Monthly Archives: February 2015

Tenant Delay Tactic While In Eviction Court

A Motion to Stay a Writ of Possession is a document that a tenant files with the court which has the result of “staying” or “stopping” an eviction action after a final judgment for the landlord has already been entered. The Motion to Stay a Writ of Possession is one of the less commonly used legal techniques by tenants to stall or stop an eviction action, but it does occur enough to warrant a better understanding of the process by a landlord. It is probably the least understood and more baffling Motions, so we will start with a brief overview of the eviction process and see where the Motion fits in.

The Eviction Process in a Nutshell

For the purposes of this article, we will explain the eviction process in its most simplest of forms and use the Uncontested Residential Eviction Action as our example. In an uncontested eviction, the tenant is served with the eviction summons and complaint either by the sheriff or a process server. The tenant has 5 business days after being served to “fight” the case by filing an answer with the court. In an uncontested case, the tenant does not file anything with the court, and the clerk of court enters a “default” against the tenant. The file then goes to the judge who after a cursory review of the file will sign the “Final Judgment”. The Final Judgment states that the eviction is granted in favor of the landlord, and the Final Judgment orders the clerk of court to “issue” a Writ of Possession, which is a document commanding the sheriff of the county to place the landlord in possession of the premises. NOTE: For an in-depth article on the Writ of Possession click here. The sheriff then takes the Writ of Possession, serves it on the person or the door of the premises if the tenant is not home and on the Writ of Possession it states the date and time that the sheriff will be back on the premises to remove the tenant, this usually being 24 to 48 hours from the time the Writ of Possession is served. The removal of the tenant is called the execution of the Writ of Possession. Theoretically, and in most cases, the sheriff comes back on the stated date and time, and the tenant is removed from the premises. The catch is that the tenant is able to file a motion with the court to derail this entire process at any time after the Final Judgment is signed by the judge and before the sheriff actually physically removes the tenant from the premises. This Motion is called a Motion to Stay the Writ of Possession

What is a Motion to Stay the Writ of Possession?

Simply put, the Motion to Stay the Writ of Possession is a document filed with the court asking the judge to “stay” or “stop” the sheriff from executing the Writ of Possession and removing the tenant. It can be a typed or handwritten document filed by the tenant or the tenant’s attorney if one is retained. The Motion to Stay the Writ of Possession may state that the tenant paid the rent, the eviction was unfair, the tenant needs more time, the case is defective or just about anything on earth that the tenant can come up with to convince a judge that the eviction should be stopped or make the judge feel sorry for the tenant. If the judge is swayed, the tenant gets their day in court.

How does the Motion to Stay the Writ of Possession affect the process?

Once this Motion is filed with the court, it is immediately sent to the judge, an emergency hold is put on the case, and the judge reviews the Motion and the reasons why the tenant feels they are entitled to having the Writ of Possession stayed. A Motion to Stay a Writ of Possession is taken very seriously by the court system, and the judge will almost immediately review the Motion. If the judge upon reading the Motion feels that there is some real legal basis why the eviction should be “stayed”, the judge will grant the Motion without a hearing and set it for a later hearing, or will set an EMERGENCY hearing to have the landlord and the tenant present evidence as to whether or why the Writ of Possession should or should not be stayed. If the judge upon reading the Motion to Stay the Writ of Possession feels it is completely without merit, the judge will enter an Order denying the motion, and the eviction continues on.

The judge Grants the Motion to Stay the Writ of Possession – Now what?

If the judge grants the Motion to Stay the Writ of Possession, the judge enters an Order Staying the Writ of Possession and will set a hearing, which basically gives the tenant a chance to present evidence as if the case were contested and a hearing were set in the beginning stages of the case. If the tenant has failed to post the rent money into the court registry, it is doubtful that the tenant will prevail, but if the tenant can prove that possibly they paid the rent and it was mis-posted by the landlord, or placed a large sum of money into the court registry, even if late, there always is a chance that the tenant can win the action. Your attorney may file a Motion to Lift the Stay of Writ of Possession if the judge grants the tenants Motion to Stay the Writ of Possession.

The judge Denies the Motion to Stay the Writ of Possession – Now what?

If the judge denies the Motion to Stay the Writ of Possession, the case proceeds on without delay just as if nothing happened. If there is a hearing set, and at that hearing the landlord prevails, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession. If your attorney has filed a Motion to Lift the Stay of the Writ of Possession, and the case is heard and decided in the landlord’s favor again, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession.

Sounds confusing doesn’t it? Is it all that bad?

The Motion to Stay the Writ of Possession is a bit confusing, as the landlord thinks they have won the case completely, only to be thrown this curveball at the end of the process. Will the case be delayed? Often, but usually by only a few days if the judge grants a hearing to the tenant. In the vast majority of cases when the tenant files a Motion to Stay the Writ of Possession, the judge reads it and denies it right then and there, and not a moment is lost and no hearing occurs. The worst case scenario is that the judge will grant the Motion to Stay the Writ of Possession, a hearing will be set, and the judge will feel your case is defective or there is a good legal basis why the tenant should not be evicted. Remember what Yogi Berra said: “It’s not over until it’s over”.

Is there anything that can be done to prevent the tenant from filing a Motion to Stay a Writ of Possession?

Absolutely nothing. A landlord’s best defense though is to make sure the eviction is filed properly, the notice was done with care, the landlord did not take any rent during the eviction action, and the landlord’s records are clear and concise.