What is a Writ of Restitution? Free Consultation 801-676-5506

It’s always good business practice for creditors to obtain security for their commercial agreements, namely, interests in tangible property that can be used to compensate for losses in the event of a default. This form of collateral could be a house, a car, furniture or a piece of construction equipment. In some cases, the collateral is the very item being sold or leased in the underlying commercial agreement. When a secured agreement goes sour and the buyer or lender stops making payments, the creditor can fall back on its collateral to try and make itself whole.

When this plays itself out in the district court – usually through a trial or “mini-trial” called an evidentiary hearing. Think of a 4-8 hour day in court where you have to prove that you are entitled to this writ. The plaintiff has access to powerful pre-judgment relief in the form of a Writ of Restitution. Here you’ll find more information about using a Writ of Restitution in debt collection. These can be used for other purposes too. Think real estate an rental properties. Also think about getting collateral for a business or other property. We help companies do this on a regular basis.

Unlike a writ of attachment, which is typically used for unsecured agreements, a Writ of Restitution is used when the plaintiff has a security interest in property held by the defendant. In essence, the writ acts as a court order authorizing a local sheriff to obtain possession of the collateral on the plaintiff’s behalf. If the underlying security agreement authorizes the plaintiff to take possession and sell the collateral, it may do so to mitigate any damages.

It’s important to note that when the collateral is a house or other residence, there are generally greater restrictions on what plaintiffs can do with the collateral before a judgment is entered. These cases proceed under state laws governing judicial foreclosures.

Whenever a plaintiff applies for a Writ of Restitution, it’s also good practice to simultaneously obtain a court order specifically directing the defendant to turn over the property in question. These turn over orders can be an effective tool in getting a defendant to surrender possession of any collateral. After all, failure to comply with such orders could result in contempt proceedings against the defendant.

The Elements of Writ of Restitution

Obtaining a pre-judgment Writ of Restitution typically requires showing:
1. That the plaintiff is entitled to possession of the property (i.e. the plaintiff has a valid security interest);
2. A showing that it is not adverse to the public interest;
3. That the property is wrongfully detained by the defendant (i.e. the defendant is violating the security agreement);
4. A specific description of the property and an estimate of its value; and
5. A substantial likelihood of success on the merits.
6. You must show that, contractually, you are entitled to possession.

When it comes to the validity of a plaintiff’s security interest, it’s important for creditors to ensure that their interests are properly perfected. That may require the filing of a UCC Filing Statement or the recording of a Deed of Trust/Security Agreement after the original agreement with the defendant is signed.

In order to obtain a Writ of Restitution, or any other judicial relief, you first need to file a civil lawsuit against the person or business that owes you money. Once your complaint has been filed and served, you can apply for a Writ of Restitution from the court, which you may initiate at any time before judgment.

Usually a plaintiff will apply for a Writ of Restitution immediately due to the concern that a defendant may hide, transfer or damage the collateral. However, in some cases, plaintiffs may want to wait to file a Writ of Restitution application until they can learn more about its condition and location during the discovery process. Next, a plaintiff will need to file application and notice documents (typically these are on court-created forms). In addition, it will have to submit declarations and evidence establishing all of the elements required to obtain a Writ of Restitution. The court will then set a hearing date to review the evidence and any opposing evidence submitted by the defendant before deciding whether to issue the Writ of Restitution.