1. Fill out Motion to Stay and Vacate and Order to Show Cause. Use the fillable motion and proposed order below.
2. Ask the court clerk the procedure for asking a judge to stay your case and sign your proposed Order to Show Cause.
3. Try to call or email the landlord or landlord’s lawyer to tell them you are going to ask the judge to stay the eviction and sign your Order to Show Cause. Tell them when you are going so they have a chance to show up.
4. Present your Motion and proposed Order to Show Cause to the judge. Ask the judge to sign the Order to Show Cause. Tell the judge why you could not show up to your original hearing, or that you did not know about it.
5. If the judge agrees to stop your eviction: make two sets of copies of the Motion to Stay and Vacate and signed Order to Show Cause. File the originals with the court clerk. Give the Sheriff a copy and let them know the eviction is paused for now.
6. Deliver one set of copies to the landlord or landlord’s lawyer. Keep the other set.
7. Go to the next hearing on the Motion to Stay and Vacate.
Step 1: Fill out the Motion to Stay and Vacate and Order to Show Cause forms
The Motion to Stay and Vacate asks the court to stop the sheriff from coming out to evict you. Even if the court grants your motion, it may only stop the eviction temporarily. After the court stops (stays) the eviction, it must have a hearing to decide if the original Judgment in the eviction case was correct.
- You must have very good reason to ask the court to vacate its original default Judgment for the landlord. Try to talk to a lawyer about what defenses you may have to your eviction.
You must fill out both forms.
Proposed Order to Show Cause (Vacate Judgment & Stay Enforcement of Writ)
- Schedules the hearing on your motion to vacate the judgment.
- Stops enforcement of the writ until after that hearing. At the hearing, the judge will listen to you and the landlord. The judge will then decide on your motion and the eviction case.
Fill out the caption. Put the county of the court, names of the parties, and case number.
IT IS ORDERED: In the first blank, put the landlord’s name. In the second, put the date the court entered the Writ and Judgment. The judge fills out the rest.
Motion and Declaration to Vacate Judgment and to Stay Enforcement of Judgment and Writ of RestitutionThis Motion says why the judge should vacate the judgment and stop the eviction. On the first page, fill out the caption the same as you did for the proposed Order.
Paragraph 2: explain your reasons for the motion. First, state the good reasons why you did not respond to the summons and complaint on time or appear at a show cause hearing. Some examples of good reasons:
- The landlord did not serve me with a summons and complaint.
- I responded to the summons and complaint in time. The court issued a writ anyway without a hearing.
- I could not answer the summons and complaint or appear at the show cause hearing because (give your reason).
Next, explain your defense to the eviction. Some examples of defenses:
- I paid my rent.
- I paid what I owed on a deposit installment plan.
- 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.
* Warning: The court will usually not accept reasons such as "I need more time to move."
Finally, say why you will be harmed if the writ is enforced, such as you have nowhere else to go or have a medical condition that makes it especially hazardous for you to be homeless.
Paragraph 3: Put the names of anyone, 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. Put your name, address, and phone number underneath.
In the “declaration” part, put 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 giving the court declarations from other people that support your written statement, you should refer to them in your own declaration as appropriate. You can attach other declarations to your motion.
At the end of the declaration, briefly describe how you tried to notify the landlord’s lawyer that you are going to court. Sign the declaration. Put the place and date you signed it.
Step 2: Ask the court clerk how to ask the judge to sign your proposed Order to Show Cause.
Many courts have an Ex Parte department to hear this type of Motion. Because of COVID-19, this hearing may take place over Zoom or another online option. If you need to appear in person, ask the clerk how to do this.
Step 3: Try to tell the landlord or landlord’s lawyer that you are going to ask the judge to sign your Order to Show Cause.
The law requires you to try to let the landlord or lawyer know when you are going to see the judge about a stay to an eviction, even if the hearing or motion is happening very shortly. It is best to call, but you can also email or FAX. Then you will have proof that you tried to contact the landlord or her lawyer. You must also send the landlord or their lawyer a copy of the motion.
- If the landlord does not have a lawyer, contact the landlord directly.
Step 4: Give your Motion to Stay and Vacate and Order to Show Cause to the judge.
The judge will review your request to stay the writ. The judge may ask you to explain your situation a little more. You must tell the judge why you would harmed if the judge allows the eviction to continue after all. Ask the judge to sign the Order to Show Cause.
Step 5: If you get a stay from the judge, make two sets of copies of the Motion to Stay and Vacate and signed Order to Show Cause.
File the originals with the court clerk. Give the Sheriff a copy.
If the judge thinks you have given a good reason for why your eviction should be paused, they will sign the Order to Show Cause. You will then have to come back for another court hearing and tell the judge why you have a defense against eviction, and why the court should cancel the default judgment from the first court hearing. After the judge puts the hearing date and time and signs the Order to Show Cause, you file the original with the clerk’s office. You must also send the sheriff's office a copy of the order saying your eviction is paused. Call the Sheriff’s office to see how they want a copy of the order delivered. You must take this copy to the sheriff to stop your eviction.
Sometimes, after the judge signs an order, the court will automatically file it or add it to the record of the case. Make sure you don’t have to be the one to give the clerk the signed copy.
Keep at least two copies of the signed order: One for yourself, and one for the landlord or their lawyer. If you are in person, ask a clerk for the filing stamp. Stamp the first page of each of your copies.
Step 6: Deliver one set of copies to the landlord or landlord’s lawyer. The other set is yours to keep.
Step 7: Go to the hearing on the Motion to Stay and Vacate.
The judge will tell you when you must come back for your next hearing. You must bring these things with you:
- your copies to the hearing on the Motion to Stay and Vacate
- your Answer to the complaint for unlawful detainer
- any receipts and letters
- any photos
- other proof of your defenses
- any witnesses