufficient, the judge shall approve the same and noteapprovalthereon. If the defendant is a public officer, board or government agency,such officer, boardor agency, in lieu of giving a redelivery bond, may retain possession of theproperty seized byfiling with the clerk a response certifying that the public health, safety orwelfare would bejeopardized or impaired if the plaintiff acquired possession of the propertyprior to final judgment, in which case a hearing may be had on the issue ofpublic interest at the instance ofany party.
(g) Possession in third party. When the officer finds the property inpossession of a person other than a defendant and deems it advisable to leavesuch person in possession, the officer 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 officer to take immediate possession of the property. The court mayrequire of such person in possession an undertaking with good and sufficientsureties in such sum as the court deems sufficient. The undertaking shall be tothe effect that such person will deliver the property to the officer at thetime and place fixed for sale, if such be ordered by the court. The officershall give such person written notice of the time and place fixed for the saleby delivery in person or by restricted mail.
(h) Property claimed by third person. If the officer, before proceeding, mayrequire thepossession of, or be requested by the plaintiff to take possession of, personalproperty claimedby any person other than a defendant, the court may require the plaintiff togive the court anundertaking with good and sufficient sureties to pay all costs and damages thatthe officer maysustain by reason of the execution of such order.
(i) Judgment. Judgment for the plaintiff shall be for a money judgment andforeclosure of thesecurity interest, and the plaintiff may proceed to foreclose the securityinterest in accordancewith the terms of the security agreement covering the property, as governed bythe provisionsof the uniform commercial code, unless the court otherwise directs. If thecourt directs theplaintiff to proceed to enforce such plaintiff's judgment other than pursuantto the security agreement, and if the judgment is not satisfied within 10 daysthereafter, then the clerk shallissue an order of special execution directed to the appropriate officer to sellthe property inaccordance with K.S.A. 61-3703, and amendments thereto. If theproperty is not thenin the possession of the officer, the order shall also direct the person havingpossession todeliver such property to the officer. If the property has been delivered to theofficer, and thedefendant claims a return thereof, judgment shall be for the defendant or areturn ofthe property anddamages for the taking and withholding of same.
