Unemployment Appeals

In Washington State, employees may be entitled to compensation from the state unemployment insurance system when they become unemployed through no fault of their own. When a person (claimant) files a claim, the Employment Security Department will determine whether the claimant is entitled to unemployment benefits. Whether the Department grants or denies the claim, both the employee and employer have a right to appeal the decision through an administrative hearing.

It is not uncommon for the Employment Security Department to incorrectly make an initial determination. When the Department denies a claim it may require the claimant to pay back the benefits it has already paid out. This can be thousands of dollars in some cases. So, an attorney’s review of the decision and services in an appeal can be quite valuable.

Whether you are considering an appeal of a denial of benefits or your employer is appealing a favorable decision, contact Raymond Mutchler to schedule a low-cost consultation.

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Documenting agreements and conversations

We make agreements and have important conversations all the time. Where are separated parents meeting to exchange the children? Where should a tenant pay his rent? Which neighbor is paying for the broken fence?

A common legal problem occurs when a person thinks they have an agreement with another, but later the second person does not honor the agreement. Did the two parties ever really agree? Did they have an agreement, but the second party is now dishonoring it? Is the first person not remembering the agreement correctly? These are questions that will have to be answered if the first person wants to enforce the agreement or otherwise rely on the conversation.

With written contracts these questions are usually pretty easy to answer because there is a record of the agreement. However, formal contracts take time to write and to get both signatures. It’s often not practical to turn an agreement into a formal writing. Thankfully, there is an informal way to produce a record and I generally call it documenting an agreement or conversation.

One way to document is to simply take notes during or right after the conversation. After the conversation, file the notes away someplace you’ll remember. If a dispute arises, you can refer to your notes to help you remember the conversation. If the matter is in court, you can support your testimony with your notes.

A step better, turn your notes into a letter to the other person. It might read something like this if you’re changing where you’re exchanging the children with an ex:

I’m writing to follow up on our conversation this morning about where we are exchanging the children. Thank you for understanding that it has become unworkable for me to continue getting the children to your house by 5:00.  As we agreed, I will have the children ready for you to pick up at my house by 5:00 p.m. when it is your parenting time starting this Friday.  Thank you again for your flexibility in this matter.

When the other person receives this letter they know 1) that you think you have an agreement with them and 2) the content of the agreement.  It then becomes their responsibility to correct you if you’re wrong about the agreement. If no correction comes, then the letter becomes written evidence of the agreement.

Documenting your agreements can save a lot of trouble, avoid misunderstandings, and protect your interests in litigation.

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Can I modify my spousal maintenance?

As part of a divorce, a Washington court may order one spouse to pay the other a certain amount of money over a certain period of time as maintenance.  This spousal maintenance is intended to help equalize the economic positions of the parties after the divorce.  In setting maintenance, the court considers several factors such as the financial resources of the parties and their standard of living during the marriage, but it essentially comes down to the receiving party’s need and obligor’s ability to pay.

It is understandable that, for a variety of reasons, either the paying party or the receiving party may want the spousal maintenance to be changed sometime after the divorce is complete.  However, a party who wants to modify maintenance has a significant hurdle to cross.

Generally speaking, unless the parties had a separation agreement that provides differently, the party who wants to change or terminate maintenance must show that there has been a substantial change in circumstances since the divorce decree was entered.  “Change of circumstances” means that the financial need of the recipient or the ability for the obligor to pay has changed.  “Substantial” means the change must be significant or weighty.  This change must also be something that was not contemplated when the decree was entered and must be something of a continuing nature and not temporary.

The remarriage of the receiving spouse will normally terminate maintenance without having to prove a substantial change in circumstances.  However, living with a romantic partner will only be grounds for terminating or modifying maintenance if it substantially changes the financial circumstances of the recipient.

Above all else, it is critical to understand that meeting the substantial change of circumstances test only means that the court may modify the maintenance but does not require the court to modify.  A court could find that there has been several substantial changes in circumstance but that in total effect they cancel each other out and do not support a need for modification.  A court might also decline to modify maintenance because in its opinion the original order was too low or high anyway.

Due to the above difficulties in modifying maintenance it is important to receive counsel regarding spousal maintenance before finalizing a divorce.  The issue of maintenance modification may be avoided by careful drafting of an agreed decree.  It can be agreed to make maintenance non-modifiable.  It could also be agreed that maintenance changes under certain circumstances like the performance of investments or businesses.  If the paying spouse has an income that fluctuates it may be in both parties’ interest to set maintenance at a base rate plus a percentage of actual income.  In this way the paying party has relief during financial downturns while the receiving party benefits from upturns and can rely on receiving a minimum payment.

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Unlawful Detainer (eviction) – Part 3 – Resolution or Show Cause Hearing and Beyond

As covered in the previous post, if the summons and complaint are answered then the landlord cannot prevail without a show cause hearing (for residential tenancies) or trial.  The show cause hearing is set by the motion of the landlord.  The court then will issue an order for the tenant to appear and show cause why the court should not grant the landlord a writ of restitution.  This order must be served on the tenant at least seven days before the hearing.

The purpose of the show cause hearing is very limited.  The court is only looking at two main issues.  First, who has right to possession of the property?  Second, what money judgment should be entered, if any?  The landlord, or his attorney, gets to present his case at the hearing first.  Then the tenant has an opportunity to argue why the landlord is not entitled to relief.  Finally, the landlord has an opportunity to rebut the tenant’s argument.

Generally speaking, if the landlord has a correct reason for evicting the tenant (e.g. non-payment of rent, not complying with a lease provision, etc.) and he has done the process correctly (e.g. served the correct notice, properly served the summons and complaint, etc.) then he will most likely get the writ of restitution and a money judgment for past due rent, attorney’s fees, and court costs.  If this happens, then the court action is over and the landlord gets the writ issued by the court clerk, delivered to the sheriff, and prepares for the sheriff to execute the writ.  The sheriff will post the writ on the property and schedule the eviction with the landlord for a certain day and time.  This date cannot be earlier than the fourth business day after the writ is posted.

However, there are two possible results if the landlord does not prevail at the show cause hearing.  First, the court might find the action defective and outright dismiss it. If this happens, then the landlord must start the case over again with at least a new summons and complaint. The landlord may also need to serve a new notice.

Second, if the court neither rules for the landlord or for the tenant at the show cause hearing, the court will set the case for a trial.  In which case, the trial will be set in thirty days.  Sometimes, instead of sending all issues to trial, the court will decide that the landlord is entitled to recover the property at the show cause hearing, but set the case for trial to determine how much rent is owing.

It is important for a tenant who is faced with an unlawful detainer show cause hearing to obtain legal assistance if at all possible.  Very few tenants have the knowledge or skills to evaluate the strength or weakness of their case.  An attorney can evaluate the case and help the tenant negotiate for a better outcome than they otherwise might get from a hearing.  Legal resources for tenants who cannot afford an attorney include the CLEAR hotline and the Housing Justice Project.  In Snohomish County the Housing Justice Project is at the county courthouse on Tuesday and Wednesday mornings from 10:15 to noon.

For a landlord, a willingness to negotiate just before the show cause hearing is also wise.  It is often better for a landlord to give a tenant a few more days to move out in exchange for the tenant not contesting at the hearing even if the landlord is sure of his success in the hearing.  First, it’s rare for the sheriff to actually carry out the eviction at the earliest moment possible, so the landlord is often only giving up the possibility of an earlier eviction.  Second, it’s more expensive and time consuming for the landlord to have to carry out the eviction than if the tenant moves out themselves.  Furthermore, if the tenant is facing the possibility that all his stuff could be on the street in a matter of a few days he might use the property storage request form which then mandates the landlord to bear the upfront cost of storing the tenant’s property.

This is the final post of my short series on unlawful detainer.  This has been an overview only.  If you are involved in an unlawful detainer action and need representation or have questions then I encourage you to contact me.

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Unlawful Detainer (eviction) – Part 2 – Summons, Complaint, and Answer

Once a landlord knows that his tenant is in unlawful detainer he may start the lawsuit.  The lawsuit begins by serving at least two documents on the tenant, the summons and the complaint.

The summons is a formal document that provides notice to the tenant that his landlord is bringing a lawsuit to evict him, provides a deadline for him to respond by, and explains how the tenant may serve his answer.  The form of the summons for a residential tenant is defined by statute.  A landlord should be careful that he uses a summons that complies with the current statute because otherwise his case could be dismissed.

The complaint is a formal document wherein the landlord alleges the facts that make the tenant in unlawful detainer and asks the court for relief.  In simpler terms, the complaint tells the court what relief the landlord is asking for and why, as a matter of law, the court should grant the relief.

Both the summons and complaint must be served on the tenant in a way that is more strict than the service of the notice.  The summons and complaint must be served either directly on the tenant personally or by leaving copies at his or her usual abode with a co-resident of suitable age and discretion.

Once the tenant is served the ball is in his court.  If the tenant does not answer in time, then the landlord may get a judgment and writ by default.  Default means that the court gives the plaintiff everything he is asking for because nobody has appeared to oppose.  If the tenant does answer in time then the matter must go to a show cause hearing (if it’s a residential lease) and possibly to trial.

The importance of the beginning of the lawsuit to the tenant is hopefully obvious at this point.  If a tenant receives a summons and complaint she must answer in time by writing or risk being evicted by default.  Answering the complaint opens the door for either prevailing on the case or negotiating a resolution.  If the tenant defaults then the Writ of Restitution will be issued against her and the sheriff may come and evict her at the earliest opportunity allowed by law.

Furthermore, if the summons and complaint are unfiled then the tenant has a golden opportunity to avoid having the case made public.  Many tenants are rightfully concerned about the impact that an eviction will have on their ability to secure good rentals in the future.  A tenant whose main concern is their rental history should act quickly and intelligently to an unfiled summons and complaint to avoid their landlord filing the action.

For the landlord it is essential that the correct summons is used, the complaint is drafted correctly, and that the documents are properly served.  If any one of these elements are wrong then the landlord’s case may be in severe jeopardy.  Self represented landlords routinely make critical mistakes by this point in the action.  These mistakes delay how soon they are able to recover their property and may subject them to attorney’s fees.

A point of tactics

Now, there are several tactical decisions a landlord may make when starting an unlawful detainer action, but we’ll only cover a very basic one here.  The summons and complaint may be served either unfiled or filed with a show cause hearing set.  Each option has its advantages and disadvantages.

The advantage of an unfiled summons and complaint is primarily a potential cost savings.  There are no court costs when serving an unfiled summons and complaint.  If the tenant does not answer in time and a default judgment is obtained then the court filing fee is less than if there is a show cause hearing.  However, if the tenant does answer and a show causing hearing is set, then there is no cost savings because the filing fee is the same as if the show cause hearing was set when the case was filed.  Another slight advantage is that if the tenant understands that the action is unfiled (and therefore not a matter of public record yet) they may be willing to move out quickly to avoid the case being filed, but this generally requires a saavy tenant.

The advantage of filing the action and having a show cause hearing set from the beginning is potentially completing the matter more quickly.  If unfiled papers are served and answered then a show cause hearing must be set to move the case forward.  There is a waiting period between when the show cause hearing is set (and the tenant is served with the order to show cause) and when the hearing can take place.  This show cause waiting period can be the same time as the answer period if the order to show cause is served at the same time as the summons and complaint.  By this method, the overall length of the action can be shortened by a couple weeks.

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Unlawful Detainer (eviction) – Part 1 – Notice

Before a landlord files an action for unlawful detainer (eviction), the tenant must be in a state of unlawful detainer first.  Otherwise the landlord risks not only having his action dismissed by the court but also having to pay the tenant’s attorney’s fees.

In most cases, a written notice must be served on the tenant to place that tenant in unlawful detainer.  The most common is the three day notice to pay rent or vacate.  Other common notices are the notice to terminate a month to month tenancy and the ten day notice to comply with a lease provision or vacate.

Notices are critical for the tenant because they provide a time period for the tenant to avoid unlawful detainer.  Unfortunately this time period can be quite short.  The worst thing a tenant can do when receiving any written notice from their landlord is to ignore it because filed unlawful detainer actions are public records and can be found by those conducting rental history checks.  Even if the notice is correct and the tenant is unable to comply with the notice, it is better for the tenant to communicate with the landlord and attempt to reach an agreement that avoids the filing of an unlawful detainer action.

For the landlord, the notice requirements are absolutely critical because the court will not even address the merits of the case without proper notice to the tenant.  The notice needs to be correct in form, content and in service.  A landlord also needs to provide to the court proof of service of the notice through a written declaration.  A landlord’s failure to correctly give his tenant notice can increase his costs in both time, his attorney’s fees and potentially paying the tenant’s attorney’s fees.

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Unlawful Detainer (eviction) – Introduction

The legal action for a landlord to recover their property from a tenant is called unlawful detainer.  In layman’s terms it is an eviction.  This is the introductory post for a three part series outlining the process.

Unlawful detainer is a special expedited legal process.  Unlike most lawsuits, a contested unlawful detainer matter can be finished  in a matter of weeks without trial rather than months.  Most of these actions are completed in four to six weeks.

The goal of this action is what is called the writ of restitution and a judgment for money damages.  The writ is an order to the county sheriff to remove the tenants from the property and restore possession to the landlord.  The money judgment is for past due rent, late fees, attorney’s fees, and court costs.

There are three distinct stages of an unlawful detainer action in pursuit of these goals.  Each post of this series will cover one of these stages.  The first is the notice.  Second, is starting the law suit and the tenant’s answer.  Third is the show cause hearing and obtaining the writ of restitution.

It is important for both landlords and tenants to understand the unlawful detainer process so they may best protect their own interests.  Each stage provides unique opportunities to advance or harm their interests.  Since I’ve represented both landlords and tenants in the past I’ll  be identifying some of these opportunities in each stage for both sides.

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Declaration Writing Tips

If you have a matter in court then sooner or later you will probably need to write a declaration.  This is a general guide on how to write an effective declaration.  “You,” in this guide, is used in the rhetorical sense.  More specific advice should be obtained from your attorney because every case and declaration has particular needs.

First, the writer of a declaration should understand what the document is about and how it will be used.  A declaration is a document used to support a motion, or oppose one, by asserting facts.  It is a substitute for live testimony and is signed under penalty of perjury much like live testimony is made under oath.  When a motion is presented to the court, a judge or court commissioner will base her decision on the facts that she finds through the declarations and supporting documents submitted to her.

A good declaration will be easy to read, on point, and credible.  This guide addresses ways to make your declaration shine on all three points.

Easy to read

Judges, and especially commissioners, do not have a lot of time to spend reading long and complicated declarations.  You want to make it as easy as possible for the decision maker to understand who you are, what facts you are testifying to, and how you know those facts.  One of the top ways to make your declaration easy to read is to organize your thoughts.  Your attorney and/or paralegal will help, but their time spent revising it will be more effective if your first draft to them is well organized and their time is your money.

A good way to start writing an organized declaration is to start with a list of topics that your declaration is to cover.  Your attorney should be able to help you with this list.  For a declaration supporting a motion for temporary orders in a divorce such a list might look something like this:

  • Introduction of the marriage and parties
  • Separation
  • The parenting arrangements for the child since separation
  • Why your proposed parenting plan is best for the children
  • How the bills have been paid since separation
  • Why you’re asking the court to have your spouse pay certain bills
  • Why you need spousal maintenance and how your spouse is able to pay

You could even go into subtopics to get a more detailed outline before writing.  For example, you might want to list the reasons why your proposed parenting plan is in the best interests of your children.  If you are writing a declaration in response to the opposing party’s declaration you might consider organizing your declaration the same way.  Once you have your topics outlined it’s easier to write and have good paragraphs fall into place.

In general, use short paragraphs that start with clear topic sentences.  Start each paragraph with a statement of fact and then support it with more specific facts in the rest of the paragraph. Avoid cramming paragraphs with so many details that it is hard to read and digest.  It’s generally better to write many simple paragraphs that are easy to understand than to write a few long paragraphs that are harder to understand.  Your declaration should more closely resemble a newspaper article than an old Russian novel.

Also on the subject of readability, write naturally and don’t try to write in legalese.  You’re not likely to score any points with the court by giving your impression of bad legal writing.  You’re more likely to just make your declaration harder to read.

Don’t forget to use other good writing practices like good grammar, spelling, and punctuation.  Type or write in your best handwriting.

On Point

Writing on point means avoiding  going into information that does not matter and the court is not likely to care about.  Staying on point keeps the judge interested in your declaration.  Going off point makes the judge want to rush through it to find something more helpful to him.

An example of writing on point is to tell the court about your spouse’s drug abuse problem because it affects the parenting plan.  Not on point is writing about how your spouse left you for your best friend because Washington is a no-fault divorce state.

The key to staying on point for a represented party is to get good guidance from your attorney on what facts are important for the court to consider.  When I’m advising a client and talking about the facts of their situation I will frequently flag important facts for the client by saying something like, “The court needs to hear that.” “Write that in your declaration.”

Staying on point also means sticking to the facts.  Declarations are primarily about asserting facts and not arguments.  Motion documents and the hearing are the primary places for arguments.  Declarations support these arguments with facts.

Credibility

Even if your declaration is easy to read and on point, it will not do you much good if it lacks credibility.  There are several things you can do to increase your credibility.

First, be as specific about your facts as you can.  If you’re describing an event, describe when it happened with as much accuracy as you can.  If you’re writing about getting a lot of harassing phone calls, tell the court how many phone calls you received over how many days.

Avoid using overly broad and assertive statements like “never” or “always.”  If you’re tempted to use one of these words, pause and ask yourself if it is literally true that you’ve never raised your voice or that he is always drunk.  Instead consider words like often, frequently, seldom, and rarely.  But again, remember to support general statements with specific facts so the court knows how often or how rarely such events have happened in the past.

Make sure it is clear to the reader how you know the facts you are stating.  For many things, especially facts about oneself, it may be plain how you know this information.  For example, there is no need to explain how you know that you pick up the children from school each day.  Other times, it may not be clear and need explanation.  For example, the court will want to know how you know that your spouse drinks five times a day when you haven’t lived together for almost a year.

Do you have any declaration writing tips or experiences that you would like to share?   Please comment.

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  • Disclaimer

    The information provided on this website is for general purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this site, posting comments, or sending the attorney emails. These articles represent their author's opinions and ideas at the time of writing. Mr. Mutchler reserves his right to revise his opinions at anytime without notice. Unless otherwise stated, the law discussed is for Washington only.