Good morning tucsonchilango and thank you for your question.
I would like to begin by saying I am NOT a lawyer, however I do work
as a paralegal and have gained a wealth of legal knowledge in the
years I have worked in the legal field. I am assuming by reading your
questions & concerns that you represented yourself in court initially
(I apologies if I am mistaken). I would recommend that if after
reading what I have posted below you still have questions, you should
contact a lawyer who cold help you further.
You can find a lawyer in Arizona through the Arizona State Bar Directory at:
( http://www.azbar.org/LegalResources/findlawyer.cfm )
or by mailing/calling:
STATE BAR OF ARIZONA
4201 N. 24th Street, Suite 200
Phoenix, Arizona 85016-6288
Phone: 602-252-4804
1-866-48-AZBAR (toll-free outside Maricopa County)
Fax: 602-271-4930
Southern Regional Office/Tucson
320 South Convent
Tucson, Arizona 85701-2215
Phone: 520-623-9944
Fax: 520-623-9974
I am going to post my answer as if you have already obtained a
judgment in your case so that you know what to do once it is actually
obtained if, in fact, it has not already been.
To begin with, in law, there are 5 methods to make a judgment debtor
pay the judgment ordered by a court.
1. Judgment to obtain real property lien
2. A Writ of Execution may be obtained to order the Sheriff to "levy"
(seize) the debtor?s non-exempt assets.
3. A Writ of Garnishment may be issued to "garnish" (seize) the debtor?s
wages
4. A Writ of Garnishment may be issued to seize a debtor?s bank accounts.
5. A "debtor?s exam? may be held to examine the debtor under oath
concerning the debtor?s assets.
Comparing the example you mentioned (Notice of Lien) to the methods
described above, it is my opinion that a Writ of Execution would be
the route for you or your lawyer to take.
According to Arizona statute, ONCE YOU OBTAINED A JUDGMENT, you can
file a Writ of Execution to collect on this judgment. A Writ of
Execution directs the Sheriff or Constable to seize and sell ANY
non-exempt personal property of the judgment debtor to satisfy the
judgment. Most Arizona Sheriffs Departments have certain requirements
that must be fulfilled before they will attempt to execute on a
judgment so be sure to check with the Sheriff Department in the County
to which the papers will be served to see that you have met all
requirements.
If your judgment is the result of an automobile accident for which you
have an accident report and remains unpaid 60 days after the judgment
has been entered, the clerk will, upon request, report the non-payment
to the Arizona Department of Transportation, Motor Vehicle Division,
pursuant to ARS 28-4071. MVD will suspend the judgment debtors
driver's license, registration and non-resident operating privilege.
STATUTES PERTAINING COLLECTION OF A JUDGMENT:
Revised Statute §12-1551
A. The party in whose favor a judgment is given, at any time within
five years after entry of the judgment and within five years after any
renewal of the judgment either by affidavit or by an action brought on
it, may have a writ of execution or other process issued for its
enforcement.
B. An execution or other process shall not be issued upon a judgment
after the expiration of five years from the date of its entry unless
the judgment is renewed by affidavit or process pursuant to section
12-1612 or an action is brought on it within five years from the date
of the entry of the judgment or of its renewal.
C. The court shall not issue a writ of execution after the death of
the judgment debtor unless it is for the recovery of real or personal
property or enforcement of a lien.
D. This section does not apply to:
1. Criminal restitution orders entered pursuant to section 13-805.
2. Written judgments and orders for child support and spousal
maintenance and to associated costs and attorney fees.
3. Judgments for supervision fees or expenses associated with the care
of a juvenile pursuant to section 8-241 or 8-243 and to associated
costs and attorney fees.
Source: Arizona State Legislature
( http://www.azleg.state.az.us/ars/12/01551.htm )
Revised Statute §12-1552:
A. Executions are either general or special.
1. A general execution is one which commands the officer to whom it is
addressed to make the amount of the judgment out of property of the
judgment debtor without specifying the particular property.
2. A special execution is one which commands the officer to whom it is
addressed to sell certain specific property, or to deliver certain
specific real or personal property to the party adjudged to be
entitled thereto.
B. All executions shall be issued in the name of the state, signed by
the clerk and sealed with the seal of the court, directed to the
sheriff or other officer of the county where service is to be made,
and shall refer to the judgment, the court where entered and the date
of entry.
Source: Arizona State Legislature
( http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/12/01552.htm&Title=12&DocType=ARS
)
Revised Statute § 12-1558:
A. All property, real and personal, not exempt by law, and all
property and rights of property seized and held under attachment or
garnishment in an action, are liable to execution.
B. Shares and interests in a corporation, and debts and credits,
choses in action, and all other property, or any interest therein,
legal or equitable, not capable of manual delivery, may be levied upon
and sold under execution.
Source: Arizona State Legislature
( http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/12/01558.htm&Title=12&DocType=ARS
)
* * * * * * * * * *
The following are items Arizona Statute considers EXEMPT from
collection processes, such as a Write of Execution, Garnishment
Proceedings & Bankruptcy actions:
Prepaid rent & security deposit
Exempt Amount: lesser of $1,000 or one and one-half month's rent
(ARS § 33-1126.D)
Certain household goods.
Exempt Amount: $4,000.00)
(ARS § 33-1123)
Food, fuel & provisions: All food, fuel and provisions actually
provided for the debtor?s individual or family use for six months.
Exempt Amount: 100%
(ARS § 33-1124)
Wearing apparel
Exempt Amount: $500.00
(ARS § 33-1125.1)
Music instruments: All musical instruments provided for the debtor's
individual or family use.
Exempt Amount: $250.00
(ARS § 33-1125.2)
Pets & animals: Domestic pets, horses, milk cows and poultry.
Exempt Amount: $500.00
(ARS § 33-1125.3)
Rings: All engagement and wedding rings.
Exempt Amount: $1,000.00
(ARS § 33-1125.4)
Watch (one watch)
Exempt Amount: $100.00.
(ARS § 33-1125.6)
Other personal property: One typewriter, one bicycle, one sewing
machine, a family bible, a lot in any burial ground, one shotgun or
one rifle or one pistol.
Exempt Amount: $500.00
(ARS § 33-1125.7)
Motor vehicle (one motor vehicle)
Exempt Amount: $5,000; ($10,000 if debtor is physically disabled)
ARS § 33-1125.8
Prostheses: Professionally prescribed prostheses for the debtor or a
dependent of the debtor, including a wheelchair.
Exempt Amount: 100%
ARS § 33-1125.9
Life insurance proceeds: Money received by or payable to a surviving
spouse or child upon the life of a deceased spouse, parent or legal
guardian. Exclusion applies. EXCLUSIONS APPLY (See Note)
Exempt Amount: $20,000
ARS § 33-1126.A.1
NOTE: Exemptions of ARS § 33-1126.A do not apply to annuities, or to
cash surrender values increased by premium payments within two years
in excess of the average annual premium paid during the previous three
years. (ARS § 33-1126.B)
Earnings of a minor child: The earnings of the minor child of a
debtor or the proceeds thereof by reason of any liability of such
debtor not contracted for the special benefit of such minor child.
Exempt Amount: 100%
ARS § 33-1126.A.2
Child support & spousal maintenance: All monies received by or
payable to a person entitled to receive child support or spousal
maintenance pursuant to a court order.
Exempt Amount: 100%
ARS § 33-1126.A.3
NOTE: Exemptions of ARS § 33-1126 do not apply to orders which are
the result of a judgment for arrearages of child support or for a
child support debt. (ARS § 20-1126.E)
THE NEXT TWO STATUTES I HAD AN ATTORNEY IN MY OFFICE LOOK AT TO SEE IF
THEY WOULD FIT YOUR SITUATION. ACCORDING TO HER, UNDER THE FIRST
STATUTE, IT LOOKS LIKE MONEY RECEIVED FROM AN INSURED?S INSURANCE
COMPANY IS EXEMPT FROM EXECUTION. UNDER THE SECOND STATUTE, IT LOOKS
LIKE MONEY RECEIVED FOR DAMAGED EXEMPT PROPERTY IS EXEMPT AS WELL,
INCLUDING DAMAGE TO A VEHICLE THAT WAS PART OF AN AUTOMOBILE ACCIDENT.
Health, accident, or disability benefits: All money, proceeds or
benefits of any kind to be paid in a lump sum or to be rendered on a
periodic or installment basis to the insured or any beneficiary under
any policy of health, accident or disability insurance or any similar
plan or program of benefits in use by any employer, except for
premiums payable on such policy or debt of the insured secured by a
pledge, and except for collection of any debt or obligation for which
the insured or beneficiary has been paid under the plan or policy and
except for payment of amounts ordered for support of a person from
proceeds and benefits furnished in lieu of earnings which would have
been subject to such order and subject to any exemption applicable to
earnings so replaced.
Exempt Amount: 100%
ARS § 33-1126.A.4
Damage to exempt property: Money from any claim for the destruction
of, or damage to, exempt property, including fire or other insurance.
Exempt Amount: 100%
ARS § 33-1126.A.5
Life insurance policies: The cash surrender value of life insurance
policies where for a continuous unexpired period of two years such
policies have been owned by a debtor and have named as beneficiary the
debtor's surviving spouse, child, parent, brother or sister, or any
other dependent family member, in the proportion that the policy names
any such beneficiary, not to exceed twenty-five thousand dollars in
cash surrender value, except that, subject to the statute of
limitations, the amount of any premium paid in fraud of creditors,
with interest thereon, shall inure to their benefit from such cash
surrender value. In this paragraph "dependent" means a family member
who is dependent upon the insured debtor for not less than half
support.
Exempt Amount: $25,000
ARS § 33-1126.A.6 & ARS § 20-1131(D)
Wrongful taking of exempt property: Any claim for damages recoverable
by any person by reason of any levy upon or sale under execution of
his exempt personal property or by reason of the wrongful taking or
detention of such property by any person, and the judgment recovered
for such damages. Exempt Amount: 100%
ARS § 33-1126.A.7
Bank account: Money held in a single account in any one financial
institution as defined by ARS § 6-101 [banks, trust companies, savings
and loan associations, credit unions, consumer lenders, international
banking facilities and financial institution holding companies under
the jurisdiction of the state banking department]. The exemption does
not apply against normal service charges assessed against the account
by the financial institution at which the account is carried.
Exempt Amount: $150
ARS § 33-1126.A.8
IRAs: Money in qualifying Individual Retirement Accounts, except
amounts contributed within one hundred twenty days before bankruptcy
or amounts to an alternate payee under a qualified domestic relations
order.
Exempt Amount: 100%
ARS § 33-1126.C
Tools of trade: The tools, equipment, instrument and books of a
debtor or the spouse of a debtor primarily used in, and necessary to
carry on, the commercial activity, trade, business or profession of
the debtor or the debtor's spouse. This does not include a motor
vehicle primarily used by a debtor for personal, family or household
purposes such as transportation to and from the debtor's place of
employment.
Exempt Amount: $2,500
ARS § 33-1130.1
Farming implements: Farm machinery, utensils, implements of
husbandry, feed, seed, grain and animals belonging to a debtor whose
primary income is derived from farming.
Exempt Amount: $2,500
ARS § 33-1130.2
Arms, uniforms and accoutrements: All arms, uniforms and
accoutrements required by law to be kept by a debtor.
Exempt Amount: 100%
ARS § 33-1130.3
Disposable earnings: That remaining portion of a debtor's wages,
salary or compensation for his personal services, including bonuses
and commissions, or otherwise, and includes payments pursuant to a
pension or retirement program or deferred compensation plan, after
deducting from such earnings those amounts required by law to be
withheld. Exemption does not apply a Bankruptcy Court order under
Chapter 13, or to any debt due for any state or federal tax. Exempt
Amount: Greater of 75% or 30 times Federal hourly minimum wage
50% for support orders
ARS § 33-1131
Fraternal Benefit Society benefits.
Exempt Amount: 100%
ARS § 20-877
Unemployment compensation benefits. Exemption does not apply to
actions to recover support under the child support enforcement act, or
to recover over issuances of food stamp coupons
Exempt Amount: 100%
ARS § 23-783
Workmen's compensation benefits.
Exempt Amount: 100%
ARS § 23-1068
Welfare assistance.
Exempt Amount: 100%
ARS § 46-208
Firemen's relief and pension benefits. Exemption does not apply to
child support. Exempt Amount: 100%
ARS § 9-968
Police pension benefits. Exemption does not apply to child support.
Exempt Amount: 100%
ARS § 9-931
Arizona Rangers' pensions.
Exempt Amount: 100%
ARS § 41-955
Arizona State Retirement Benefits: Benefits and annuities, member and
employer contributions and the securities in Arizona State Retirement
System [ASRS] accounts.
Exempt Amount: 100%
ARS § 38-792
Long-Term Disability [LTD] Program benefits. Employer and member
contributions and the securities in the LTD trust fund established by
section 38-797.02 are not subject to execution or attachment and are
nonassignable except as specifically provided in this article.
Exempt Amount: 100%
ARS § 38-797.11
Corrections Officer Retirement Plan benefits. The right of an
individual to a pension, to a refund of accumulated member
contributions, to the pension itself or to any other right accrued or
accruing to any individual, and the monies and assets of the
retirement plan, are not subject to execution, garnishment,
attachment, the operation of bankruptcy or insolvency law or other
process of law except a qualified domestic relations order and are
unassignable except as may be otherwise specifically provided.
Exemption does not apply to a qualified domestic relations order or a
judgment for child support.
Exempt Amount: 100%
ARS § 38-897
Public Safety Personnel Retirement System. Benefits, employee
contributions or employer contributions, including interest, earnings
and all other credits, payable under this system shall not be subject
in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, charge, garnishment, execution or levy of any
kind, either voluntary or involuntary, prior to actually being
received by the person entitled to the benefit, contribution, earning
or credit, under the terms of the system, and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge
or otherwise dispose of any such right hereunder shall be void.
Exempt Amount: 100%
ARS § 38-850.C
Specific partnership property. Repealed effective 1/1/2000.
Exempt Amount: N/A
ARS § 29-225
Source: Donney & Associates
( http://www.doney.net/ex-az.htm#exclusion )
* * * * * * * * * *
If you have won a judgment, you CAN collect on the judgment while the
case is on appeal. HOWEVER, if they win the appeal, you will have to
repay the money into the court, plus interest. Most people who have a
judgment against them who plan on appealing their case will put up a
bond with the Court. That is, they have an insurance company bond
them saying they are good for the money - OR - they will deposit the
judgment amount into the court for the Court to hold. Though I cannot
find a statute to cite this information, this has been confirmed with
two attorneys I work with.
The person who filed the appeal can also file a Stay of Execution,
meaning, if the judge agrees, you cannot collect on the judgment until
after the appeal is heard.
12-1179. Appeal to superior court; notice; bond
A. Either party may appeal from a justice court to the superior court
in the county in which the judgment is given by giving notice as in
other civil actions within five calendar days after rendition of the
judgment pursuant to this section. The appeal shall be filed in
accordance with this section, and the time to appeal shall not be
extended or otherwise affected by the filing of a motion to set aside
or vacate the judgment or similar motion.
B. A PARTY SEEKING TO APPEAL A JUDGMENT SHALL FILE WITH THE NOTICE OF
APPEAL A BOND FOR COSTS ON APPEAL. The justice of the peace shall set
the bond in an amount sufficient to cover the costs on appeal. The
bond shall be payable to the clerk of the justice court. If a party is
unable to file a bond for costs on appeal, the party shall file with
the justice court a notice of appeal along with an affidavit stating
that the party is unable to give bond for costs on appeal and the
reasons therefor. Within five court days after the filing of the
affidavit, any other party may file, in the justice court, objections
to the affidavit. The justice of the peace shall hold a hearing on the
affidavit and objections within five court days thereafter. If the
justice court sustains the objections, the appellant shall file,
within five court days thereafter, a bond for costs on appeal as
provided for in this section or in such lesser amount as ordered by
the justice court.
C. A PARTY SEEKING TO APPEAL A JUDGMENT MAY STAY THE EXECUTION OF
EITHER THE JUDGMENT FOR POSSESSION OR ANY JUDGMENT FOR MONEY DAMAGES
BY FILING A SUPERSEDEAS BOND. The justice court shall hold a hearing
on the motion within five court days after the parties advise the
justice court of their failure to stipulate on the amount of the bond.
The stay is effective when the supersedeas bond or bonds are filed.
D. The party seeking to stay the execution of the judgment for
possession shall file a supersedeas bond in the amount of rent
accruing from the date of the judgment until the next periodic rental
date, together with costs and attorney fees, if any. The tenant shall
pay to the clerk of the justice court, on or before each periodic
rental due date during the pendency of the appeal, the amount of rent
due under the terms of the lease or rental agreement. Such amounts
shall be made payable by the justice court to the owner, landlord or
agent as they accrue to satisfy the amount of periodic rent due under
the lease or rental agreement. In all cases where the rent due under
the terms of the lease or rental agreement is paid through the justice
court as set forth in this subsection, the order of the court may
include a one-time handling fee in the amount of ten dollars to be
paid by the party seeking to stay the execution of the judgment for
possession. In no event shall the amounts paid per month exceed the
amount of monthly rent charged by the owner for the premises. If the
tenant raises habitability as provided for in sections 33-1324 and
33-1364 as an affirmative defense to the nonpayment of rent or the
tenant has filed a counterclaim asserting a habitability issue, the
justice court shall retain all money paid under this subsection
pending a final judgment.
E. If during the pendency of the appeal the party seeking to stay the
execution of the judgment for possession fails to pay the rent on the
periodic rental due date, the party in whose favor a judgment for
possession was issued may move the justice court to lift the stay of
the execution of the judgment for possession. The justice court shall
hear the motion to lift the stay of the execution of the judgment for
possession and release accrued monies, if any, within five court days
from the failure of the party to pay the periodic rent due under the
terms of the lease or rental agreement. If the judgment appealed from
involves a finding of a material and irreparable breach pursuant to
section 33-1368 or section 33-1476, subsection D, paragraph 3 the
justice court shall treat it as an emergency matter and conduct a
hearing on a motion to lift the stay of execution of the writ of
restitution within three days. If the third day is a Saturday, Sunday
or other legal holiday, the hearing shall be held on the next day
thereafter.
F. THE PARTY SEEKING TO STAY THE EXECUTION OF THE JUDGMENT FOR MONEY
DAMAGES SHALL FILE A SUPERSEDEAS BOND IN THE AMOUNT OF THE JUDGMENT,
TOGETHER WITH COSTS AND ATTORNEY FEES, IF ANY. The amount of the bond
shall be fixed by the court and payable to the clerk of the justice
court.
Source: Arizona State Legislature
( http://www.azleg.state.az.us/ars/12/01179.htm )
I have also found an AZ statute that says if someone appeals a case to
delay payment of a judgment, he can be legally punished:
12-2106. Penalty for taking frivolous appeal or appeal for delay
When the supreme court is of the opinion that an appeal has been taken
for delay, and that there was not sufficient grounds for taking an
appeal, it may include in its judgment an additional amount, not
exceeding ten per cent of the judgment appealed from, if the judgment
is for the recovery of money, and not exceeding five hundred dollars
in other cases, as damages for a frivolous appeal.
Source: Arizona State Legislature
( http://www.azleg.state.az.us/ars/12/02106.htm )
To obtain a Writ of Execution, you must file a Praecipe for a Writ of
Execution with the Clerk of the Court. I spoke with the Court Clerk
at the Federal Courthouse in Tuscon, AZ and she told me that a
standard pleading would be acceptable for a Writ of Execution in lieu
of a court issued form. The body of Praecipe for Writ of Execution,
placed below the case heading, looks something like this:
= = = = = = = = = =
TO CLERK OF SAID COURT:
Please issue a Writ of Execution to the [COUNTY] Sheriff in the
above-named case upon Plaintiff/Defendant, [NAME], at his/her last
known address of [ADDRESS], in [CITY], [COUNTY], [STATE]. Said Writ
is to be served by the Sheriff of [COUNTY].
Date of Judgment: _____________
Please issue the execution for the following amounts owing:
Judgment Amount: $_____________
Interest rate at ____ from the date of Judgment $_____________
Costs: $_____________
TOTAL: $_____________
DATED this ________ day of _______________, 2005
(Indent to the far right)
[NAME], Plaintiff
BY: [SIGNATURE OF PLAINTIFF OR PLAINTIFF?S ATTORNEY]
[ADDRESS]
= = = = = = = = = =
This should be filed with the clerk of the Court that the original
case was filed in. In AZ, the filing fee is $17.00. Be specific
about the location of the property of which you are aware (i.e., last
known address of the Defendant/person you obtained a judgment
against). A deposit of $100.00 is required for service of the Writ.
Source: Enforcing a Civil Judgment
( http://www.co.yavapai.az.us/departments/Jpp/pjcforms/EnforceJudgment.pdf )
They will in turn, issue a Writ of Execution and send it back to you.
You will then send it to the Sheriff of the county that the person you
are collecting from lives in. You MUST know a physical address upon
which to serve or the Writ will not be issued. When you are paid in
full you must file a Satisfaction of Judgment with the court.
It is my opinion that you should contact a lawyer, or continue to
retain the services of the lawyer you used in your case to obtain this
Writ of Execution by the Court. There is a lot of paperwork involved
and if you do it incorrectly, you will incur additional costs for
multiple service attempts.
If this answer requires further explanation, please request
clarification before rating it, and I'll be happy to look into this
further.
Nenna-GA
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