§ 29-30-106 — Procedure to expedite action for writ of possession

Tennessee § 29-30-106

• Jurisdiction: Tennessee
• Title: 29

Text

(a) As an alternative to commencing an action to recover personal property as otherwise provided in this part, any party needing or desiring to expedite the proceeding may commence and expedite the action by proceeding as follows: (1) Application for a writ of possession may be made to the appropriate court at the beginning of the first session of court during the day, or at such other time of day as the court, by local rule, has established. Either simultaneously with the making of such application or prior thereto, the party seeking a writ of possession shall file a verified complaint with which shall be exhibited a copy of any writing upon which the alleged claim to possession is founded. Upon the making of such application, the court shall hear the parties and shall order the writ of possession issued giving the plaintiff immediate possession of the property where the court finds either: (A) That at least five (5) days prior to such application plaintiff mailed by certified mail or delivered to defendant a notice of the time and place of such application and that: (i) Such notice had either been received by the defendant, or was directed to the defendant at the address stated in any writing, signed by the defendant, and on which the plaintiff's claim to possession is founded; (ii) Such notice was accompanied by a copy of plaintiff's complaint, including a copy of any writing on which the plaintiff's claim to possession was founded; and (iii) The plaintiff is entitled to possession of the property, or that there is no substantial controversy as to the plaintiff's right to such possession; or (B) (i) (a) That the property was obtained by fraud, misrepresentation or theft, or (b) That the defendant is: (1) Concealing the property; (2) Likely to remove it from the jurisdiction of the court; (3) Likely to dispose of the property; (4) Endangering the property by unusually hazardous use; or (5) Seriously impairing the plaintiff's security interest in the property, such as by use in some manner other than that contemplated by the parties, or by failing to maintain hazard insurance on the property where the written instrument or agreement on which the plaintiff's claim is founded requires such insurance; (ii) A writ of possession issued pursuant to this subdivision (a)(1)(B) shall be conditioned on the plaintiff's posting a bond in an amount fixed by the court which shall not be less than the value of the property; (2) (A) If, at the time the plaintiff makes application pursuant to subdivision (a)(1)(A), the defendant appears and admits in open court the plaintiff's right to possession of the property, the court shall issue a writ of possession to the plaintiff; (B) If, at the time the plaintiff makes application pursuant to subdivision (a)(1)(A), the defendant does not appear, there shall be an inference that the defendant does not dispute the plaintiff's right to possession, and the writ of possession shall be issued if the verified complaint demonstrates the plaintiff's right to possession. The writ shall direct the officer to take possession of the property and deliver it to the plaintiff and to summon the defendant to appear and answer within ten (10) days if the action is in the court of general sessions and within thirty (30) days if in any other court; (C) In like manner, where a writ of possession is issued pursuant to subdivision (a)(1)(B), the writ shall direct the officer to take possession of the property and deliver it to the plaintiff and to summon the defendant to appear and answer within ten (10) days if the action is in the court of general sessions and within thirty (30) days if in any other court; (D) When the defendant appears and resists the plaintiff's application for a writ of possession made in accordance with subdivision (a)(1)(A), the court shall at that time either try the action or: (i) Fix a time within which defendant shall answer; (ii) Fix a time for the trial; and (iii) Determine which party shall have possession of the property pending a final determination by the court and condition such possession upon the posting of such bond as the court may deem advisable. Where such party fails or refuses to post such bond, the officer shall take possession of the property and retain it either until the bond is posted or until the court enters its final judgment. (b) Except for the provisions of this section which must be complied with in order to expedite the proceeding, actions commenced pursuant to this section shall be governed by the remaining provisions of this part.

Legislative History

Acts 1973, ch. 365, § 6; T.C.A., § 23-2346.