Vacating a Judgment and Staying Enforcement of a Writ of Restitution
Authored By: Northwest Justice Project
- Should I read this packet?
- What is a writ of restitution?
- How is the writ different from a judgment in an eviction case?
- Why should I care if the court issues a judgment for the landlord?
- I got a Writ of Restitution. I do not think the judge should have done this. What can I do?
- What if I need legal help?
- Forms you will need
Your landlord is threatening to evict you OR
Your landlord has filed an eviction case against you in court, especially if you did not deliver a written response ("notice of appearance" or "answer") on time OR go to a show cause hearing OR
You were served with an eviction summons saying you must pay rent money into court or file a certification by the deadline, and you did neither
This packet has forms and instructions you can use to try to stop the court from enforcing a judgment and writ of restitution against you. This would allow you to
Stay in the property a little longer.
Get your case back before the judge for a hearing.
*A judgment is a court order. The judge rules for or against you in a judgment.
It is a court order directing the sheriff to physically remove you and your things from the place you are renting. We call the sheriff's actions in carrying out the writ "enforcing the writ."
The judgment states the amount of money you owe your landlord.
The landlord can use the judgment to collect what you owe by
garnishing your wages or bank accounts
seizing your personal property and selling it
I got a Writ of Restitution. I do not think the judge should have done this. What can I do?
If you believe you had a good reason for not responding to the eviction summons or appearing at the show cause hearing, you may ask the court to vacate (withdraw) the judgment and stay (temporarily stop) the eviction. If the court agrees you may have had good reasons for not responding or appearing, it may stay enforcement of the writ of restitution until it can hold a hearing on your motion to vacate the judgment.
You may start the procedure for vacating the judgment and staying the writ any time before enforcement of the writ by following these steps:
Step 1: Notify the landlord's (plaintiff's) lawyer.
*If the landlord is representing himself/herself, follow all of these procedures with the landlord directly.
The court will not stay the eviction until you have notified your landlord's lawyer of the specific time you are going to court to ask just for the stay of the writ. You should call the lawyer and try to agree on a date and time to meet in the Ex Parte Department of the Superior Court where you must present your documents.
*Ask the clerk about the Ex Parte department's hours of operation.
If the lawyer does not want to meet you in court, try to agree on a hearing date and time for your entire motion to vacate the judgment and stay the writ. That hearing usually happens three to ten days from the date you present your documents to the court.
If you cannot reach your landlord's lawyer after trying for more than half a day, or if you reach the landlord's lawyer but cannot agree on a time to meet at court on a hearing date for the motion to vacate or on temporarily stopping the eviction, you may give notice of the time you will go to court to try to stay the writ of restitution. You should give at least three hours' notice. You may give the notice by phone. If you cannot speak to your landlord's lawyer directly, leave a message with a receptionist or secretary or on an answering machine.
Your message should:
Identify the case by case number and plaintiff's and defendant's names
State the date and time you are going to the Ex Parte Department to present your documents
State what you will ask the court to do
*Example: "I will ask the court to set a hearing date on my motion to vacate judgment and stay the writ of restitution."
When you go to court, the judge or commissioner
will review your request to stay the writ
may schedule a hearing date on the rest of your motion
Step 2: Prepare Your Documents
You must fill out
- an Order to Show Cause and To Stay Enforcement of Writ of Restitution
A. Motion and Declaration to Vacate Judgment and to Stay Enforcement of Judgment and Writ Of Restitution
This document tells the court why it should vacate (cancel or withdraw) the judgment against you and stop the eviction. On the first page, fill in the parties' names and the case number. Fill in the blanks.
Paragraph 2: explain your reasons for the motion. First state your "procedural defenses," that is, the good reason(s) why you did not respond to the summons and complaint on time or appear at a show cause hearing. Examples:
I was not served with a summons and complaint.
I responded to the summons and complaint in time, but the court issued a writ of restitution anyway without a hearing.
I was not able to answer the summons and complaint or appear at the show cause hearing because... (give your reason)
In the same space, tell the court about your defense to the eviction. Examples:
I paid my rent.
I did not pay my rent because my landlord did not make needed repairs.
My landlord is evicting me because of my race or disability or other illegal discrimination.
*Hint: The court will usually not accept reasons such as "I need more time to move."
Paragraph 3: Put the name of the person/s (including yourself) whose declarations you are submitting in support of the motion.
Paragraph 4: Put any state or local laws or other legal authority supporting your motion.
Sign the motion. Print your name, address and phone number underneath.
In the "declaration" part of the form, state the facts and details supporting the reasons for your motion. Examples: "I came back from the store and found the eviction summons and complaint inside my screen door. Nobody was home while I was at the store." "I paid my rent in cash. My landlord refused to give me a receipt."
If you are also submitting declarations from other people that support yours, you should refer to them as appropriate. (You can attach other declarations to your motion.)
At the end of the declaration, briefly describe how you tried to notify your landlord's lawyer that you are going to court. Sign the declaration. Fill in where and when you signed it.
B. Order to Show Cause and To Stay Enforcement of Writ of Restitution
This order sets the date and time for the hearing on your motion to vacate the judgment. It also stays enforcement of the writ of restitution until after that hearing.
At the hearing, the court will listen to you and the landlord and make a decision on your motion and the eviction case. You must fill in the parties' names and the case number yourself, and sign the document. The judge/court commissioner in the Ex Parte Department will fill in the rest.
Step 3: Get court approval of the motion hearing date
You must bring the completed forms to the Superior Court's Ex Parte Department. (Ask the clerk about this department's hours of operation.) Once there, give the clerk your paperwork. Wait for them to call your name.
The judge/court commissioner will review your motion and other documents. S/he will probably ask you what notice you gave the landlord's lawyer about your plans to appear in court to stay the writ. The judge/commissioner may ask you to try giving your landlord's lawyer notice again. Once the judge/commissioner is satisfied that you tried hard enough to notify the landlord's lawyer, you may get a hearing date on your motion and an order stopping the eviction until after that date if the judge/commissioner also finds that you may have a legal basis for vacating the judgment.
Step 4: File and serve the papers
After the judge/commissioner fills in the hearing date and time and signs the order to show cause, you must file the original of the order with the clerk's office. You must also bring the sheriff's office a certified copy of the order, unless the court says you can deliver a photocopy.
Before you file the originals with the clerk, make two copies of each:
One copy for your records
The other for delivery to your landlord's lawyer (or the landlord, if s/he has no lawyer)
Next, ask a clerk for their filing stamp. Stamp the first page of each of your copies.
Give the clerk the originals. Ask the clerk for a certified copy of the Order to Show Cause and To Stay Enforcement of Writ of Restitution (unless the judge/commissioner lets you serve a photocopy of the order on the sheriff instead). There will be a charge (usually several dollars) for the certified copy.
Take the certified copy (or photocopy) of the order to the sheriff's office. YOUR EVICTION WILL ONLY STOP IF YOU TAKE THIS COPY TO THE SHERIFF.
Finally, deliver one set of copies to your landlord's lawyer or to the landlord if s/he does not have a lawyer. Keep the other set. Bring your copies to the hearing on your motion to vacate judgment.
Step 5: Go to the motion to vacate hearing
On the hearing date, you must bring:
your answer to the complaint for unlawful detainer
other proof of your defenses
*Do not file this motion just to delay an eviction. Use this process only if you believe you have a real defense to the eviction. If you lose, you may owe more money for court costs and attorney's fees.
The hearing on the motion to vacate may be a chance for both parties to present their case again. The court may handle it like a show cause hearing on the eviction itself. There may be a larger judgment against you and/or liability for more attorneys' fees.
State law (RCW 2.32.090) says court clerks must not practice law. If you have any questions or problems, talk to a lawyer.
You have the right to be represented by a lawyer at the hearing. You are not entitled to have a lawyer appointed for you at public expense in a civil proceeding if you cannot afford one.
If you are low-income:
CLEAR is Washington's toll-free, centralized intake, advice and referral service for low-income people seeking free legal assistance with civil legal problems.
Outside King County: Call 1-888-201-1014 weekdays from 9:15 a.m. until 12:15 p.m.
King County: Call 211 for information and referral to an appropriate legal services provider Monday through Friday from 8:00 am – 6:00 pm. You may also call (206) 461-3200, or the toll-free number, 1-877-211-WASH (9274). You can also get information on legal service providers in King County through 211's website at www.resourcehouse.com/win211/.
Persons 60 and Over: Persons 60 or over may call CLEAR*Sr at 1-888-387-7111, regardless of income.
If you are deaf or hard of hearing, call 1-800-833-6384 or 711 to get a free relay operator. They will then connect you with 211 or CLEAR.
If you do not have MS Word, you may download the pdf version of this packet and print the forms.
This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of June 2015.
© 2015 Northwest Justice Project — 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial purposes only.)