IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WILLOW CROSSING LLLP by and through THRIVE COMMUNITIES No. 87402-1-I MANAGEMENT, LLC, DIVISION ONE Respondent, UNPUBLISHED OPINION v.
VICKI CHANG and ALL OTHER OCCUPANTS,
Appellant.
COBURN, J. — Superior Courts in Washington are required to inform tenants who
appear in court without an attorney in eviction proceedings that they have a right to an
attorney if they are indigent. That did not occur when Vicki Chang appeared in court
without counsel requesting that the court vacate a default judgment and stay a writ of
restitution. Relatedly, the court also denied her motion for sanctions against the property
management company without previously informing Chang as required by statute and
court rule of her right to counsel if indigent. Accordingly, we reverse the orders denying
Chang’s motion to vacate and motion for sanctions, and remand for further proceedings.
FACTS
In May 2024 Thrive Communities Management, LLC (Thrive) served Chang with
a 30-day notice to pay rent or vacate the premises because she owed seven months’
rent and utilities totaling $8,269.43. Chang did not comply with the notice. Thrive then 87402-1-I/2
issued an eviction summons and complaint to Chang in June 2024 indicating that she
must respond with a notice of appearance to Thrive’s attorney if she wished to defend
herself against the lawsuit. Chang did not respond.
Thrive obtained a default judgment. On September 6, 2024, the King County
sheriff posted a writ of restitution at Chang’s home. Five days later, Chang filed an
emergency motion to stay the writ for one month. Chang appeared without counsel at
the emergency motion hearing before a King County Superior Court commissioner. The
commissioner did not inform Chang that she had a right to counsel if she was indigent.
The next day, the court granted Chang’s motion to stay the writ and ordered a show
cause hearing.
King County Sheriff’s deputies executed the writ and evicted Chang prior to
Thrive receiving the court order granting the stay. About an hour and a half after
receiving the order, Thrive contacted Chang and informed her she could regain access
to her property. Chang filed a motion to sanction Thrive for contempt. The court, without
a hearing, denied Chang’s motion.
The same day Chang filed her motion to sanction, she also filed a motion to
vacate the default judgment. In this motion, she stated that she spoke with the Housing
Justice Project about her claim. At the motion hearing before a commissioner, Chang
again appeared without counsel. The court did not inform Chang that she had a right to
counsel if she was indigent. The court certified the motion to be heard before the
superior court judge who entered the default judgment.
A show cause hearing was held before the superior court judge. Chang appeared
without counsel. During the hearing she indicated that she “can’t find a lawyer yet.” The
2 87402-1-I/3
court did not inform Chang that she had a right to counsel if she was indigent. The court
denied Chang’s motion to vacate.
After the court denied her motion to vacate, Chang filed another motion with the
court’s ex parte department to stay the writ of restitution. Chang again appeared without
counsel at the hearing. Chang explained that she spoke with the Housing Justice
Project and was told that the eviction could not go forward while her appeal was
pending and that she was putting together her appeal. The court did not inform Chang
that she had a right to counsel if she was indigent. The court denied the motion to stay
as premature because Chang had not yet filed an appeal. On November 22, 2024, the
writ was executed, and Chang was evicted.
Chang appeals. 1
DISCUSSION
Appointment of Counsel
In addition to arguing the merits of her motions that were denied by the superior
court, Chang maintains that she had a statutory right to court-appointed counsel under
RCW 59.18.640.
In 2021, the Washington legislature enacted RCW 59.18.640(1), which states
that, subject to the available appropriated amounts, “the court must appoint an attorney
for an indigent tenant in an unlawful detainer proceeding under this chapter and
chapters 59.12 and 59.20 RCW.” A person is indigent for the purposes of this statute if
they receive one of several types of public assistance, including food stamps, Medicaid,
1 After filing an appeal to this court, Chang filed another motion with the trial court to stay the writ. The court denied the motion. 3 87402-1-I/4
or supplemental social security income, or have an annual income that is less than 200
percent of the federal poverty level. RCW 59.18.640(2)(a)-(b). The statute took effect in
the spring of 2021. Laws of 2021, ch. 115 § 8; MOSM, LLC v. Deegan, 30 Wn. App. 2d
284, 289, 544 P.3d 591 (2024). The “legislature appropriated additional funding for the
program through the 2023-2025 biennium.” MOSM, LLC, 30 Wn. App. 2d at 291 (citing
Laws of 2023, ch. 475, § 116(3)). In October 2023 our state Supreme Court adopted a
Superior Court Special Proceedings Rule, SPR 98.24W, to direct courts on how to
proceed under RCW 59.18.640. The rule contains two subsections: (1) if a tenant
appears in court without an attorney, the court shall inform the tenant that if they are
indigent, they have a right to counsel, and the court shall continue the hearing so that
counsel may be obtained, and (2) if a tenant is unrepresented and a judgment was
entered (such as default) the tenant may file a motion requesting appointment of an
attorney prior to execution of the writ. SPR 98.24W.
Thrive first asserts that Chang failed to preserve this issue for review under RAP
2.5 because the issue was not raised or argued in her motion to vacate default
judgment. In MOSM, LLC, this court faced the same issue and determined that the
tenant’s direct request for counsel during the hearing was enough to preserve the issue
for review. 30 Wn. App. 2d at 287-88. Notably, the eviction proceedings at issue in
MOSM occurred in 2022, 30 Wn. App. 2d at 285, before SPR 98.24W went into effect
on October 21, 2023. Under SPR 98.24W, the superior court “shall” “[a]dvise the tenant
that if they are indigent, they have a statutory right to be represented by an attorney at
public expense.” SPR 98.24W(1)(a). Moreover, Chang indicated to the court she could
not find a lawyer and had communicated with the Housing Justice Project. The court
4 87402-1-I/5
rule squarely places the burden on the court to advise the tenant. To suggest the tenant
is required to request an attorney before being informed the tenant has a right to an
attorney at public expense contradicts the plain language of SPR 98.24W and the
purpose of RCW 59.18.640(1).
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WILLOW CROSSING LLLP by and through THRIVE COMMUNITIES No. 87402-1-I MANAGEMENT, LLC, DIVISION ONE Respondent, UNPUBLISHED OPINION v.
VICKI CHANG and ALL OTHER OCCUPANTS,
Appellant.
COBURN, J. — Superior Courts in Washington are required to inform tenants who
appear in court without an attorney in eviction proceedings that they have a right to an
attorney if they are indigent. That did not occur when Vicki Chang appeared in court
without counsel requesting that the court vacate a default judgment and stay a writ of
restitution. Relatedly, the court also denied her motion for sanctions against the property
management company without previously informing Chang as required by statute and
court rule of her right to counsel if indigent. Accordingly, we reverse the orders denying
Chang’s motion to vacate and motion for sanctions, and remand for further proceedings.
FACTS
In May 2024 Thrive Communities Management, LLC (Thrive) served Chang with
a 30-day notice to pay rent or vacate the premises because she owed seven months’
rent and utilities totaling $8,269.43. Chang did not comply with the notice. Thrive then 87402-1-I/2
issued an eviction summons and complaint to Chang in June 2024 indicating that she
must respond with a notice of appearance to Thrive’s attorney if she wished to defend
herself against the lawsuit. Chang did not respond.
Thrive obtained a default judgment. On September 6, 2024, the King County
sheriff posted a writ of restitution at Chang’s home. Five days later, Chang filed an
emergency motion to stay the writ for one month. Chang appeared without counsel at
the emergency motion hearing before a King County Superior Court commissioner. The
commissioner did not inform Chang that she had a right to counsel if she was indigent.
The next day, the court granted Chang’s motion to stay the writ and ordered a show
cause hearing.
King County Sheriff’s deputies executed the writ and evicted Chang prior to
Thrive receiving the court order granting the stay. About an hour and a half after
receiving the order, Thrive contacted Chang and informed her she could regain access
to her property. Chang filed a motion to sanction Thrive for contempt. The court, without
a hearing, denied Chang’s motion.
The same day Chang filed her motion to sanction, she also filed a motion to
vacate the default judgment. In this motion, she stated that she spoke with the Housing
Justice Project about her claim. At the motion hearing before a commissioner, Chang
again appeared without counsel. The court did not inform Chang that she had a right to
counsel if she was indigent. The court certified the motion to be heard before the
superior court judge who entered the default judgment.
A show cause hearing was held before the superior court judge. Chang appeared
without counsel. During the hearing she indicated that she “can’t find a lawyer yet.” The
2 87402-1-I/3
court did not inform Chang that she had a right to counsel if she was indigent. The court
denied Chang’s motion to vacate.
After the court denied her motion to vacate, Chang filed another motion with the
court’s ex parte department to stay the writ of restitution. Chang again appeared without
counsel at the hearing. Chang explained that she spoke with the Housing Justice
Project and was told that the eviction could not go forward while her appeal was
pending and that she was putting together her appeal. The court did not inform Chang
that she had a right to counsel if she was indigent. The court denied the motion to stay
as premature because Chang had not yet filed an appeal. On November 22, 2024, the
writ was executed, and Chang was evicted.
Chang appeals. 1
DISCUSSION
Appointment of Counsel
In addition to arguing the merits of her motions that were denied by the superior
court, Chang maintains that she had a statutory right to court-appointed counsel under
RCW 59.18.640.
In 2021, the Washington legislature enacted RCW 59.18.640(1), which states
that, subject to the available appropriated amounts, “the court must appoint an attorney
for an indigent tenant in an unlawful detainer proceeding under this chapter and
chapters 59.12 and 59.20 RCW.” A person is indigent for the purposes of this statute if
they receive one of several types of public assistance, including food stamps, Medicaid,
1 After filing an appeal to this court, Chang filed another motion with the trial court to stay the writ. The court denied the motion. 3 87402-1-I/4
or supplemental social security income, or have an annual income that is less than 200
percent of the federal poverty level. RCW 59.18.640(2)(a)-(b). The statute took effect in
the spring of 2021. Laws of 2021, ch. 115 § 8; MOSM, LLC v. Deegan, 30 Wn. App. 2d
284, 289, 544 P.3d 591 (2024). The “legislature appropriated additional funding for the
program through the 2023-2025 biennium.” MOSM, LLC, 30 Wn. App. 2d at 291 (citing
Laws of 2023, ch. 475, § 116(3)). In October 2023 our state Supreme Court adopted a
Superior Court Special Proceedings Rule, SPR 98.24W, to direct courts on how to
proceed under RCW 59.18.640. The rule contains two subsections: (1) if a tenant
appears in court without an attorney, the court shall inform the tenant that if they are
indigent, they have a right to counsel, and the court shall continue the hearing so that
counsel may be obtained, and (2) if a tenant is unrepresented and a judgment was
entered (such as default) the tenant may file a motion requesting appointment of an
attorney prior to execution of the writ. SPR 98.24W.
Thrive first asserts that Chang failed to preserve this issue for review under RAP
2.5 because the issue was not raised or argued in her motion to vacate default
judgment. In MOSM, LLC, this court faced the same issue and determined that the
tenant’s direct request for counsel during the hearing was enough to preserve the issue
for review. 30 Wn. App. 2d at 287-88. Notably, the eviction proceedings at issue in
MOSM occurred in 2022, 30 Wn. App. 2d at 285, before SPR 98.24W went into effect
on October 21, 2023. Under SPR 98.24W, the superior court “shall” “[a]dvise the tenant
that if they are indigent, they have a statutory right to be represented by an attorney at
public expense.” SPR 98.24W(1)(a). Moreover, Chang indicated to the court she could
not find a lawyer and had communicated with the Housing Justice Project. The court
4 87402-1-I/5
rule squarely places the burden on the court to advise the tenant. To suggest the tenant
is required to request an attorney before being informed the tenant has a right to an
attorney at public expense contradicts the plain language of SPR 98.24W and the
purpose of RCW 59.18.640(1).
Thrive also alleges that Chang provided no evidence that she is indigent. 2 But
Chang was never asked to do so or instructed that she could be appointed an attorney
at public expense if she was indigent.
The superior court erred by conducting the show cause hearing when Chang
appeared without a lawyer and the court failed to advise her that if she was indigent she
had a statutory right to be represented by an attorney at public expense. Because the
right to counsel issue is dispositive, we do not reach the merits of Chang’s motions to
vacate the default judgment and to sanction Thrive. See State v. Osborne, 70 Wn. App.
640, 643, 855 P.2d 302 (1993).
Costs on Appeal
Chang requests costs on appeal. RAP 18.1(a) authorizes an award of costs on
appeal if “applicable law” permits, and RCW 59.18.290(2) allows the prevailing party in
a landlord-tenant suit to recover their “costs of suit.” It is not yet clear which party will
prevail on the merits. Leda v. Whisnand, 150 Wn. App. 69, 87, 207 P.3d 468 (2009).
Thus, any determination of the prevailing party is premature at this time and should be
determined on remand.
2 We do not consider Thrive’s speculation that Chang likely did not allege that she is indigent because she owns real property in Seattle, possessing assets/income over the threshold required to qualify for such services. Thrive concedes nothing in the record supports such a claim. 5 87402-1-I/6
CONCLUSION
We reverse the order denying Chang’s motion to vacate and order denying
Chang’s motion for sanctions, and remand for further proceedings consistent with this
opinion.
WE CONCUR: