Vacating (Canceling) a Judgment and Staying (Stopping) Enforcement of a Writ after You Defaulted in your Unlawful Detainer (Eviction) Case
Authored By: Northwest Justice Project
If you receive a judgment or a writ of restitution and 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 (or withdraw) the judgment and stay (or temporarily stop) the eviction. #6314EN
- Should I use this?
- What are some examples of good reasons for defaulting?
- What happens if the judge grants my Motion to Stay and Vacate?
- Why should I file a Motion to Stay and Vacate?
- How does this Motion work?
- When should I file this motion?
- Where do I file it?
- Words and Expressions you should know
- Get Legal Help
Only if both of these are true:
your landlord filed an eviction lawsuit (unlawful detainer) against you in court
you did not go to the hearing in your case or file any answer to the court
If these are true, the court may say you defaulted.
- Do not use this packet if you went to the hearing and the judge ruled against you (you lost). You will need to follow a different procedure. Talk to a lawyer right away about filing for reconsideration or revision.
You did not get the summons or complaint.
You sent a Notice of Appearance or Answer to the landlord’s attorney that they did not provide to the court.
You tried to answer, but a serious situation outside of your control kept you from doing so, such as disability, hospitalization, or other misfortune.
Stay in the property a little longer.
Get a chance to tell the judge why you should have a hearing.
Maybe reverse the court’s decision to evict you.
- Do not file this motion just to buy time. File only if you believe you have a real defense. If you lose, you could owe more for court costs and attorney’s fees.
It is a chance to reverse the judgment against you and tell the court that you have a defense to eviction. If you let the judgment stand, 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.
The motion asks the judge to vacate (cancel) the judgment and stay (stop or delay) the eviction. A judge who agrees you had good reason for not responding or appearing may stay enforcement of the writ and hold a hearing on your motion to vacate the judgment.
You can do so any time before the sheriff enforces (carries out) the writ and evicts you. The sooner you do it the better. It may take time to get the documents filed, heard, and provided to the sheriff. You can also vacate a default even if you have already been evicted Use Motion to Vacate Judgment/Order [CR 60].
With the clerk of the same Superior Court that issued the Judgment and Writ.
The Motion to Stay and Vacate asks the court to stop the sheriff from coming out to evict you. Even if the court grants this motion, it may only stop the eviction temporarily. After the court stays (stops) 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.
You must fill out both forms.
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, the names of the parties, and the 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.
This Motion says why the judge should vacate the judgment and stop the eviction. On the first page, fill out the caption. Fill in the blanks.
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. Examples:
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. Examples:
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."
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 submitting declarations from other people that support your own, 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 the landlord’s lawyer that you are going to court. Sign the declaration. Put the place and date you signed it.
Many courts have an Ex Parte department to hear this type of Motion.
You should let the landlord or lawyer know when you are going to see the judge. 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.
If the landlord does not have a lawyer, contact the landlord directly.
The judge will review your request to stay the writ. Ask the judge to sign the Order to Show Cause.
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 bring the sheriff's office a certified copy of the order, unless the court says you can deliver a photocopy.
Before filing the originals with the clerk, make two copies of each. One is for your records. You will give the other to the landlord’s lawyer.
Ask a clerk for the filing stamp. Stamp the first page of each of your copies.
Give the clerk the originals. Ask for a photocopy of the Order to Show Cause and to Stay Enforcement of Writ.
Take the photocopy of the order to the sheriff’s office. Your eviction will only stop if you take this copy to the sheriff.
your copies to the hearing on the Motion to Stay and Vacate
your Answer to the complaint for unlawful detainer
other proof of your defenses
Rent – Can mean rent payments, any recurring and monthly charges, including utilities, or any money owed under a deposit installment plan.
Default – when you do not appear in a court case where you are the respondent or defendant, or you do not respond or answer by the deadline after being served with a Summons and Complaint.
Writ of restitution - This court order tells the sheriff to remove you and your things from the place you are renting.
Enforce the writ - What the sheriff does to carry out the writ.
Judgment - A judgment is a court order. The judge rules for or against you. In an eviction case, the judgment also states how much money, if any, you owe the landlord.
Vacate – When a court vacates a judgment, it withdraws or cancels it.
Stay – When a court stays an order, it temporarily stops it from taking effect.
Ex Parte –Without the other party there. Can also mean the courtroom where you see a judge without notifying the other party, or after giving them short notice.
Get Legal Help
Visit Northwest Justice Project to find out how to get legal help.