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WashingtonLawHelp.orgWashington LawHelp

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 LSC Funded

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

Contents

Please Note:

Part 1-4

Part 1. Questions and Answers +

A. Should I use this?

Only if both of these are true:

  • your landlord filed an eviction case (unlawful detainer) against you in court

  • you did not go to the hearing in your case or file any answer to the court

If both of these are true, the court may say you defaulted. This means you automatically lost the case because you did not show up or give the court any documents in your defense. Usually, after a default in an eviction, the judge will sign a “Writ of Restitution” (type of court order) allowing a tenant’s eviction. The Sheriff then delivers the writ to your rental. You usually have a very short time after this to ask the court to stay (stop) the writ and fight against the eviction.

*Do not use this packet if you went to the hearing and the judge ruled against you (you lost).  You must follow a different procedure.  Talk to a lawyer right away about filing for reconsideration or revision.

 

B. What are some examples of good reasons for defaulting?

If you want to fight a default and stop an eviction, you must file a Motion for Stay of the Writ of Restitution. This is your request to stop the eviction from moving forward. As part of this motion, you must ask for an emergency hearing for the court to hear your argument about why the eviction should not go forward. And you must have a good reason to tell the judge why you did not show up to your original hearing (or court date) on the eviction. Here is a list of some possible reasons:

  • You did not get the summons or complaint for the case.

  • You sent a Notice of Appearance or Answer to the landlord or their attorney that they did not provide to the court.

  • You tried to answer, but a serious situation outside your control kept you from doing so, such as disability, hospitalization, or other misfortune.

*This is not a complete list. Talk to a lawyer right away if you find out you were defaulted in an eviction case.

 

C. What happens if the judge grants my Motion to Stay and Vacate?

Part of the Motion is a Motion to Vacate (cancel) the Default Judgment. You make these two requests in one document (Motion to Stay and Vacate). If, after your emergency hearing, the judge stays your eviction, you can:

  • Stay in the property a little longer.

  • Wait for another hearing to explain to the judge why you had a good reason to miss your first hearing and why they should vacate the default judgment.  

*Try to reach an agreement with the landlord on a move out date, if that is what you really want. 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.

 

D. Why should I file a Motion to Stay and Vacate?

It is a chance to reverse the judgment against you and tell the court 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 (automatically taking from) your wages or bank accounts.

  • Seizing your personal property and selling it.

 

E. How does this Motion work?

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.

 

F. When should I file this motion?

You can do so any time before the sheriff carries out (enforces) the writ and evicts you. The sooner, the better. It may take time to get everything filed, heard, and provided to the sheriff.

You can also vacate a default even if you have already been evicted. But it is much harder to get back into the rental once the Sheriff has shown up to evict you after posting a copy of the writ. Use Motion to Vacate Judgment/Order [CR 60] and try to get legal help right away

 

G. Where do I file the motion?

With the clerk of the same Superior Court who signed the Judgment and Writ. You can call the clerk and ask for the best way to file your motion. Sometimes you can file at the court or by sending the clerk an email.

 

H. Can I get a free lawyer to help me with my case?

As of May 2021, a new state law says tenants who have low incomes, and make less than 200% of the Federal Poverty Level, should have the right to a lawyer at an eviction hearing. If you have a default judgment, call your local legal aid organization to see if you can get legal help. If you go to the hearing by yourself on your Motion to Stay and Vacate, at the hearing ask the judge to help appoint a lawyer for your case.

 

Part 2. Summary of Steps +

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.

 

A. Proposed Order to Show Cause (Vacate Judgment & Stay Enforcement of Writ)

This order

  • 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.

Presented by: Sign and then print your name where it says. The court will fill out the rest if it signs our order.

 

B. Motion and Declaration to Vacate Judgment and to Stay Enforcement of Judgment and Writ of Restitution

This 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."

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 

  • any letters 

  • any photos 

  • other proof of your defenses

  • any witnesses

 

Part 3. Words and Expressions you should know +

Default – this means you automatically lose your case. This happens 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.

Enforce the writ - What the sheriff does to carry out the writ.  This means coming to the rental to change the locks and force you out of the property.

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.

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. Sometimes this includes having to pay the landlord’s attorney fees.

Rent – Can mean rent payments, any recurring and monthly charges, including utilities, or any money owed under a deposit installment plan.

Stay – When a court stays an order, it temporarily stops it from taking effect.

Vacate – When a court vacates a judgment, it withdraws or cancels the order.

Writ of restitution – an eviction court order. This court order tells the sheriff to remove you and your things from the place you are renting.

 

Part 4. What if I need legal help? +

Visit Northwest Justice Project to find out how to get legal help. 

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Last Review and Update: Sep 07, 2021