THE EXECUTION OF A WRIT OF ASSISTANCE NEED NOT BE “COMMERCIALLY REASONABLE”

A recent federal court case addressed an Indiana writ of assistance, an infrequently-used yet useful tool for commercial lenders and judgment creditors who have acquired title to real estate at a sheriff’s sale but are having trouble getting possession.  The opinion, dated February 16, 2007, is from Judge Tinder of the Southern District of Indiana.  Here's a .pdf: DempseyOpinion.pdf.  The legal “drama” involved mortgagee Chase and mortgagor Dempsey.

Writ of assistance.  “Writ” is a fancy word for a court order “requiring the performance of a specified act, or giving authority to have it done.”  Black’s Law Dictionary.  A “writ of assistance” is a particular kind of court order “to transfer real property, the title of which has been previously adjudicated, as a means of enforcing the court’s own decree.”  Dempsey at 15.  In other words, the writ compels compliance with a prior order that directed action, such as the transfer of possession of real property. 

Indiana Trial Rule 70(A).  Writs of assistance are governed by T. R. 70(A), which states in part:  “When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of . . . assistance . . . directing the sheriff or other enforcement officer to deliver possession upon application to the clerk.”  Writs of assistance avoid the unnecessary expense and delay of the filing of a new lawsuit because the relief simply is triggered by an “application” (a motion) filed in the original action.  The application is a supplemental proceeding to enforce a prior court order.  The writ is enforced, in most cases, by the sheriff.  Harvey, Indiana Practice Series, Volume 4(A), Section 70.3.

The Dempsey circumstances.  The litigation concerned a property used by Dempsey and his professional service corporation as an office, which contained two additional rental units.  Chase held a mortgage on the property, but the underlying state court case was not a mortgage foreclosure action.  Chase became involved when a judgment creditor compelled a judicial sale of Dempsey’s building.  Chase ultimately purchased the property by bidding its indebtedness at the sheriff’s sale.  The problem was that Dempsey would not vacate the premises.  So, Chase petitioned the state court for a writ of assistance to take possession of the property.  Chase got the writ, and a Marion County Sheriff kicked Dempsey and his two tenants out.  In the subsequent federal court action, Dempsey contended that he should be awarded the property back, or at least compensated for the loss, due to the allegedly improper execution of the writ. 

Commercially unreasonable?  A few days before the July 19, 1995 eviction date, Dempsey left a phone message with Chase explaining that the visitation for his deceased cousin was July 19 and that the funeral was the next day.  Dempsey wanted more time.  His sympathy pleas were ignored, however.  In the federal court case, Dempsey argued it was “commercially unreasonable” for Chase not to wait a couple days before taking possession of the property.  Dempsey based his position on a standards found in Indiana’s Uniform Commercial Code.  For instance, one section in the Code requires the disposition of collateral after default to be done in a “commercially reasonable” manner.  I.C. 26-1-9.1-610.  The execution of a writ of assistance and the disposition of collateral are two different things, however.  Here, the sheriff already had disposed of the collateral via a sheriff’s sale.  Besides, Article 9.1 of the UCC “does not apply to writs of assistance anyway.”  Dempsey at 15, n.8.

Game over.  Judge Tinder held that there is no requirement to execute a writ of assistance in a commercially reasonable manner.  The sheriff has the “right and duty” to execute the writ immediately upon receiving it.”  Dempsey at 15.  Thus there was no obligation under Indiana law for Chase to wait a few extra days due to a death in Dempsey’s family.  “Chase’s right to the property had already been adjudicated.  Dempsey could have avoided his trouble by moving out voluntarily and promptly when Chase obtained title to the property as opposed to forcing Chase to utilize the Sheriff’s Department to enforce the court’s decision.”  Id.  The Dempsey decision is important because it rejects a reasonableness standard, or any standard for that matter, for the execution of writs of assistance.  Once the writ is issued, the party’s over.  The writ should be executed immediately.  In practice, execution will depend upon the availability of the civil sheriff, but execution will not depend upon the sob stories of the judgment debtor. 

Go get a writ.  If you’re a foreclosing commercial lender or judgment creditor, if you have a foreclosure decree, if you acquired the subject property at a sheriff’s sale and if the borrower/judgment debtor will not vacate the premises, your remedy in Indiana is a writ of assistance under T. R. 70(A).  The county sheriff has a duty to execute the writ immediately and without regard to commercially reasonable standards.