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Discovery in Litigation

What is Discovery of Evidence?

During a lawsuit, each party has the opportunity to request formal “discovery” from the opposing party. The Discovery process is accomplished in a variety of ways, one is to send the opposing party a formal set of requests. These requests each seek different types of information from the opposing party.

Uniform and non-uniform Interrogatories:

Uniform interrogatories are a series of questions that are listed in the Arizona Rules of Civil Procedure. Depending on the type of case there is a set of different questions for the opposing party.

Non-uniform interrogatories are questions written by one party to a lawsuit. They send the questions to the opposing party and wait their response.

For example, a non-uniform interrogatory might ask, “Explain in detail why you did not make the payments as agreed”.

Request for Admissions:

“Requests for Admissions” allow one party to present the opposing party with statements that they must either Admit or Deny. They are written in a way so that the responding party must Admit the statement. If the responding party does not respond in the affirmative then they must provide a detailed explanation of why they denied the statement.

For example, a Request for Admissions could state,
“Admit that you entered into a written contract with the Plaintiff”.
“Admit that under the contract you were to pay the Plaintiff $5,000 a month.” “Admit that you did not pay the Plaintiff $5,000 per month”.

A party might deny one of the above statements of admissions by responding. “I deny that I was to pay Plaintiff $5,000 per month because I gave him a parcel of land as payment for the money borrowed.”

The effect of not responding to the Requests for Admissions is quite harsh. Under Arizona Rule of Civil Procedure 36(a)(4) “A matter [request] is admitted unless, within 30 days after being served, the party to who the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.”

Why does it matter if the Requests for Admissions are deemed Admitted? Well, the party asking for the Admissions can say to the Judge, “Your honor, we’ve proven our case and you should rule in our favor. The Defendants admitted there was a written agreement to borrow money and they admitted that they did not pay back the money as agreed. [Refer to my example above].

Arizona Rule of Civil Procedure 36(b) does allow a party to file a Motion asking the court for permission to withdraw or amend the admission. “Subject to Rule 16, the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on its merits.”

Request for Documents:

We are given the opportunity to request up to 10 different sets of documents from the opposing party. In Arizona, in the Rule 34 of the Rules of Civil Procedure, the responding party has 30 days to respond to the request for production of documents.

Lastly, similar to 26.1 initial discovery statements. These discovery requests are not submitted to the Court. In fact, the Judge will never see this information unless specifically and formally introduced as evidence at trial. So don’t worry about impressing the judge, we are simply exchanging all relevant information with the opposing party.

If you need help from an experienced Arizona attorney, then contact the Dunaway Law Group at 480-702-1608 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.

What is a Writ of Restitution?

Once an eviction judgment in obtained, an Arizona tenant has 5 calendar days to vacate the property. If the tenants do not voluntarily vacate within the 5 days, then an Arizona landlord can file a Writ of Restitution. The Writ of Restitution orders a constable–similar to a sheriff–to remove the tenants from the Property.

Upon arriving to the rental property, the Constable will let the tenants know that they have, anywhere from a few minutes to a few hours to vacate the Property. The tenants will have enough time to pack a bag of their essentials and leave. Whether it’s by reason or force, the tenants will be leaving when the constable orders.

Once the tenants have been removed from the rental property, it becomes a Class C misdemeanor if they ever return without the landlord’s permission.

When Will the Constable Execute the Writ?

When will the constable visit the rental property and actually remove the tenants? It’s impossible to give a precise estimate and the timeframe can vary wildly. When the Writ of Restitution is initially filed with the court the filing clerk must take the paperwork to the judge for his/her signature. Once signed by the judge it is delivered to the Constable. Sometimes, a judge may be busy or out of town and the Writ sits on their desk for days before it is signed.

Once the Writ is signed then it is delivered to the Constable for execution, and this can be another delay in the process. Most justice courts in Arizona, only have one Constable. So, if the Constable is on vacation, sick or receives a large number of Writs at the same time then it can take as long as two weeks before he is knocking on the property door! Though it usually takes 6 to 9 days for the Constable to actually show up to the rental property.

changing the doorlocks

It is strongly advised that the locks to the property are changed once the tenants have been removed by the constable. Ideally, a locksmith can go to the property at the same time as the constable and immediately change the locks. Sometimes, a constable is not able to communicate with the landlord prior to executing the writ of restitution. In these situations, send the locksmith to the rental property just as soon as possible.

In the picture below, you can see the constable, locksmith, and property owner all present during the execution of the writ.

Maricopa County constable serving a Writ of Restitution

How will i know if the tenants have already vacated the rental property?

There is no “scientific” way of knowing whether or not the tenants have left. Typically, by this point the tenants are not contacting the landlord and so they are not going to send an email or text informing the landlord they have left the property.

If a landlord lives near the rental property, then I recommend driving by–but do not make contact with the tenants–and look to see if there are signs that they are moving. For example, is there a moving truck in the driveway? Are people carrying out boxes? If you drive by at night are the cars gone and lights turned off?

Or, conversely, when you drive by the rental property are cars in the driveway and lights on in the house? If so, this is a good indication that the tenants have not left and have no intentions of leaving.

what if the tenants leave their belongings?

If the tenants leave behind their belongings, then an Arizona landlord must maintain the tenant’s belongings for a minimum of 14 days from the date the Writ of Restitution is executed. Click HERE to learn more about the 14-day process.

If you are an Arizona landlord and would like to know more about Writs of Restitution, then call the Dunaway Law Group by phone at 480-702-1610 or message us HERE.

Serving Notice to Tenants

In Arizona, every eviction begins with the landlord mailing some type of a notice to the tenant, i.e., 30-day, 10-day, 5-day, etc. Once the tenant has received the notice–or 5 days from the date of mailing has passed at which time it is considered to have been legally received–the tenant has a certain number of days to take action.

timing of notice

When a tenant has legally received a notice can be a little confusing. Proper calculation of time is explained in A.R.S. § 33-1313(B).

If notice is mailed by certified mail, the tenant is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first.
A.R.S. 33-1313(B)

For example, if a 5 day notice is sent to the Arizona tenant via certified mail and the tenant does NOT sign for the notice then we must wait 11 days before filing the eviction. Because it is legally received 5 days after mailing, plus they have the 5 days to make their rent payment.

However, if the Arizona tenant actually signs for the certified letter then the counting begins on that day. For example, if we sent the letter on Monday and the tenant signs for the letter on Tuesday then the 5 days to pay begins on Wednesday.

mailing the 5 day notice

In Arizona, the process of evicting a tenant for non-payment of rent begins with mailing a 5 day notice. If the tenant never signs for the 5 day notice it is still legally considered having been received 5 days after it was mailed.

A 5 day notice demands that the tenant pay ALL past due rent, late fees, and other outstanding fees in full within 5 days. If, the tenant attempts to tender the full amount owed within the 5 day period then it must be accepted. A landlord cannot reject the full outstanding balance owed and then turn-around and try to evict them for non-payment of rent.

It is important to note that if an Arizona landlord accepts a partial payment, even one dollar from a tenant then they cannot be evicted in that same calendar month for non-payment of rent.

If rent is not tendered within 5 days then an eviction lawsuit can be filed with the appropriate Arizona justice court. Within 6 days of filing the Complaint an eviction hearing will be held.

If you are an Arizona landlord and need help evicting a tenant then contact the Dunaway Law Group at 480-702-1608 or by messaging us HERE.

What if I Don’t Pass the Means Test?

The bankruptcy means test is a crucial component of the bankruptcy process. It is a formula used to determine whether an individual is eligible for Chapter 7 bankruptcy, which allows for the discharge of most debts. The means test was created as part of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, which aimed to prevent individuals from abusing the bankruptcy system.

the purpose of the means test

The purpose of the means test is to determine whether an individual has enough disposable income to pay back their debts. The test takes into account the individual’s income, expenses, and family size to determine their disposable income. If the individual’s disposable income is below the state median income, they are eligible for Chapter 7 bankruptcy. If it is above the median income, the individual may still be eligible for Chapter 7 bankruptcy but will need to complete additional calculations to determine their eligibility.

calculation of disposable income

Calculation of Disposable Income. The calculation of disposable income is a key component of the means test. Disposable income is the amount of income that is left over after an individual’s necessary expenses are deducted. The necessary expenses include housing, food, clothing, transportation, and other basic expenses. The means test uses standardized expense allowances for certain categories of expenses, such as housing and transportation, based on the individual’s location and family size. If an individual’s disposable income is above a certain threshold, they may not be eligible for Chapter 7 bankruptcy and may be required to file for Chapter 13 bankruptcy instead. Chapter 13 bankruptcy involves a repayment plan in which the individual pays back their debts over a period of three to five years.

Size of Your Household. The Chapter 7 bankruptcy means test compares your current monthly income against the median income for households similar in size. The means test looks at the average household income over the six months prior to filing. However, not all income is considered in the means test. Social security income, social security disability, veteran’s disability benefits, and child support payments are not considered. Conversely income from; employment, gifts, financial assistance from others, and income from a non-filing spouse are included in the calculation.

If you household income exceeds the median income for households of a similar size in your state you still may be able to qualify for a Chapter 7. This is because certain expenses are deducted from your current monthly income in order to determine your net monthly income. Now not all expenses are qualifying expenses, however, the following kinds of costs can be deducted: child support, alimony, tax withholding costs, health savings account, garnishments, certain utilities and several other types of expenses.

However, if you still do not qualify for a Chapter 7 even after deducting the qualified expenses you can still file bankruptcy. Most people who do not qualify for Chapter 7 bankruptcy because of their high income, are able to file Chapter 13 bankruptcy. Chapter 13 bankruptcy is a reorganization of your debts. The bankruptcy lasts for 3 to 5 years during which time you make payments to your creditors. At the end of the bankruptcy whatever balances are left over will be discharged.

If you are looking to file bankruptcy then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers. The Firm limits its practice to the state of Arizona and New York.

Bankruptcy and Underwater Cars

Bankruptcy can absolutely help if you owe more on your car than it is worth.

Chapter 7 Bankruptcy – 722 Redemption:

Filing for Chapter 7 bankruptcy can allow you to reduce the amount you owe on your vehicle. Through a “722 redemption” you can seek a court order that allows you to pay your car loan company a lump sum payment equal to the market value of your vehicle. Most people going through bankruptcy don’t have a lump sum amount to pay off their vehicle, however, there are several companies that do 722 redemptions and who will finance the lump sum payment. They will pay off your original loan and then you will make monthly payments to them.

How does the § 722 Redemption work?

Under 11 U.S.C. § 722 of the Bankruptcy Code you may redeem tangible personal property from a lien through paying the secured creditor a lump sum in a Chapter 7 Bankruptcy. In order to be eligible for a 722 redemption the property must be:

1) Tangible personal property intended primarily for personal, family or household use;

2) The secured claim must be paid a lump sum; and

3) The lump sum payment must be based on the current retail value.

If you wish to redeem your vehicle in a Chapter 7 bankruptcy then you need to apply for a § 722 redemption loan. We closely work with several banks that can assist you in applying for one of these special loans. Typically, the interest rate is higher than normal due to the risk involved for the lender. Once you have received a 722 redemption loan and are in a Chapter 7 bankruptcy, a motion will be filed to redeem the vehicle. If the motion is granted by the court then the secured creditor will be paid a lump sum amount based on the current retail value of the vehicle. The secured creditor will then release the lien held on the vehicle.

Chapter 13 Bankruptcy and Car Cramdown:

If the amount of your car loan is greater than the value of your car, you might be able to reduce the amount of your loan and the interest rate in a Chapter 13 bankruptcy through a cramdown. Cramdown is a funny word that basically means you can reduce the amount you owe to equal the current value of the car. Whatever is left becomes unsecured debt, and is treated like your other unsecured debts.

Cramdowns are available in Chapter 13 bankruptcy only — you cannot cram down a car loan in Chapter 7 bankruptcy. In a Chapter 13 bankruptcy, you propose a repayment plan to pay back your creditors over a three to five year period. In your plan, your attorney has the ability to propose that your car lender receive only the current value of your car instead of the current balance owed.

The unpaid portion of your loan is then treated as an unsecured debt. Other types of unsecured debt include credit cards and medical bills. Since most Chapter 13 plans pay little or nothing to these creditors, this means that your car lender will likely receive nothing or pennies on the dollar on the remaining balance of your loan. Upon completion of your bankruptcy, any unpaid balance on the car loan will be completely discharged and you will own the vehicle free and clear.

When you cram down a car loan in Chapter 13 bankruptcy, the law also allows you to lower your interest rate on the loan! In Arizona the interest rate will be determined by the current prime rate plus a little extra. Almost always this new interest rate is lower than your original car loan rate.

Additionally, the bankruptcy code places important restrictions on when you are allowed to cram down your car loan. In order to cram down a car loan, you must have purchased your vehicle at least 910 days (about 2 ½ years) prior to filing your bankruptcy.

If you are underwater on one or more of your vehicles and would like to speak with an experienced Arizona Bankruptcy Attorney then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice and does not create a lawyer-client or attorney-prospective client relationship. The law changes quickly and varies from jurisdiction to jurisdiction. As such, readers should not act upon this information without seeking advice from professional advisers. Additionally, this Firm limits its practice to the states of Arizona and New York.