In a claim and delivery action the lawsuit is for ownership
of personal property. A writ of possession (claim and delivery)
directs the Sheriff to seize the property and store it for 10
days. Ordinarily, the defendant has the opportunity to attend a
hearing to oppose the issuance of the writ. However, the court
may issue a writ of attachment ex parte without notice to the
defendant under certain circumstances. Usually, the court
requires the plaintiff to post an undertaking to protect
(indemnify) the defendant from a wrongful seizure. If the
defendant does not post a redelivery bond protecting
(indemnifying) the plaintiff within the 10-day period, the
Sheriff will deliver the property to the plaintiff, who must
hold it until a judgment is rendered in the lawsuit.
Property that is not in the possession of the defendant
cannot be seized if the Sheriff determines that the property is
the possession of a third party and not in the possession of the
defendant.
The Sheriff must serve copies of the writ and other court
documents on the defendant. If the writ of attachment was issued
ex parte and the defendant did not appear in the action, e.g.,
defendant did not file a response with the court, the service
must be made in the same manner as a summons. Otherwise, service
may be made by mail. Consequently, the instructions to the
Sheriff must indicate whether the defendant appeared in the
action if the writ was issued ex parte.
The plaintiff must make an advance deposit with the Sheriff
to cover levy fees and moving and storage costs. The Sheriffs
levy fees will vary depending on the need to utilize a keeper
while the property is being removed. The plaintiff should call
the Sheriff to determine the levy fee amount and to obtain the
name and telephone number of a moving and storage company. The
Sheriffs instructions must include an estimate for moving and
30 days storage and the name and telephone number of the moving
company employee who provided the quote. The advanced fee
deposit is the total of the Sheriffs levy fees plus the
estimated costs for moving and storage.
Unless the property is readily identifiable, specify in the
Sheriffs instructions the name and telephone number of a
"spotter" who will meet the Sheriff at the location
and identify the property.
If the Order for Issuance of the Writ includes an order
directing transfer and the property is not at the location, the
Sheriff will personally serve the order on the defendant. The
Order directing transfer commands the defendant to surrender the
property directly to the plaintiff and is used as an aid, not a
substitute for seizure by the Sheriff.
Property that is not in the possession of the defendant
cannot be seized if the Sheriff determines that the property is
the possession of a third party and not in the possession of the
defendant.