Tenants who have been wrongfully evicted can ask the court to stop the eviction process, even if the tenant has already been locked out. A motion to vacate is the most common way to stop an eviction. For tenants not named in the eviction lawsuit paperwork and not served with a Prejudgment Claim of Right to Possession form, a second option is available. A motion to vacate is considerably more challenging than the other option, so an attorney should be consulted. Low-income tenants may find assistance at a local legal aid center at no cost.
Motion to Vacate a Default Judgment
Prepare a motion to vacate a default judgment. The motion may be granted for mistake or surprise or if the judgment is void. "Mistake" can be as to the law or as to some fact, but the mistake must be an important one. "Surprise" essentially means you were evicted unexpectedly and that a reasonable person in your situation would not have known about the eviction process. The eviction judgment is void if you were not properly served with a copy of the eviction lawsuit paperwork, if the lawsuit was filed in the wrong court or if you were not granted the right to be heard before the court prior to being evicted. The motion must include the reasons why the judgment should be set aside.
Prepare a supporting declaration that includes the facts as you know them. Also include a statement that you declare under penalty of perjury that your facts are true and correct as you understand them, then sign at the bottom of the declaration.
Fill out an Answer form. An Answer form responds to the landlord's eviction paperwork and gives you the opportunity to deny one or more of the landlord's allegations and to raise any defenses. Ask the court clerk for a blank Answer form. The judge will address the issues raised in the form if the judge sets aside the eviction order.
Prepare an order for the court to sign. If the court decides to set aside its decision to have you evicted, it must sign a written order. The order provides that the court's original order is set aside or vacated.
Take three copies of each document to the court clerk. The clerk will file and keep one copy and return the other two to you after stamping them. Direct a process server to give one copy to the landlord, then keep the remaining copy for your records. The server will return a Proof of Service document to you. File that document with the clerk and wait for notice of your court date to arrive in the mail at the address you provide to the clerk.
Claim of Right to Possession and Notice of Hearing
Ask the court clerk for a form titled Claim of Right to Possession and Notice of Hearing if you were never served with a document called a Prejudgment Claim of Right to Possession.
Fill out the Claim of Right to Possession and Notice of Hearing form and file it with the court clerk. Also bring the clerk a second copy, which the clerk will stamp and return to you.
Deliver the stamped copy of the form to the sheriff.
Attend the court hearing and be prepared to explain to the court that you were never served with a Prejudgment Claim of Right to Possession form.