How is Writ of Possession served

[aviddiver]

Hello,

How is Writ of possession (UD eviction) served if judgment was on 01/07? Can the landlord attorney set a specific date to serve it and/or post it at the door? Or is it at the discretion of the server (Marshal or Sheriff) as to when they can serve it?

Thank you.

 

[mightymoose]

Is that January of 2007?
You may need to go through the motions again...

 

[aviddiver]

I'm sorry, I think I have the chain of event down and wondering if there is a "Due Process" issue that can be pursued. In California. I believe the apartment is rent-controlled:

01/07/2011, Friday: Judgment for Writ of Possession
01/13/2011, Thursday: Writ of Possession served by posted at the door with 5 days to move out by 01/18/2011.
01/14/2011, Friday: Pro Se; missed ex parte hearing for Stay of Eviction; clerk says have to be in court by 1300hrs.
clerk did not accept papers for Stay of Eviction because it is an ex parte and needs 24 hrs notice to Plaintiff (landlord)
01/15/2011, Saturday: no court
01/16/2011, Sunday: no court
01/17/2011, Monday: Legal Holiday (MLK); no court
01/18/2011, Tuesday: day to move out; no ex parte hearings on Tuesdays

Any leads are appreciated and can research further at law library.

Thank you.

 

[army judge]

This explains your query!

Part 4 - Writ of possession
If a judgment is entered against you and becomes final (for example, if you do not appeal or if you lose on appeal), and you do not move out, the court will issue a writ of possession to the landlord.The landlord can deliver this legal document to the sheriff, who will then forcibly evict you from the rental unit if you don't leave promptly.

Before evicting you, the sheriff will serve you with a copy of the writ of possession. The writ of possession instructs you that you must move out by the end of the fifth day after the writ is served on you, and that if you do not move out, the sheriff will remove you from the rental unit and place the landlord in possession of it. The cost of serving the writ of possession will be added to the other costs of the suit that the landlord will collect from you.

After you are served with the writ of possession, you have five days to move. If you have not moved by the end of the fifth day, the sheriff will return and physically remove you. If your belongings are still in the rental unit, the sheriff may either remove them or have them stored by the landlord, who can charge you reasonable storage fees. If you do not reclaim these belongings within 18 days, the landlord can mail you a notice to pick them up, and then can either sell them at auction or keep them (if their value is less than $300). If the sheriff forcibly evicts you, the sheriff's cost will also be added to the judgment, which the landlord can collect from you.

http://www.rentlaw.com/eviction/caevict_4.htm

SETTING ASIDE A DEFAULT JUDGMENT - If the tenant does not file a written response to the landlord's complaint, the landlord can ask the court to enter a default judgment against the tenant. The tenant then will receive a notice of judgment and writ of possession, as described above.

There are many reasons why a tenant might not respond to the landlord's complaint. For example, the tenant may have received the summons and complaint, but was not able to respond because the tenant was ill or incapacitated, or for some other very good reason.

It is even possible (but not likely) that the tenant was never served with the landlord's summons and complaint. In situations such as these, where the tenant has a valid reason for not responding to the landlord's complaint, the tenant can ask the court to set aside the default judgment.

Setting aside a default judgment can be a complex legal proceeding. Common reasons for seeking to set aside a default judgment are the tenant's (or the tenant's lawyer's) mistake, inadvertence, surprise, or excusable neglect. A tenant who wants to ask the court to set aside a default judgment must act promptly. The tenant should be able to show the court that he or she has a satisfactory excuse for the default, acted promptly in making the request, and has a good chance to win at trial. A tenant who thinks that grounds exist for setting aside a default judgment should first seek advice and assistance from a lawyer, a legal aid organization, or a tenant organization.


http://www.rentlaw.com/eviction/caevict_4.htm