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Foreclosure and Loan Modification Blog

Is It Too Late to Save Your Home When You've Received a Writ of Possession?

[fa icon="clock-o"] Friday, May 20, 2016 [fa icon="user"] Maxwell Swinney [fa icon="folder-open'] foreclosure defense, life after foreclosure, foreclosure, writ of possession

GetOut-215158-edited.jpgYes, it is too late to save your home when you've received a writ of possession. To learn why, let's look at what it is.

A writ of possession is a court order that the sheriff will place on your door notifying you that you have to get yourself, your family, and all of your belongings out of your home after it is sold at a foreclosure auction or repossessed by the bank. The sheriff will come back 24/48/72 hours after posting the writ of possession to execute the writ, which is code for kicking you out.

It doesn't matter if you have nowhere else to go. At this point it's too late to do much.

But if you feel that you should have some extra time to move out you can file an emergency motion to stay the writ of possession which asks the judge to stop the sheriff from kicking you to the curb. Your motion to stay should state the following:

  • The reason(s) why the sheriff shouldn't kick you out of your former home
  • A request to the judge to stop the sheriff from executing the writ
  • A request to the judge for a hearing so you can explain your reasons

 

You would need to file the motion to stay the writ of possession as soon as the writ of possession is posted on your door. You must file the motion at the clerk of the county court where the case was filed and deliver a copy to the judge that ordered the writ. The judge is the only one who can stop the sheriff from putting you out.

It's possible the judge will grant your stay if you can show that you never received the paperwork you were supposed to receive or if your circumstances are such that you should be given more time to move.

If the judge does grant your emergency motion to stay the writ of possession, ask for a copy of the judge's order to be delivered to the sheriff so they don't come back and throw you to the curb.

Once it's gone this far, the best case scenario is that you can get a little extra time to move out. Your emergency motion isn't going to undo the foreclosure sale. You're still going to have to move out.

And after losing your home, as if that's not enough, you can still be sued for the deficient amount, which is the difference between what your home sold for and the amount owed on your loan. That's a nice little, or not so little, parting gift.

Keeping It From Getting This Far

Remember that the writ of possession will be issued after your home is sold at a foreclosure auction and the new owner is given the title to the property. If you want to avoid all this, you need to take action before your home is sold at auction.

The best thing to do, if you're able, is to hire an experienced foreclosure defense attorney as soon as you're served a summons and complaint. A good attorney should be able to prolong the foreclosure process for as long as possible and help you work for a permanent solution, like:

  • Loan modification. This allows you to reinstate your loan and keep your home with a permanently lower monthly payment.
  • Short sale. With a short sale agreement the bank lets you sell your home for less than you owe on your mortgage.
  • Deed in lieu of foreclosure agreement. This is where you give ownership of the home to the bank to avoid foreclosure.

There are even ways you can get money for leaving your house with a cash for keys agreement or a government HAFA short sale.

It's also possible to negotiate a deficiency waiver so you're not responsible for the difference between what your home sells for and what you owe on it.

All of these options are preferable to having a writ of possession posted on your door and being forced out of your home by the sheriff. You have better odds of success if you act as soon as possible, work with a professional, and take part in the process rather than rolling over and letting things happen to you.

 

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Maxwell Swinney

Written by Maxwell Swinney

About this Blog

Amerihope Alliance Legal Services is a leading loan modification and foreclosure defense law firm with attorneys licensed in 5 states. We have helped over 7,000 homeowners fight back and keep their homes.

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Our goal is to provide valuable information to help homeowners who are trying to obtain a loan modification or to stop foreclosure. You may schedule a free consultation at any time.

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