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I was just hoping to gain some insight against a writ of…

Customer Question
Hi. I was...

Hi. I was just hoping to gain some insight against a writ of possession and mitigating circumstances in order to understand the options available.

Lawyer's Assistant: Where is the property located?

Harris County (Houston), Texas

Lawyer's Assistant: Has any paperwork been filed?

Yes. This process has been on going for a few months. There were many types of paperwork files.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Writ of Possession taped to door. Opposing counsel knew we would be out of town at a clinical trial for our terminally ill son. Neighbor called early this afternoon to let us know writ was posted our door today. We are in Ohio until next week. We have 4 children, one whom (once happy and healthy) has lost his ability to see and walk over the last few yrs. Our home was built with adaptive tools/modifications. I have filed a motion to extend time to file appeal until we arrive home. But since I had to be there in person, it was denied. We have reached out to several services for assistance and yet to hear back or receive help. We have a wrongful foreclosure suit pending separately which we intend to see through. What can I do to stay the writ from Ohio? Is it out of the question to have the hearing via phone? We have attempted to rent/find alternate housing, but with our children - son in particular - its proving difficult. With the recent foreclosure listed on our credit, we have been turned down 12 times for a rental home. No idea what to do next. The woman at the clerks office nonchalantly says to pay the $36K superseadeous bond, like its no big deal. I have ask if I can confer with the judge. I was told my only option was to call opposing counsel. I have called and emailed without a reply. I just cant understand how all of this is legal...

Submitted: 12 months ago.Category: Real Estate Law
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Customer reply replied 12 months ago
Also, there is no vacate or listed date on the writ of possession other than the date the constable taped/delivered and the date the judge signed the judgement (7/31/17)
Answered in 21 hours by:
8/24/2017
Real Estate Lawyer: Amadeo Rivera,
 replied 12 months ago
Amadeo Rivera
Category: Real Estate Law
Satisfied Customers: 88
Experience: Sr. Trial Attorney II at El Paso County Public Defender
Verified

Hello,

My name is Marcelo. I have been practicing law for 17 years. In that time, I have handled many evictions, both from the landlord's side and from the tenant's side.

I have pasted the applicable section of the Property Code below and bolded the section that applies to time. Unfortunately, Texas Landlord/Tenant law is very favorable to the landlord. As for payment of the supersedeas bond, whoever told you that is giving you bad advice. The timelines are absolute. A notice of appeal must be filed and the bond posted on or before the fifth day after the judgment is signed. That is jurisdictional. If you miss the timeline, the judgment is final and unappealable.

Once the time for perfecting appeal passes, the landlord can get the writ of possession at anytime. The statute says that the constable is to provide a date when the writ will be executed, which shall not be sooner than 24 hours after the date of the writ. In practice, most constables (at least here in El Paso County) don't like executing writs of possession. Usually, they will work with you to move out, as long as the tenant is reasonable with timing.

The constable is required to execute on the writ though, once it is executed. I have the following suggestion: call the constable, find out how much time he can allow you. Unfortunately, you are really stuck with what the constable can do in light of what the landlord wants done. That's first though. Call the constable. Talking to the judge won't do anything, even if he/she were to take the time.

If you need more time than you can get from the constable, I think your only option is to try to speak with a bankruptcy attorney and file a petition in bankruptcy. A bankruptcy attorney should be able to file a "bare bones" or emergency petition even though you are in Ohio, but you will have to act quickly.

Once a petition in bankruptcy is filed, an automatic stay goes into effect, preventing any action against the debtor, or property of the bankruptcy estate, without filing a motion to lift stay with the bankruptcy court. Bankruptcy is a good tool for halting action that is otherwise unstoppable.

I hope this helps. If so, please accept my answer and provide positive rating for me, so I can be paid. If you need additional information, please feel free to ask. I'm terribly sorry for your situation.

ec. 24.0061. WRIT OF POSSESSION. (a) A landlord who prevails in an eviction suit is entitled to a judgment for possession of the premises and a writ of possession. In this chapter, "premises" means the unit that is occupied or rented and any outside area or facility that the tenant is entitled to use under a written lease or oral rental agreement, or that is held out for the use of tenants generally.

(b) A writ of possession may not be issued before the sixth day after the date on which the judgment for possession is rendered unless a possession bond has been filed and approved under the Texas Rules of Civil Procedure and judgment for possession is thereafter granted by default.

(c) The court shall notify a tenant in writing of a default judgment for possession by sending a copy of the judgment to the premises by first class mail not later than 48 hours after the entry of the judgment.

(d) The writ of possession shall order the officer executing the writ to:

(1) post a written warning of at least 8-1/2 by 11 inches on the exterior of the front door of the rental unit notifying the tenant that the writ has been issued and that the writ will be executed on or after a specific date and time stated in the warning not sooner than 24 hours after the warning is posted; and

(2) when the writ is executed:

(A) deliver possession of the premises to the landlord;

(B) instruct the tenant and all persons claiming under the tenant to leave the premises immediately, and, if the persons fail to comply, physically remove them;

(C) instruct the tenant to remove or to allow the landlord, the landlord's representatives, or other persons acting under the officer's supervision to remove all personal property from the rental unit other than personal property claimed to be owned by the landlord; and

(D) place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location, but not blocking a public sidewalk, passageway, or street and not while it is raining, sleeting, or snowing, except as provided by Subsection (d-1).

(d-1) A municipality may provide, without charge to the landlord or to the owner of personal property removed from a rental unit under Subsection (d), a portable, closed container into which the removed personal property shall be placed by the officer executing the writ or by the authorized person. The municipality may remove the container from the location near the rental unit and dispose of the contents by any lawful means if the owner of the removed personal property does not recover the property from the container within a reasonable time after the time the property is placed in the container.

(e) The writ of possession shall authorize the officer, at the officer's discretion, to engage the services of a bonded or insured warehouseman to remove and store, subject to applicable law, part or all of the property at no cost to the landlord or the officer executing the writ.

(f) The officer may not require the landlord to store the property.

(g) The writ of possession shall contain notice to the officer that under Section 7.003, Civil Practice and Remedies Code, the officer is not liable for damages resulting from the execution of the writ if the officer executes the writ in good faith and with reasonable diligence.

(h) A sheriff or constable may use reasonable force in executing a writ under this section.

Added by Acts 1985, 69th Leg., ch. 319, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 314, Sec. 1, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 74

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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