[WSBARP] Unfiled eviction

Thu Jun 30 22:51:07 PDT 2016

I think the answer to your question is in the Summons itself:

“You may demand that the plaintiff file this lawsuit with the court. If you do so, the demand must be in writing and must be served upon the person signing the summons. Within fourteen days after you serve the demand, the plaintiff must file this lawsuit with the court, or the service on you of this summons and complaint will be void.”

This will force the plaintiff to file the summons and complaint if he is serious.

You didn’t mention a 3 day notice to pay rent or vacate. This is “a jurisdictional condition precedent” to commencing an unlawful detainer action. (Christensen v Ellsworth, Supreme Court, enbanc 2007) Landlords are often sloppy in the service of a 3 day notice which makes for an easy dismissal. RCW 59.12.040 states that any notice in an unlawful detainer action is to be served in the same manner and with the like effect as service of a summons.

If the summons does not contain the above quoted language, it is defective and the court is precluded from exercising its jurisdiction. (In the old days we said the “Court lacked jurisdiction”. In 2007 in Christensen v Ellsworth the Court said the court has jurisdiction by statute and constitution, but it is “precluded from exercising” it if a notice of process is defective in any way.) You might also check the summons and if it does not state the defendant can answer by facsimile, it is again defective with the same effect.

I would serve a NOA along with the demand to file and a copy of an affidavit of service. If the plaintiff takes a default for failure to appear, you can easily get that set aside along with Rule 11 sanctions.

Howard Herman

Herman Herman & Jolley, PS

509-220-5820

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Thursday, June 30, 2016 3:48 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Unfiled eviction

Sorry, I meant “his/her record” not file.  This can be extremely important, especially for low income tenants to preserve a clean rental history, because when background checks are done, the reporting company or landlord, rarely check to see who prevailed in the UD action (nor do they care).  

Marcus J. Fry

Lyon, Weigand & Gustafson, P.S. 

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Thursday, June 30, 2016 3:36 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Unfiled eviction

I would prepare and send via fax and original via mail NOA and an answer with a letter stating there are some issues with Plaintiff’s complaint, but if the attorney wishes to file, please file the NOA and answer on your behalf.  I would then indicate that to save money your client is amendable to an out of court settlement and request the attorney contact you to discuss.  

The benefit is that your client may be able to avoid having an UD action on his/her file.  If the attorney ignores the NOA and Answer and goes secretly via ex parte to obtain a default, you have proof of providing your response.  You could even do personal service of the NOA and Answer if the attorney is nearby.  The court will not look kindly on Plaintiff’s counsel if the attorney sought default while being in possession of the NOA and answer.

Marcus J. Fry

Lyon, Weigand & Gustafson, P.S. 

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Anthony Gibbs
Sent: Thursday, June 30, 2016 3:17 PM
To: WSBA Real Property Listserv
Subject: [WSBARP] Unfiled eviction

I have a client facing an eviction (which is probably bunk). He has received the summons and complaint, identifying a response deadline of July 5. However, the complaint was not served properly and has not been filed.

Can we just ignore it and force the Landlord to do things by the book? I have phoned opposing counsel and no response. 

I am contemplating responding to opposing counsel with a letter (but no formal answer to keep costs down) along the lines of "L's eviction of my client T is obviously retaliatory, my client is already looking for a new place to live, so save your client and mine the trouble since you're going to lose anyway."

Words of wisdom or warning most appreciated.

Thanks!

-- 

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