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What Is a Writ of Possession?

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  • Written By: M. Lupica
  • Edited By: John Allen
  • Last Modified Date: 29 July 2014
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A writ of possession is a court order that grants the right of possession in any tangible property to a party that is not currently in possession. The writ is to be delivered to the party currently in possession of the property by a sheriff who will enforce a transfer of possession to the rightful party. In order to obtain this type of order, the party must file a motion in the jurisdiction in which the property is located and the court must find that the circumstances meet the requirements for its issuance. In the event the person on whom the writ of possession is served wants to fight its issuance, he or she may file an emergency motion to stay the writ in the court in which the writ was issued.

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A writ of possession may be issued to anyone who is unlawfully in possession of the property of another. Such writs apply both to circumstances where someone unlawfully remains in a residence owned by another — e.g., after an eviction — or if that person retains possession of an item that belongs to another. For example, if a person borrows an item from someone else, and the rightful owner asks for its return but his or her requests are ignored, then the owner may seek an issuance of a writ of possession for the item’s return. The requirement is simply that the person who files for the possession writ has the right to immediate possession of property that is wrongfully being withheld by another.

Generally, if a writ of possession is issued, it will be posted on the door of the party who is in unlawful possession of the property. If the item is not returned or the party does not move off the property within a period of time, usually 24 hours, then a sheriff will appear at the residence after that stated period of time to enforce the writ. If the unlawful possessor fails to comply with the order, he or she may be held in civil contempt of court in addition to facing other penalties, such as conversion of the property unlawfully held.

The person on whom the writ is issued may file a motion to stay the writ of possession. There are four requirements for a valid emergency motion to stay the writ. Most importantly, there must be legitimate reasons stated showing that the person is actuality entitled to possession of the property. The motion must also request that the judge stop the sheriff from enforcing the writ and a further request that the judge grant a hearing so the party may respond to the charge of unlawful possession. Last, a copy of the motion must be served to the opposing party’s attorney. If the emergency motion is granted, then the party who filed the motion will be granted a chance to tell his or her side of the story in court.

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anon352406
Post 3

Check out simultaneous Writs of Standing (Locos Standi) just to secure your rights, then Writ Scire Facias, Writ of Prohibition. Also try a Writ of Habeus Corpus for property rights under the First Amendment of life liberty, property, and pursuit of happiness citing the U.S. Constitution. Been there.

anon304450
Post 2

Once given notice, how does one find the amount of time there is before the writ of possession must be completed before it expires and they have to get a new one? or does it linger indefinitely?

By the way, virtually every foreclosure is a con, as well as being without authorization from a secured party (which is you) and it is confirmed that it is "uttering" if they do not present for payment the original properly transferred and properly recorded original Note and Deed of Trust together with documentation that they "are entitled to payments under this Note".

Also, generally you will find that the "attorneys" bringing the action also do not have a letter from the bank nor the only party of interest (you) to act on their behalf. They are carpetbaggers conning the ignorant judges and everyone else as well, and/or the judges make themselves a party of interest in your counter claim, whereby he/she willingly participated in uttering and fraud upon the court, racketeering, embezzlement, domestic terrorism, impersonating an officer and a dozen others.

But for us, it is for damages, defamation of character, reliance damages, pain and suffering, etc. Please read the code (until amendment 11 is repealed, though technically it is "notwithstanding" because it is unconstitutional in that it violates its obligation to enforce due process and the protections of the people), but for now we must sue them personally as the courts have determined that they no longer hold the position once they breach it and therefore are personally responsible and have no immunity, although the state can be sued if they "consent" to being sued. But there are the bonds which they must have in order to protect us from any injury as a result of the position and the one holding it.

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