Writ Of Assistance: Timing And Other Practical Tips

This will expand upon my March 2, 2007 and April 28, 2008 posts relating to Indiana Trial Rule 70(A) writs of assistance, a tool secured lenders can use when they've acquired a sheriff's deed but have been unable to secure possession of the property.  Essentially, a writ of assistance is the method by which one can evict those unlawfully on, or in control of, the real estate.  The prior posts dealt with how writs of assistance can and should be executed.  The subject of today's post is more practical in nature.  The question is how quickly can the writ be executed or, in other words, once one triggers the process, how long will it take before the eviction occurs. 

Recent experience.  Last Fall, I tried a contested residential foreclosure case in Marion Superior Court (Indianapolis) and, with the help of my colleague Jeff Hammond, prevailed on all issues.  A sheriff's sale occurred, and our client obtained a sheriff's deed to the property at the sale.  The defendant/borrower refused to vacate the premises, so we initiated writ of assistance proceedings with the Marion County Civil Sheriff's Office.  Here is a brief summary of the steps involved:

1. A $100 fee had to be paid;
2. The sheriff sent a letter to the borrower, almost immediately, informing the borrower that she had ten days to vacate the property;
3. About three days after the mailing of the letter, a deputy went to the property and posted a notice on the front door informing the borrower that she must vacate;
4. On about the eleventh day, a deputy went back out to the property to determine whether it had been vacated; since in our case it was not, the sheriff scheduled a "move out date"; the sheriff determined the move out date by the volume of move out orders, usually seven to fourteen days later;
5. Before the move out date, we (the plaintiff) had to contract with, and schedule, a bonded mover and locksmith to be present (a client represented had to be scheduled to be present at the move); and
6. On the move out date, a deputy was present to ensure the borrower vacated all persons from the property and stayed to oversee the removal of the personal property and the changing of the locks. 

All told, in our case, it took twenty-nine days to evict the borrower and repossess the property. 

Remember, this was in Marion County, and, as noted in my April 14, 2008 post Indiana Sheriff's Sales - Local Rules, Customs and Practices Control, there are ninety-two counties in Indiana and thus ninety-two different sets of applicable rules.  As such, the timing may and likely will vary from county to county.   

Skip a step.  With the standard language we built into the post-trial order signed by the judge, we were not required to separately file for a writ of assistance in order to trigger the process.  According to the Marion County Sheriff, the order had already provided the office with the authority to proceed.  Here's what our order said:

Immediately after the sale and foreclosure, the Sheriff of Marion County, Indiana shall execute and deliver to the purchaser a deed of conveyance to the Real Estate and upon the request of the purchaser, shall eject and remove [defendant/borrower] and any party claiming from or through her that occupies any part of the Real Estate, and shall remove therefrom the personal property of any such person or entity and shall, in all other respects, deliver and place the purchaser in possession.

I would encourage the use of such language as it should enable one to bypass a step in the process.

Commercial cases too.  At the end of the day, in the vast majority of commercial mortgage foreclosure actions, the borrower will cooperate and surrender the property.  Having said that, one never knows when a unique case will arise in which a secured lender may need to resort to the remedy of a writ of assistance.  Thanks to Jeff Hammond for his input into this post.