Motion to Quash Writ

Author: Todd Christiansen | Category: My Evictions

I happen to be down at court filing some eviction paperwork and the ladies behind the desk (they know me well since I am in there all the time-and I chat with them), told me that they had just processed a motion to “quash” a writ.  I asked them how a motion to “squash” a writ worked and they laughed because it is quash not squash!

Any how, the background is that a bank foreclosed on a rental property.  That bank uses our management company to manage their REO inventory until they can get it sold.  This particular property had a tenant in it.  She had not paid since the bank took the property over (several months).  We filed an eviction against her, she did attend court and agreed to a repayment plan.  That repayment date came and went.

We went back down to get the writ to have the sheriff remove her from the property.  She found free legal-aid to review her case.  They looked up the owner of the property in the tax records and found that the previous owner was still on the tax records (the county is up to 2 months behind in deed work).

The eviction lawyers filed an emergency motion to quash the writ.  This is done by taking the writ that is served by the sheriff, going back down to court and filing the proper paperwork.  In this county (which is very fair to both tenants and landlords), this motion must be approved by a judge prior to being served to insure that there is merit to the case.  Once approved, a copy must be mailed to the opposite party, served on them, and a $322 fee must be paid (which can be waived by the court if the tenant is low-income).

In this situation there was merit because the lawyers showed that the owner of record (even though out of date) was the previous owner (that was foreclosed on) and therefore our eviction was invalid because it was filled out in the name of the bank.

Now, we have documentation to show that this home was foreclosed on by the bank and that the bank is the proper owner, but it slows down the tenant eviction process and probably costs us another week.  Luckily, this is not a trick that most tenants will use.  In the end, this tenant still has not paid 4 months of rent and will be evicted eventually.   She is just delaying the inevitable!

3 Responses to “Motion to Quash Writ”

  1. Very well said. It’s refreshing to find a blog that I can refer my readers to. Keep up the good work!

  2. So what you are saying is, even AFTER the sheriff serves the writ & evicts the tenant, the tenant can REGAIN possession of the residence & move back in after the sherrif removes her?

  3. No. Not exactly. I don’t think they could reverse the Writ after the sheriff moves her out.

    I think that the tenant would need to sue to take posession back after she has been removed. Plus, remember that she would have to pay any past due rent to stay anyway.