# Title 32 — Judicial Remedies

## Chapter 32-20 — Foreclosure of Liens on Personal Property

### § 32-20-01. Foreclosure authorized.

An action may be maintained in the district court to foreclose any lien upon personal
property.
### § 32-20-02. Warrant to seize property - Issuance - Service.

If the plaintiff is not in possession of the property, the judge of the court in which the action
is commenced, at the time of the commencement of the action or at any time before judgment,
may issue a warrant commanding the sheriff to seize and safely keep the same to abide the
final judgment in the action. The warrant may be issued upon the filing of:
1. A verified complaint setting forth a claim for relief in favor of the plaintiff and against the
defendant for the foreclosure of a lien upon the property possession of which is sought
to be obtained; and
2. An affidavit stating that the affiant knows or has good reason to believe that the
seizure of the property is necessary to prevent removal, destruction, or concealment of
the property or loss of the creditor's proprietary interests therein.
The sheriff shall without delay serve copies of the warrant, affidavit, and undertaking upon the
defendant in the same manner as the summons. If the defendant has not filed a special answer,
pursuant to this chapter, within ten days after notice of the issuance of a warrant or if in the trial
of the special answer the court finds for the plaintiff, the sheriff shall seize the property of the
defendant. The sheriff shall attach perishable property or property the judge has determined,
when issuing a warrant, is likely to be removed, destroyed, or concealed if the property is not
attached without delay, notwithstanding the right of the defendant to file a special answer.
### § 32-20-03. Form of warrant.

Repealed by S.L. 1985, ch. 378, § 5.
### § 32-20-04. Undertaking.

Before issuing the warrant, the clerk must require a written undertaking on the part of the
plaintiff with sufficient surety to the effect that if the defendant recovers judgment the plaintiff will
pay all costs that may be awarded to the defendant, and all damages which the defendant may
sustain by reason of any seizure under the warrant, not exceeding the sum named in the
undertaking, which must be at least the amount claimed in the complaint and in no case less
than one hundred dollars.
### § 32-20-04.1. Special answer to warrant - Trial.

Within ten days after notice of the issuing of a warrant to seize the defendant's property, the
defendant may, by special answer, deny the existence, at the time of the making of the affidavit,
of the material facts stated therein, and may assert undue hardship as a defense. The issue so
raised must be tried by the court before the trial of the action, and the burden of proof is upon
the plaintiff. If the defendant has made an assignment for the benefit of the defendant's
creditors, the defendant's assignee may answer and defend pursuant to this section.
### § 32-20-04.2. Trial of special answer.

In making its determination of the issue raised by the special answer, the court shall
consider any undue hardship on the defendant that would result from an issuance of the
warrant. If the court finds for the defendant, the judge shall tax the defendant's costs of such
trial, and shall enter an order dismissing the warrant or that the property attached be delivered
to the defendant; and the jury or the court shall, on the trial of the action or thereafter, assess
the damages sustained by the defendant by reason of the taking and detention or sale of the
property attached or by reason of any injury thereto. The same, together with the costs so
taxed, must be a setoff to the plaintiff's demand, and if in excess of it, or the plaintiff fails to
recover, the defendant shall have judgment for the amount due. If the court on the trial of such

special issue finds for the plaintiff, the judge shall tax the plaintiff's costs of such trial, and the
amount so taxed must, if the plaintiff recovers, be taxed by the clerk as disbursement in the
action. If the defendant or the defendant's assignee recovers judgment in the action, said costs
and the judgment must be offset.
### § 32-20-05. What judgment must state.

In an action for the foreclosure of a lien on personal property, judgment in favor of the
plaintiff must specify the amount due on the lien and must direct a sale of the property to satisfy
the same and the costs, by a person appointed thereby, or by an officer designated therein, in
the manner provided for the sale of personal property under execution, and the application by
the person or officer of the proceeds of the sale, less the person's or officer's fees and
expenses, to the payment of the judgment and costs. It also may provide for the payment of the
surplus to the owner of the chattel and for the safekeeping of the surplus, if necessary, until it is
claimed by the owner. If the defendant upon whom the summons is served personally is liable
for the amount of the lien, or for any part thereof, judgment may be entered against the
defendant accordingly. A judgment for either the defendant or plaintiff must specify any amounts
awarded pursuant to section 32-20-04.2.
### § 32-20-06. Certain provisions relating to attachments applicable.

The provisions of the chapter on attachment in this title relative to rebonding, the sale of
perishable property, and proceedings in case judgment is in favor of the defendant shall apply to
proceedings under this chapter so far as the same are applicable.
### § 32-20-07. Property must be subject to jurisdiction of court.

In all cases of foreclosure of chattel liens of any kind, foreclosure will be ordered only upon
proof that the property or some part thereof is in existence, subject to execution, and within the
jurisdiction of the court.
### § 32-20-08. Other remedies not affected.

This chapter does not affect any right or remedy to foreclose or otherwise enforce or satisfy
a lien upon or security interest in personal property without action as prescribed in sections
