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Restraining Order Criteria A BRIEF GUIDE TO CIVIL PROCESS FROM Powered By Docstoc
					            A BRIEF GUIDE
            CIVIL PROCESS

             FROM THE






                                     SEPTEM BER 2002

Bankruptcy Actions                               Page 3

Conciliation “Small Claims” Court                Page 3

Criminal Restitution Judgments                   Page 3

Domestic Abuse Orders for Protection             Page 4

Fees                                             Page 5

Harassment Restraining Order                     Page 5

Lists of Sales                                   Page 6

Mortgage Foreclosure                             Page 7

Priority Service                                 Page 8

Recovery of Property in Divorce Action           Page 8

Redemption of Mortgage Foreclosed Property       Page 8

Sales                                            Page 9

Subpoena Service                                 Page 10

Summons & Complaint Service                      Page 10

Summons & Petition for Dissolution of Marriage   Page 11

Unlawful Detainer “Eviction” Actions             Page 11

Writs of Execution                               Page 13

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                              BANKRUPTCY ACTIONS
Bankruptcy actions are filed in U.S. Bankruptcy Court. Residents of Carver County file with the
Minneapolis Office:
                                      301 US Court House
                                      300 South 4th Street
                                    Minneapolis, MN 55415
                                        (612) 664-5200

Additional information may be found at

A bankruptcy filing will automatically stay any action to collect judgments or conduct Mortgage
Foreclosure Sales. In most cases it will be automatically stop an Unlawful Detainer Action.

Following a hearing the Bankruptcy Court may issue an order permitting creditors to resume
collection actions or the bankruptcy judge may permit other actions to resume.

Conciliation Court, also known as “Small Claims Court”, was created to allow citizens to bring
legal claims to the court without expensive costs or complicated legal procedures. Conciliation
Court can accept claims for filing that are at, or below, the limit set by law. Currently this limit is

You cannot file in Conciliation Court a claim involving the title to real estate.

Attorneys can be involved in Conciliation Court proceedings.

The Minnesota Attorney General’s Office has written and published a brochure entitled
Conciliation Court: A User’s Guide to Small Claims Court. Additional information may be
obtained from

A limited number of the brochures are available from Carver County Court Administration.

Occasionally in criminal cases a judge will order a defendant to make restitution. If the defendant
fails to do so, the victim may seek a Writ of Execution for the Sheriff’s Office to satisfy the
judgment. The victim should first contact:

                                  The Victim/Witness Coordinator
                                  Carver County Attorney’s Office

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The Victim Witness coordinator will prepare an Affidavit of Identification, which will be
forwarded to the victim. The victim must file the Affidavit with the Court Administrator. In this
case, there is no filing fee.

When a Writ of Execution is issued pursuant to the Restitution Order, it is processed the same as
any other Writ of Execution.

If you have questions regarding this type of judgment, you may contact Carver County Court

Victims of domestic violence may seek an Order for Protection from Family Court. It is not
necessary for a victim to report the violence to the police or sheriff’s deputy in order to request
an Order, but the Carver County Sheriff’s Office strongly recommends that a report be made.
This allows the criminal justice system to intervene in the situation.

Pursuant to Minnesota Statute 518B.01(2), Domestic Abuse applies if the act was committed by
a family or household member. Family or household member is defined as:

      Spouse and former spouse
      Parents and children
      Persons related by blood
      Persons who are presently residing together or who have resided together in the past
      Persons who have a child in common regardless of whether they have been married or
       have lived together at any time
      A man and woman if the woman is pregnant and the man is alleged to be the father,
       regardless of whether they have been married or have lived together at any time; and
      Persons involved in a significant romantic or sexual relationship.

An adult may file a Petition for an Order for Protection on behalf of a ny victim who is a minor;
is considered vulnerable because of mental deficiency; or, is of an advanced age.

Anyone seeking an Order for Protection should contact Carver County Court Administration.

When a judge reviews the Petition and Affidavit for Order for Protection, he or she will
determine if an Ex Parte Order for Protection or an Order for Hearing should be issued. In either
case, a hearing to review the Petition is scheduled for approximately 7 days following the filing
of the Petition.

At the hearing, a judge will listen to both the petitioner and respondent and will determine if a
long-term Order for Protection should be issued. This is generally for one or two years.

The Sheriff’s Office will arrange for service within Carver County. If the respondent lives in
another county, they will fax the Order to the respondent’s local Sheriff’s Office.

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In most cases, these Orders can be served anytime and anywhere. We request that you provide as
much information as possible to assist deputies in locating the respondent.

The Court Administrator does not charge a filing fee for this Order, nor does the Sheriff’s Office
charge a fee for serving these papers.

Southern Valley Alliance for Battered Women provides assistance for women and children who
are in domestic abuse situations. You can contact them at:

                          Southern Valley Alliance for Battered Women

Advocates will assist in preparing the Affidavit and the Petition necessary to obtain an Order.
They also provide other resources for domestic abuse victims.

Fees charged by the Sheriff’s Office for different types of civil process functions are established
by the Carver County Board of Commissioners. Fees are reviewed by the Sheriff’s Office
periodically. Any proposed changes are discussed with other Sheriff’s Offices in the
metropolitan area, so they remain fairly consistent.

A deposit, either check or cash must accompany legal processes submitted for service. The
amount of deposit will be determined by the number of persons being served and will change
when the fee amounts change.

A service fee and mileage will be charged after an attempt at service, even if the person being
served cannot be located.

An entire list of fees can be found at: f

Harassment Restraining Orders are regulated by Minnesota Statute 609.748. For general
purposes, this statute defines harassment as, “repeated, intrusive, or unwanted acts, words or
gestures that are intended to adversely affect the safety, security, or privacy of another,
regardless of the relationship between the actor and the intended target.”

In some cases, this type of problem can be resolved through:

                            Carver County Dispute Resolution Program
                                 Carver County Attorney’s Office

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In any case, reports of the incidents of harassment should be made to the local law enforcement
agency. If you live in Carver County, dial 9-1-1 and a local police officer or sheriff’s deputy will
take a report.

To obtain a Harassment Restraining Order it is necessary to file a Petition and Affidavit with the
Court Administrator. The petitioner must be a resident of Carver County.

There is a filing fee for this type of action. If, however, you have limited income, you can request
an In Forma Pauperis Order. If the petitioner meets certain limited income criteria, a judge may
grant an Order directing the Court Administrator to file the action at no charge.

As in the Domestic Abuse Order for Protection, a judge will determine if an Ex Parte Restraining
Order or an Order for Hearing should be issued. The hearing should be conducted approximately
14 days following the filing of the petition. Normally this order must be served at least 5 days
before the hearing, although some judges will designate in the Order that the five-day period be

Following the hearing, a judge may grant a long-term Order, usually one or two years in

In either case, with the temporary Order or the long-term Order, the petitioner should bring the
Order to the Sheriff’s Office to arrange for service, either in Carver County or in the county in
which the respondent resides. Please provide as much information as possible to the Sheriff’s
Office so this service can be facilitated as efficiently as possible.

The Carver County Sheriff’s Office does not charge a fee for service of Harassment Restraining

                                    LISTS OF SALES
The Sheriff’s Office does not provide a list of upcoming mortgage foreclosure sales.
Mortgage Foreclosure sales are advertised in the local county newspapers at the choice of the
attorney representing the mortgage company.

If the Sheriff’s Office is conducting a sale pursuant to Judgement & Decree or as part of an
Execution action, the sale notice will be posted in the following areas:

   1. On the bulletin board near the information desk in the Carver County Government Center
   2. In the display case outside of the Sheriff’s Office on the Justice Center side of the

Mechanic’s Lien sales and Abandoned Property sales, which the Sheriff’s Office may conduct as
an auctioneer, generally are published in the local county newspapers. There may also be a
notice displayed in the two places mentioned above.

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                         MORTGAGE FORECLOSURES
Mortgage Foreclosures are legal actions taken to foreclose upon real estate, as opposed to
personal property. Minnesota Statutes Chapters 580-582 cover these actions.

                        Mortgage Foreclosure by Advertisement
This is the most common type of foreclosure action. It is usually based upon some default in the
terms of the mortgage.

The attorney hired to conduct the foreclosure will prepare the appropriate Notice of Mortgage
Foreclosure Sale, arrange for the service and publication of the notice and have the Sheriff’s
Office conduct the sale.

Some attorneys utilize the Sheriff’s Office to serve the notices while others only notify the
Sheriff’s Office of the sale. Since attorneys often do not involve the Sheriff’s Office until the day
of the sale, information is not be available if you call.

Any questions regarding a sale or arrangements to reinstate a mortgage should be directed to the
attorney preparing the sale. Their telephone number is usually published with the Notice of Sale.

                             Mortgage Foreclosure by Actions
These sales are conducted pursuant to a direct Order from a District Court Judge for the sheriff to
sell a specific parcel of real property.

The notices are prepared by the plaintiff’s attorney, similar to the Mortgage Foreclosure by
Advertisement. However, the sheriff or a deputy will sign the Notice of Sale. Service of the
Notice of Sale is usually done by the Sheriff’s Office. Law requires a posting in three public
places in Carver County as well as publication in the county’s legal newspaper.

                                        Sale Procedure
In either type of Mortgage Foreclosure Sale, the sheriff, or his designee, conducts the sale in an
open bidding process. The representative of the mortgage company or the plaintiff’s attorney will
open the bid with the exact amount due at the time of the sale.

Following this bid, other bidders are given an opportunity to bid. A successful bidder must have
cash or certified funds available to pay the Sheriff’s Office at the time of the sale.

The successful bidder will receive a Sheriff’s Certificate of Sale that lists the name of the
purchaser and the amount of the purchase. The Certificate of Sale is prepared by the attorney and
includes documentation proving that all statutory requirements have been completed. The

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successful bidder must wait the required 6 or 12 month redemption period before acquiring the
property. Minnesota State Statutes 580.23 and 582.032 govern the redemption period.

                                 PRIORITY SERVICE
Occasionally priority service is requested. Priority service is defined as service performed within
four hours of the receipt of the process at our office. Pursuant to the fee schedule, the client in
this type of action may be required to pay one hour of deputy time, in addition to the regular
service and mileage fees.

Often in divorce actions a judge will award property to one of the parties but the other party will
not release the property. The Sheriff’s Office cannot force one person to turn property over to
another person.

The person to whom the property was awarded should seek an Order from the Court to assist in
this matter. It would be prudent to consult an attorney in this instance.

Pursuant to Minnesota Statutes, the mortgagor can redeem most properties sold in a Mortgage
Foreclosure action. The published Notice of Mortgage Foreclosure Sale usually contains a
paragraph indicating the length of the redemption period. In most cases this is six months.
However, some Mortgage Foreclosures are subject to Federal regulations, in which case there is
no redemption period. Minnesota Statutes 580-582 regulate these redemptions.

A Certificate of Redemption can be obtained from the Sheriff’s Office of the county in which the
foreclosure occurred or from the mortgagee (lending institution).

                   Redemption by Mortgagor (Recorded Fee Owner)
If a mortgagor wishes to obtain a Certificate of Redemption from the Sheriff’s Office, they
should call (952) 361-1267 and request a Redemption Information Sheet. This must be returned
to our office at least 48 hours prior to the anticipated time of redemption. This additional time is
required for research of the recorded documents and preparation of the certificate. It will also
allow time to contact the redeeming party if additional data or documents are required.

The amount of the redemption is determined by the following:

-    amount bid at the foreclosure sale

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-    interest accruing from the date of sale to the date of redemption, this is
     computed at the rate of interest on the mortgage
-    additional amounts paid by the purchaser at the foreclosure sale: these
     amounts may include insurance, taxes, assessments,etc. The purchaser must
     present an Affidavit of additional amount of redemption to the sheriff and
     record it with the County Recorder within the listed redemption period in
     order to collect those amounts as part of the redemption.

Payment of the redemption amount must be tendered to the Sheriff’s Office in either cash or
certified funds. No other type of funds will be accepted.

                               Redemption by Other Parties
After the normal redemption period has expired, a redemption may be made by persons other
that the mortgagor. These may be based on the following:

-    Mechanic’s Lien filed against the property
-    judgment against the mortgagor
-    mortgage against the property other than the foreclosed mortgage
-    any other valid lien existing against the property

Redemptions by other parties have some specific legal requirements. It is recommended that the
person interested in this type of redemption consult an attorney.

                                       Redemption Fees
The Carver County Board establishes fees for redemptions and for the required filing of
Certificates of Redemption.

The fee for redemption must be paid before the Certificate of Redemption is issued. These fees
do not require certified funds.

The Sheriff’s Office conducts various types of sales under the various statutes. In most cases the
Sheriff’s Office is simply an auctioneer for the person who needs the sale performed.

These sales include, but are not limited to, the following:

-    Mechanic Lien Sales (Minnesota Statutes 514.18-22)
-    Abandoned Property Sales (Minnesota Statute 504B.271 sub.1)
-    Mortgage Foreclosure Sales (see section on Mortgage Foreclosures)

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-     Execution Sales (see section on Writs of Execution)
-     Sales pursuant to Court Orders, Tax Warrants, etc.
-     Miscellaneous sales pursuant to Statutes applying to specific circumstances

                                  SUBPOENA SERVICE
Subpoenas can be obtained from the Court Administrator’s Office in the county where the court
action is filed. An adult who is not a part of the court action can serve the Subpoena. The Carver
County Sheriff’s Office does serve Subpoenas.

To do so, an original and a copy for service must be given to the Sheriff’s Office. Following
service, the original Subpoena will be returned to the party requesting service along with an
Affidavit of Service. It is the responsibility of the party requesting service to return these to the
Court Administrator.

A Subpoena can be served upon the person or left with someone of “reasonable age and sound
mind” who resides at the same address.

A witness who has received a Subpoena is, in most civil cases, entitled to witness fees and
mileage in advance. If so, a check to cover the witness fees and mileage usually is provided to
the witness at the time the Subpoena is served. It is the responsibility of the person requesting
service to pay these fees.

The Sheriff’s Office will charge for the service of a Subpoena.

If a plaintiff desires the Sheriff’s Office to serve a Summons and Complaint in a civil action, the
plaintiff should provide the Sheriff’s Office with an original and one copy of the Summons and
Complaint for each defendant in the action.

A sheriff’s deputy will serve the copy and return the original Summons and Complaint, along
with an Affidavit of Service, to the plaintiff. It is the plaintiff’s responsibility to file the original
Summons and Complaint and Affidavit of Service with the Court Administrator.

The Sheriff’s Office charges fees for this type of service.

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                        SUMMONS AND PETITION FOR
                         DISSOLUTION OF MARRIAGE
In a divorce action, the person seeking the divorce (petitioner) will have a Summons and Petition
for Dissolution of Marriage prepared, usually by an attorney. This must be served on the
respondent personally. Substitute service is not permitted.

If the petitioner requests the Sheriff’s Office to serve this process, the original Summons and a
copy of the Summons and Petition for Service should be presented to the Sheriff’s Office.

Following the service, the Sheriff’s Office will return the original Summons and an Affidavit of
Service to the petitioner, who must file the documents with the Court Administrator.

The Sheriff’s Office does charge for this service.

                      Commencing an Unlawful Detainer Action
An Unlawful Detainer Action is required in order to evict a tenant from rental property. These
actions are regulated by Minnesota Statute 504B.321.

There are four common reasons for evicting a tenant:

-    delinquent rent payments
-    violation of lease provisions
-    failure to move after 30 day written notice
-    landlord is notified by law enforcement authorities of narcotics sales or activities on the
     tenant’s premises

 To commence an Unlawful Detainer Action the property owner (plaintiff) must file a
“Complaint in Unlawful Detainer” with the Carver County Court Administrator.

When the Complaint has been filed, the Court Administrator will establish a court date, issue the
Summons, and provide the plaintiff with enough copies of the Summons and Complaint to serve
each defendant. If the tenant has unknown parties living on the premises, the plaintiff can list
John Doe, Mary Roe, etc. as additional defendants.

The Summons and Complaint must be served on each tenant/defendant no less than seven (7)
days prior to the court date, exclusive of the court date. In lieu of service by a deputy, a third
party, not less than 18 years of age, who is not a part of the court action may make the service. A
notarized Affidavit of Service must be filed with the Court Administrator before the date of the
court hearing.

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If the plaintiff wishes the Carver County Sheriff’s Office to make service, the plaintiff must
provide the sheriff with the original Summons and defenda nt copies of the Summons and
Complaint. This should be done as soon as possible after the plaintiff receives the documents
from the Carver County Court Administrator.

Minnesota State Statute 504B.331 regulates how a Summons is served.

If a sheriff’s deputy does not find the defendant(s) at home after making attempts on at least two
different days, one day prior to 6:00 p.m. and one day after 6:00 p.m., the deputy will post the
Summons and Complaint on the door of the premises involved in the Unlawful Detention

The deputy will complete the appropriate Affidavit(s) and the original Summons and Affidavit(s)
will be filed with the Court Administrator’s Office by the Sheriff’s Office.

The plaintiff should mail a copy of the Summons and Complaint to each defendant by first class
mail immediately after giving the original to the Sheriff’s Office. If posting is required, the
plaintiff will be notified by telephone and should then file an Affidavit of Mailing wit h the court
at least three (3) days prior to the hearing date.

The “Complaint in Unlawful Detainer” form is available at most office supply stores. If you can
not locate one, the Court Administrator may have a limited supply available.

If a judge finds in favor of the plaintiff at the hearing, a Writ of Recovery will be authorized.
This is an Order for the Sheriff to restore the premises to the plaintiff.

The Writ must be taken to the Sheriff’s Office for service. A deputy will serve the Wr it on the
defendant(s) if they are home, or it will be posted on the door of the premises. In either case, the
defendant(s) will be notified that the sheriff can remove the defendant(s) 24 hours after the Writ
is served or posted.

If the defendant(s) fails to vacate the premises, the plaintiff must contact the Sheriff’s Office to
schedule an eviction. There are two types of evictions defined under Minnesota Statutes

-    removal of the personal property of the defendant(s)
-    an inventory of the personal property and storing it on the premises

If the plaintiff chooses to use the first option, it will be necessary for the plaintiff to arrange a
time with the Sheriff’s Office and then contact a licensed and bonded warehouse to inventory the
property, pack it for storage and remove it to the warehouse. Deputies will remove the
defendant(s) from the premises prior to the inventory and packing.

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If the plaintiff decides to store the personal property on the premises, it again will be necessary to
schedule a time for the eviction with the Sheriff’s Office. Once a time has been established, the
Statute directs that the plaintiff must mail that day a first class letter to the defendant(s) advising
of the date and time of the eviction. A telephone attempt to notify the defendant(s) is also

Deputies will remove the defendant(s) and the plaintiff will inventory the personal property in
the presence of a deputy. The Sheriff’s Office has inventory sheets available at no charge. The
plaintiff will keep a copy, the Sheriff’s Office will be given a copy to file with Court
Administration and the defendant(s) are entitled to a copy.

If this option is chosen, the personal property must be stored on the premises for sixty (60) days,
unless arrangements are made by the defendant(s) to retrieve it.

After 60 days the plaintiff can dispose of the property pursuant to Minnesota State Statute

The Sheriff’s Office charges fees for these functions.

                               WRITS OF EXECUTION
Writs of Execution are orders issued in District Court directing the sheriff to satisfy a judgment.
They must be directed to the sheriff of the county in which the assets to satisfy the judgment are
located and they may be for personal or real property.

Minnesota Statute Chapter 550 applies to executions.

Writs of Execution are valid for 180 days after the day they are issued.

It is the responsibility of the judgment creditor to locate assets belonging to the judgment debtor
which can be levied upon (seized) to satisfy the judgment. The most common of these are wage
levies and financial institution levies.

                                           Wage Levies
If a creditor wants the Sheriff’s Office to conduct a wage levy, it is the creditor’s responsibility
to provide a Writ of Execution directed to the sheriff of the county in which the judgment debtor
works. The judgment creditor or the creditor’s attorney must endorse this Writ. The creditor must
provide the Sheriff’s Office with an advance deposit. This deposit will be applied to the cost of
executing the Writ. Please call the Sheriff’s Office Civil Unit (952) 361-1267 for the current
deposit figures. The creditor, by law, must also provide the Sheriff’s Office with a check for

Revised May 2007                                  13
$15.00 made payable to the debtor’s employer. This check will be given to the employer when
the wage levy is served.

In computing the amount to be collected, the S heriff’s Office will include the amount of the
judgment, the interest at the rate indicated on the Writ and any additional costs that have been
added to the Writ by the Court Administrator. The Sheriff’s Office will also add the approved
5% commission on the above total, plus the Sheriff’s Office service fees.

If the judgment is totally satisfied, the creditor will receive the judgment amount, interest, the
additional costs, $15.00 employer’s fee and the advanced Sheriff’s Office deposit. If the
judgment is only partially satisfied, the Sheriff’s commission on the amount collected, and the
service fees, will be deducted from the amount collected.

If no money is collected, the Sheriff’s Office service fees will be deducted from the advance

The creditor is also required to mail an Exemption Notice to the debtor at least ten (10) days
prior to commencing the levy. The person receiving the Writ of Execution from the creditor will
ask the creditor to indicate, on the Writ, that the Exemption Notice has been given to the debtor.

Wage levies are conducted for a 70-day period, after which the employer will send a check to the
Sheriff’s Office. If the check is insufficient to satisfy the judgment, creditor must provide another
fifteen dollar payment to the employer. The Sheriff’s Office will then conduct a second 70-day
levy. If the judgment has not been satisfied at the end of the 180 day lifespan of the Writ of
Execution, the creditor must obtain a new one and request the Sheriff’s Office to continue to

                                Financial Institution Levies
The Sheriff’s Office requires an advance deposit just as it does for a wage levy. Please contact
the Sheriff’s Office Civil Unit (952) 361-1267 for the current deposit figures. In addition to the
advance deposit, the creditor must also provide the Sheriff’s Office with a $15.00 check made
payable to the financial institution.

The name on the account being levied must be the same as the name of the judgment creditor on
the Writ of Execution or the financial institution will not honor it. Often times the financial
institution will require more information to be sure they are levying on the correct judgment
debtor. It is possible to levy on a joint account.

If the debtor is not a corporation or business, the creditor must provide the Sheriff’s Office with
two copies of the levy exemption notice to be given to the financial institution when the levy is
served. These forms are available at the Sheriff’s Office.

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                                 Other Types Of Levies
It is possible to levy on other items, including vehicles, boats, snowmobiles, recreational
vehicles, etc. Please read Minnesota State Statute chapter 550 for more information. The
Sheriff’s Office staff can discuss non- legal questions with you; however, you are advised to
contact an attorney if you have legal questions.

Non-homesteaded real property may also be levied and sold. This is a complex procedure and
should be discussed with an attorney.

This guide is not meant to be a comprehensive document. It does not provide
legal advice, nor does it attempt to suggest a course of action if there are legal
issues to be resolved. If you need legal advice contact an attorney. Our office
is not permitted to provide legal advice nor can we recommend any specific

The following organizations or departments will be referred to in various sections contained
within this guide:

               U.S. Bankruptcy Court
               301 US Court House
               300 South 4th Street
               Minneapolis, MN 55415
               (612) 664-5200

               Carver County Court Administration
               604 East 4th Street
               Chaska, MN 55318-2102
               (952) 361-1420

               The Victim/Witness Coordinator
               Carver County Attorney’s Office
               604 East 4th Street
               Chaska, MN 55318-2102

               Southern Valley Alliance for Battered Women
               PO Box 116
               Belle Plaine, MN 56011
               (952) 873-4214

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               Carver County Dispute Resolution Program
               Carver County Attorney’s Office
               604 East 4th Street
               Chaska, MN 55318-2102
               (952) 361-1400

               Carver County Sheriff’s Office
               606 East 4th Street
               Chaska, MN 55318-2102
               (952) 361-1212
               (952) 361-1267 Civil Unit direct number

This is a brief guide to Civil Process for the citizens of Carver County. We have provided
information which answers the most common questions received by our staff.

This guide is not a comprehensive docume nt. It does not provide legal advice, nor does it
attempt to suggest a course of action if the re are legal issues to be resolved. If you need
legal advice, contact an attorney. Our office is not permitted to provide legal advice nor can we
recommend any specific attorney.

In most cases, reference is made to applicable Minnesota State Statutes. These statutes are
subject to change, so it is recommended that you review the most recent version of the statutes
before taking action. The state statutes are available for your use on line at The Minnesota State Statute books are available for your use at the
Chaska branch of the Carver County Library. Additionally there is a law library located near the
County Attorney’s Office on the second floor of the Carver County Justice Center.

Should you have any questions, please contact the Carver County Sheriff’s Office, Civil Unit at
(952) 361-1267.

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Description: Restraining Order Criteria document sample