380

v  At the time and place fixed for the hearing of plaintiff's motion for a writ of restitution:

Ø  Defendant, or any person in possession or claiming possession of the property, may answer and assert any legal or equitable defense or set-off arising out of the tenancy.

§  orally or in writing,

§  If the answer is oral the substance thereof shall be endorsed on the complaint by the court.

Ø  The court shall examine the parties and witnesses orally to ascertain the merits of the complaint and answer,

§  if it shall appear that the plaintiff has the right to be restored to possession of the property, the court shall enter an order directing the issuance of a writ of restitution, returnable ten days after its date, restoring to the plaintiff possession of the property

§  If it shall appear to the court that there is no substantial issue of material fact of the right of the plaintiff to be granted other relief as prayed for in the complaint and provided for in this chapter, the court may enter an order and judgment granting so much of such relief as may be sustained by the proof, and the court may grant such other relief as may be prayed for in the plaintiff's complaint and provided for in this chapter, then the court shall enter an order denying any relief sought by the plaintiff for which the court has determined that the plaintiff has no right as a matter of law 

§  If it appears to the court that the plaintiff should not be restored to possession of the property the court shall

·        deny plaintiff's motion for a writ of restitution and

·        enter an order directing the parties to proceed to trial within thirty days on the complaint and answer.

§  If it appears to the court that there is a substantial issue of material fact as to whether or not the plaintiff is entitled to other relief as is prayed for in plaintiff's complaint and provided for in this chapter, the court shall grant or deny so much of plaintiff's other relief sought and so much of defendant's defenses or set-off claimed, as may be proper.

§  If it appears to the court that there is a genuine issue of a material fact pertaining to a legal or equitable defense or set-off raised in the defendant's answer, the court shall grant or deny so much of plaintiff's other relief sought and so much of defendant's defenses or set-off claimed, as may be proper.

 

 

380 PART 2

 

v  Before any writ shall issue prior to final judgment:  

Ø  Plaintiff shall execute to the defendant and file in the court a bond in such sum as the court may order, with sufficient surety to be approved by the clerk,

Ø   Conditioned that the plaintiff will prosecute his or her action without delay, and will pay all costs that may be adjudged to the defendant, and all damages which he or she may sustain by reason of the writ of restitution having been issued, should the same be wrongfully sued out.

Ø  The court shall also enter an order directing the parties to proceed to trial on the complaint and answer in the usual manner.

 

 

 

v  Within three (3) days after the service of the writ of restitution issued prior to final judgment:

Ø  Defendant, or person in possession of the property, may, in any action for the recovery of possession of the property for failure to pay rent, stay the execution of the writ pending final judgment.

Ø  Defendant must pay into court or to the plaintiff, as the court directs,

§  all rent found to be due,

§  In addition by paying, on a monthly basis pending final judgment, an amount equal to the monthly rent called for by the lease or rental agreement at the time the complaint was filed:

 

  

  

410 Section 1

v  If at trial the verdict of the jury or, if the case is tried without a jury, the finding of the court is in favor of the landlord and against the tenant,

Ø   Judgment shall be entered for the restitution of the premises;

Ø  judgment shall also declare the forfeiture of the lease, agreement, or tenancy, if the proceeding is for unlawful detainer is

§  after neglect or failure to perform any condition or covenant of a lease or agreement under which the property is held,

§   or after default in the payment of rent,

Ø  Court/ jury, shall also assess the damages arising out of the tenancy occasioned to the landlord by any forcible entry, or by any forcible or unlawful detainer, alleged in the complaint and proved at trial,

Ø  Court find the amount of any rent due, if the alleged unlawful detainer is based on default in the payment of rent,

Ø   Judgment shall be rendered against the tenant liable for the forcible entry, forcible detainer, or unlawful detainer for

§  the amount of damages thus assessed,

§  for the rent, if any, found due,

§   and late fees if such fees are due under the lease and do not exceed $75 in total.

Ø  The court may award statutory costs.

Ø  The court may also award reasonable attorneys' fees as provided in RCW 59.18.290.

Ø  When the tenant is liable for unlawful detainer after a default in the payment of rent, execution upon the judgment shall not occur until the expiration of five court days after the entry of the judgment.

 

 

 

 

 

 

 

 

 

 

 

 

 

410 Section 2:

 

v  Before entry of a judgment or until five court days have expired after entry of the judgment,

 the tenant subtenant, or any mortgagee of the term, or other party interested in the continuance of the tenancy, may pay into court or to the landlord in which event any judgment entered shall be satisfied and the tenant restored to his or her tenancy.

Ø  Tenant shall pay

§  the amount of the rent due,

§  any court costs incurred at the time of payment,

§  late fees if such fees are due under the lease and do not exceed $75 in total,

§   and attorneys' fees if awarded,

Ø  unless the tenant provides a pledge of financial assistance letter from a government or nonprofit entity, in which case the tenant has until the date of eviction

Ø   If the tenant seeks to restore his or her tenancy after entry of a judgment, the tenant may tender the amount stated within the judgment as long as that amount does not exceed the amount authorized under subsection (1) of this section.

 

v  tenant may seeks to restore his or her tenancy and pay the amount set forth in this subsection with funds acquired through an emergency rental assistance program provided by a governmental or nonprofit entity,

Ø  the tenant shall

§  provide a copy of the pledge of emergency rental assistance provided from the appropriate governmental or nonprofit entity and

§  have an opportunity to exercise such rights under this subsection, which may include a stay of judgment and provision by the landlord of documentation necessary for processing the assistance.

Ø  The landlord shall accept any pledge of emergency rental assistance funds provided to the tenant from a governmental or nonprofit entity before the expiration of any pay or vacate notice for nonpayment of rent for the full amount of the rent owing under the rental agreement.

Ø   The landlord shall accept any written pledge of emergency rental assistance funds provided to the tenant from a governmental or nonprofit entity after the expiration of the pay or vacate notice if the pledge will contribute to the total payment of both

§  the amount of rent due, including any current rent,

§  and other amounts if required under this subsection.

Ø  The landlord shall suspend any court action for 14 court days after providing necessary payment information to the nonprofit or governmental entity to allow for payment of the emergency rental assistance funds.

§  By accepting such pledge of emergency rental assistance, the landlord is not required to enter into any additional conditions not related to the provision of necessary payment information and documentation.

Ø   If a judgment has been satisfied, the landlord shall file a satisfaction of judgment with the court

Ø   A tenant seeking to exercise rights under this subsection shall pay an additional $50 for each time the tenant was reinstated after judgment pursuant to this subsection within the previous 12 months prior to payment.

Ø  If payment of the amount specified in this subsection is not made within five court days after the entry of the judgment, the judgment may be enforced for its full amount and for the possession of the premises.

 

 

410 Section 3: Staying of Writ

 

v   Following the entry of a judgment in favor of the landlord and against the tenant for the restitution of the premises and forfeiture of the tenancy due to nonpayment of rent

Ø   the court, at the time of the show cause hearing or trial, or upon subsequent motion of the tenant but before the execution of the writ of restitution, may stay the writ of restitution upon good cause and on such terms that the court deems fair and just for both parties.

Ø  In making this decision, the court shall consider evidence of the following factors

§  The tenant's willful or intentional default or intentional failure to pay rent

§  Whether nonpayment of the rent was caused by exigent circumstances that were beyond the tenant's control and that are not likely to recur;

§  The tenant's ability to timely pay the judgment;

§  The tenant's payment history

§   Whether the tenant is otherwise in substantial compliance with the rental agreement;

§  Hardship on the tenant if evicted; and

§  Conduct related to other notices served within the last six months.

Ø  The burden of proof for such relief under this subsection (3) shall be on the tenant.

Ø   If the tenant seeks relief pursuant to this subsection (3) at the time of the show cause hearing, the court shall hear the matter at the time of the show cause hearing or as expeditiously as possible so as to avoid unnecessary delay or hardship on the parties.

Ø  In any order issued pursuant to this subsection (3):

§  The court shall not stay the writ of restitution more than 90 days from the date of order, but may order repayment of the judgment balance within such time.

§   If the payment plan is to exceed 30 days, the total cumulative payments for each 30-day period following the order shall be no less than one month of the tenant's share of the rent, and the total amount of the judgment and all additional rent that is due shall be paid within 90 days.

§  Within any payment plan ordered by the court, the court shall require the tenant to pay to the landlord or to the court one month's rent within five court days of issuance of the order.

§  If the date of the order is on or before the 15th of the month, the tenant shall remain current with ongoing rental payments as they become due for the duration of the payment plan; if the date of the order is after the 15th of the month, the tenant shall have the option to apportion the following month's rental payment within the payment plan, but monthly rental payments thereafter shall be paid according to the rental agreement.

§  The sheriff may serve the writ of restitution upon the tenant before the expiration of the five court days of issuance of the order;

§   however, the sheriff shall not execute the writ of restitution until after expiration of the five court days in order for payment to be made of one month's rent as required by (c)(ii) of this subsection.

§  In the event payment is made as provided in (c)(ii) of this subsection for one month's rent, the court shall stay the writ of restitution ex parte without prior notice to the landlord upon the tenant filing and presenting a motion to stay with a declaration of proof of payment demonstrating full compliance with the required payment of one month's rent.

§  Any order staying the writ of restitution under this subsection (3)(c)(iii) shall require the tenant to serve a copy of the order on the landlord by personal delivery, first-class mail, facsimile, or email if agreed to by the parties.

Ø  If the tenant has satisfied (c)(ii) of this subsection by paying one month's rent within five court days, but defaults on a subsequent payment required by the court pursuant to this subsection (3)(c), the landlord may enforce the writ of restitution after serving a notice of default in accordance with RCW 59.12.040 informing the tenant that he or she has defaulted on rent due under the lease agreement or payment plan entered by the cour

·        Upon service of the notice of default, the tenant shall have three calendar days from the date of service to vacate the premises before the sheriff may execute the writ of restitution.

·        If the landlord serves the notice of default described under this subsection (3)(c)(iii), an additional day is not included in calculating the time before the sheriff may execute the writ of restitution.

·        The notice of default must be in substantially the following form: NOTICE OF DEFAULT FOR RENT AND/OR PAYMENT PLAN ORDERED BY COURTNAME(S) ADDRESS CITY, STATE, ZIPTHIS IS NOTICE THAT YOU ARE IN DEFAULT OF YOUR RENT AND/OR PAYMENT PLAN ORDERED BY THE COURT. YOUR LANDLORD HAS RECEIVED THE FOLLOWING PAYMENTS:DATE AMOUNT DATE AMOUNT DATE AMOUNT THE LANDLORD MAY SCHEDULE YOUR PHYSICAL EVICTION WITHIN THREE CALENDAR DAYS OF SERVICE OF THIS NOTICE. TO STOP A PHYSICAL EVICTION, YOU ARE REQUIRED TO PAY THE BALANCE OF YOUR RENT AND/OR PAYMENT PLAN IN THE AMOUNT OF $. . . . ..PAYMENT MAY BE MADE TO THE COURT OR TO THE LANDLORD. IF YOU FAIL TO PAY THE BALANCE WITHIN THREE CALENDAR DAYS, THE LANDLORD MAY PROCEED WITH A PHYSICAL EVICTION FOR POSSESSION OF THE UNIT THAT YOU ARE RENTING.DATE SIGNATURE LANDLORD/AGENT NAME ADDRESS PHONE

·        (iv) If a tenant seeks to satisfy a condition of this subsection (3)(c) by relying on an emergency rental assistance program provided by a government or nonprofit entity and provides an offer of proof, the court shall stay the writ of restitution as necessary to afford the tenant an equal opportunity to comply.

·         The court shall extend the writ of restitution as necessary to enforce the order issued pursuant to this subsection (3)(c) in the event of default.

§   A tenant who has been served with three or more notices to pay or vacate for failure to pay rent as set forth in RCW 59.12.040 within twelve months prior to the notice to pay or vacate upon which the proceeding is based may not seek relief under this subsection (3), unless the court determines any of the notices served were invalid or did not otherwise comply with the requirements of this chapter.

 

v  In any application seeking relief pursuant to this subsection (3) by either the tenant or landlord, the court shall issue a finding as to whether the tenant is low-income, limited resourced, or experiencing hardship to determine if the parties would be eligible for disbursement through the landlord mitigation program account established within RCW 43.31.605(1)(b).

Ø  In making this finding, the court may include an inquiry regarding the tenant's income relative to area median income, household composition, any extenuating circumstances, or other factors, and may rely on written declarations or oral testimony by the parties at the hearing.

Ø   After a finding that the tenant is low-income, limited resourced, or experiencing hardship, the court may issue an order:

§    Finding that the landlord is eligible to receive on behalf of the tenant and may apply for reimbursement from the landlord mitigation program; and

§  ( directing the clerk to remit, without further order of the court, any future payments made by the tenant in order to reimburse the department of commerce pursuant to RCW 43.31.605(1)(b)(iii).

§   In accordance with RCW 43.31.605(1)(b), such an order must be accompanied by a copy of the order staying the writ of restitution.

§  Nothing in this subsection (3)(e) shall be deemed to obligate the department of commerce to provide assistance in claim reimbursement through the landlord mitigation program if there are not sufficient funds.

§  If the department of commerce fails to disburse payment to the landlord for the judgment pursuant to this subsection (3)(e) within 30 days from submission of the application, the landlord may renew an application for a writ of restitution pursuant to RCW 59.18.370 and for other rent owed by the tenant since the time of entry of the prior judgment.

§   In such event, the tenant may exercise rights afforded under this section.

§  Upon payment by the department of commerce to the landlord for the remaining or total amount of the judgment, as applicable, the judgment is satisfied and the landlord shall file a satisfaction of judgment with the court.

§  Nothing in this subsection (3)(e) prohibits the landlord from otherwise applying for reimbursement for an unpaid judgment pursuant to RCW 43.31.605(1)(b) after the tenant defaults on a payment plan ordered pursuant to (c) of this subsection

§  If a tenant demonstrates an ability to pay in order to reinstate the tenancy by means of disbursement through the landlord mitigation program account established within RCW 43.31.605(1)(b):

¨      Any restrictions imposed under (d) of this subsection do not apply in determining if a tenant is eligible for reinstatement under this subsection (3); and

¨       Reimbursement on behalf of the tenant to the landlord under RCW 43.31.605(1)(b) may include up to three months of prospective rent to stabilize the tenancy as determined by the court.

 

 

 

 

 

 

 

 

 

410 Sec 4 , 5, and 6

 

v  If a tenant seeks to stay a writ of restitution issued pursuant to this chapter,

Ø  the court may issue an ex parte stay of the writ of restitution provided :

§  the tenant or tenant's attorney submits a declaration

·        indicating good faith efforts were made to notify the other party

¨      or, if no efforts were made, why notice could not be provided prior to the application for an ex parte stay,

·        and describing the immediate or irreparable harm that may result if an immediate stay is not granted.

Ø  The court shall require service of the order and motion to stay the writ of restitution by personal delivery, mail, facsimile, or other means most likely to afford all parties notice of the court date.

 

v  In all other cases the judgment may be enforced immediately.

Ø   If a writ of restitution shall have been executed prior to judgment no further writ or execution for the premises shall be required.

v  This section also applies if the writ of restitution is issued pursuant to a final judgment entered after a show cause hearing conducted in accordance with RCW 59.18.380.