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Served With a Court Summons?

If you receive a summons from a creditor this means that the creditor is now using the legal system to try and collect on the money that is allegedly owed. Receiving a complaint and summons means that you have been sued and you need to take this matter seriously. You need to formulate a plan of action for how to respond to being sued by a creditor.

Generally speaking, the minute you file bankruptcy the lawsuit will completely disappear. The automatic stay of bankruptcy goes into effect and it becomes illegal for the creditor to continue harassing you. However, if for one reason or another you cannot immediately file bankruptcy then you basically have two options.

Option 1: Ignore the Summons

Option one, is to just ignore the Summons altogether. It’s your God-given right to just ignore the Summons, you don’t have to file an Answer with the court. However, if you don’t file an Answer with the court then the judge will grant them a Default Judgment. A Default Judgment basically means that the creditor wins by default.

Once a creditor has a Judgment against you things can get very sticky. With this new Judgment a creditor will be able to go back into court and ask to enforce it. The creditor will be able to ask for things like a Writ of Garnishment or a bank levy. So, once a creditor has a Judgment against you either you will pay them in full or you will file bankruptcy.

Option 2: Answer the Summons

Your second option, to handling the Summons is to file an Answer with the court. Currently, the filing fee in the Superior Court is $245 and $68 in the Maricopa County Justice Court. In addition to the fee, once you file an Answer you are required to comply with a long list of court rules.

In 99% of the instances if you try and fight a Summons you’ll end up losing the case and the creditor will receive a Judgment against you anyway. Again, once the creditor receives a judgment you are either going to pay them or you’re going to file bankruptcy.

If you need help from an Arizona attorney, then contact the Dunaway Law Group at 480-389-6529 or message us HERE.

These blog posts are not intended nor shall they be deemed to be the rendering of legal advice. Reading these blog posts does not create an attorney-client relationship, nor shall it impose an obligation on the part of the attorney to respond to further inquiry.

Non-Disclosed Home Defects

Arizona real estate agents are required to “disclose in writing to all other parties any information the licensee possesses that materially or adversely affects the consideration to be paid by any party to the transaction”. A real estate agents failure to disclose a known defect about the property could put their license in jeopardy and expose themselves to financial sanctions!

R4-28-1101 of the Arizona Administrative Code of Professional Conduct: states that real estate agents owe a fiduciary duty to the client and shall protect and promote the client’s interest. However, it also states that they are to deal fairly with all parties to the transaction–even the buyer.

Don’t hide your eyes from defects that should be disclosed to potential home buyers.

What if a Complaint is made to the AZDRE?

If a complaint is made by a party to a real estate purchase that an Arizona real estate agent hid material information from the buyer than a notice will be sent to that real estate agent. The Arizona Department of Real Estate (AZDRE) will begin a thorough review of the complaint to make a finding of their own. As part of this review process it is highly likely that the AZDRE will ask the real estate agent for all documents pertinent to this situation. For instance, they may ask for all emails, text messages, contracts, addenda to the contract, etc.  

Do Not Simply Ignore the Department’s Requests

If you are a real estate agent who has received a request from the AZDRE for documentation do not ignore it! Ignoring the problem will not make it go away. Don’t think that by sticking your head in the sand the AZDRE will forget about the alleged violation. In fact, simply ignoring the Department’s request for documents can cause you to lose your real estate license AND prevent your from renewing or reapplying for a license!

A.R.S. 32-2153(B)(11): States that “The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license failure “to respond in the course of an investigation or audit by providing documents or written statements.”

Don’t be this type of Arizona real estate agent! If you are the victim of a dishonest real estate agent or if you are a real estate agent who needs to correct her wrongs then contact the Dunaway Law Group at 480-389-6529 or at HERE.

* The information provided is informational only, does not constitute legal advice, and does not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

Builders Risk Insurance

What is Builder’s Risk Insurance?

Builder’s risk insurance is a type of insurance policy which covers residential and commercial structures while they are under construction or being remodeled, or renovated. Builder’s risk insurance is “coverage that protects a person’s or organization’s insurable interest in materials, fixtures and/or equipment being used in the construction or renovation of a building or structure should those items sustain physical loss or damage from a covered cause.”

Builder’s risk policies are typically available for three types of construction; ground-up new construction, remodeling and renovation.

What is Covered?

Builder’s risk is intended to protect construction sites from loss due to certain types of damage. The exact coverage and limitations varies between providers and policies but generally builder’s insurance will cover against loss from:

  • theft, 
  • vandalism, 
  • fire,
  • damage to equipment,

Additional coverage can be purchased to include protection from loss due to:

  • flood, 
  • windstorm, 
  • earthquake,
  • mudslides,
  • construction materials,
  • temporary structures, 
  • fencing,
  • scaffolding and landscaping.  

What is NOT Covered by Builder’s Risk Coverage?

  • terrorism, 
  • acts of war,
  • government seizure, 
  • nuclear hazards,
  • injuries or accidents on the job site,
  • damage to materials while they are in transit to the property.

If you are thinking about building a custom home in Arizona and have questions about builder’s risk insurance then call the Dunaway Law Group at 480-389-6529 or send us a message HERE.

What is a Deed of Trust

Arizona Deeds of Trust

To fully understand the meaning of the deed of trust, you must first understand promissory notes. Arizona home buyers often think of the deed of trust is the contract they are signing with the lender to borrow money to purchase their home. However, that’s actually not the case. It’s the promissory note that contains the promise to repay the amount borrowed.

While he promissory note is basically an IOU that contains the promise to repay the loan, the deed of trust is the document that pledges the property as security for the loan. It is the deed of trust that permits a bank to foreclose if you fail to make the monthly payments or breach the loan agreement in some other way.

Deeds of Trust

A deed of trust, pledges real property to secure a loan. In Arizona deeds of trust are used instead of a mortgage. A deed of trust involves three parties:

  • the trustor, aka, the borrower;
  • the lender, often referred to as the beneficiary in legal documents;
  • and the trustee. The trustee is an independent third-party that holds their poor legal title to the property. The main function of the trustee is to sell the property at public auction if the trustor defaults on payments. Quite often, an Arizona, a real estate lawyer asked as trustee.

Deed of Trust Foreclosure

The judicial foreclosure is the process used with deeds of trust. In a nonjudicial foreclosure, the bank can’t foreclose without going to court so long as the deed of trust contains a power of sale clause.

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at [email protected] or 480-389-6529

Material Breach of Lease

10-day Notice for Material Breach of the Lease Agreement

Section 33-1368(A) of the Arizona Residential Landlord and Tenant Act gives guidance to Arizona landlords whose tenants have materially breached their rental agreement.

Section 33-1368(A) states in part;

“…if there is a material noncompliance by the tenant with the rental agreement…the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than ten days after receipt of the notice if the breach is not remedied in ten days.”

Section 33-1308(A)

Section 33-1368(A) goes on to say;

“…if the breach is remediable by repair or the payment of damages or otherwise, and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement will not terminate.”

Section 33-1368(A)

So, for example, if a lease agreement provides for two adults to live in your property but you find that 22 adults are living in the property then this is the notice you will want to send them.

The Initial 10 day Notice. A 10-day Notice addresses specific breaches of the lease agreement. For instance it might read, “I know you’ve got 22 people living in the house and we’re giving you 10 days to get rid of the extra 20 tenants.” If your tenants do get rid of their 20 roommates during the following ten days then you are not able to evict them because they rectified the situation within the allotted time.

Second 10 day Notice. However, if your tenants remove the 20 extra roommates and they return after the 10 day notice expires then we can sent them a second 10 day notice and there is no way they can rectify the situation at that point.

If you, are an Arizona landlord with tenants in material breach of their lease agreement then contact the Dunaway Law Group at 480-389-6529 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the state of Arizona and New York.