Vacating a Default in Eviction Cases

eviction-300x220Our firm frequently handles eviction actions on behalf of both landlords and tenants.  In order to commence an eviction action, the tenant is served with a Notice of Petition and Petition.  These documents state the date, time and location of the Court in which to appear. One common occurrence is when a tenant fails to appear in Court for a scheduled hearing.  This post will address how such a situation is resolved.

Sometimes the tenant fails to appear at the hearing.  Whether it is because they did not actually receive the notice, cannot get to Court for health reasons, a failure to understand the nature of the proceedings, or otherwise, the Court will enter a default against the tenant.  What this means is that by failing to appear and present a defense, the landlord is entitled to receive the relief requested in their Petition.  Depending on the type of eviction proceeding, this relief will usually consist of a money judgment (in a non-payment proceeding) for the amount of rent claimed to be owed by the tenant, as well as a warrant of eviction.  The warrant is a legal document that allows the property owner to enlist a City Marshal or Sheriff (depending on where the property is located) to physically evict the tenant and remove his belongings from the premises.

Depending on the particular local court in which the action is brought, the Judge may sign these documents immediately or they may be submitted to the Court Clerk for the Judge’s signature at a future date.  Once the warrant is signed, the landlord will send it to the City Marshal or Sheriff to proceed with the eviction.   The tenant will then be served with a 72 hour notice, which states that the eviction will proceed in three days.

What are the tenant’s options at this point?  One legal option is to have a qualified attorney bring an Order to Show Cause to attempt to vacate their default, and to delay enforcement of the warrant and judgment.  In order to have the default vacated, the tenant must first give a valid reason why they did not appear.  This can be a failure to receive the notice, being physically unable to appear due to health issues, or otherwise.  The second requirement is to show a valid defense to the underlying eviction action.  For example, if the eviction case was brought for non-payment of rent, then a valid defense would be to show that the rent in question was paid, and provide evidence of same in the form of cancelled checks or bank records.

Once the Court signs the Order to Show Cause, it must be served upon the landlord (or their attorneys), as well as the City Marshal or Sheriff who served the 72 hour notice.  The Order to Show Cause should contain language which stays the eviction until the Order to Show Cause is heard and decided by the Court.  The Court will assign a date and time for all parties to appear to argue the Order to Show Cause.  This will give the parties (and their attorneys) time to discuss the matter and hopefully negotiate a resolution acceptable to all parties.

If the parties cannot resolve the case out of Court, they will appear before the Court on the return date.  The Court will evaluate the allegations in the Order to Show Cause, and, if the necessary legal requirements are met, may vacate the warrant and judgment, and allow the tenant to file a response to the original proceeding.  Note that if the landlord still has valid grounds to evict, the Court may still find in the landlord’s favor after a hearing.  The purpose of the Order to Show Cause is to give the defaulting tenant an opportunity to present her defenses to the Court.

Whether you are a tenant who has defaulted and is facing imminent eviction, or a landlord seeking to evict a tenant, our firm welcomes all inquiries in this important area.