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Debt Collection

There is a multi-billion dollar debt-buying industry in this country. Debt collectors purchase literally hundreds of thousands of old debts for pennies on the dollar of what the original creditors have written off. These debt buyers/collectors receive minimal information on each account, and then begin attempting to collect.

Their business model is to cast a wide net without properly verifying whether the consumer owes the money, or even that they are suing the right consumer, and see what money is recovered. This litigation strategy is effective because very few consumers obtain legal representation, and the overwhelming majority of consumer defendants default in the collection action. Quite often, debt buyers do not have sufficient evidence to prove its case, but rely on junk evidence improperly admitted.

Many Arizonans do not answer the debt buyer’s complaint (lawsuit) and guess what? The debt collectors win by default, this is called a “Default Judgment”! This is what they are hoping happens—that you don’t seek legal representation—and that they will win without having to prove their case. In fact, many debt collectors will not even pursue a case once they know a defendant has obtained legal representation.

Reason #1: Because You May Not Owe This Debt

Debt buyers rely on credit reports to locate consumers, but the credit reports themselves are filled with errors, including “mismerged” information that mixes the credit reports of two or more people with similar names and other identifying information that results in the collector suing the wrong person. Also, debt collectors will bring actions against spouses and other parties knowing these defendants do not owe the debt, but hoping to either pressure them into payment or obtain a default judgment against them. Examples include, suits against authorized user not liable on the account and against family members of a deceased debtor. Additionally, the statute of limitations may make it possible for you to avoid a judgment.

Reason #2: Protect Your Assets and Income

A judgment against you can have serious financial consequences. Once a judgment is entered against you, your assets and income may be at risk. Your wages could be garnished. Once a debt collector obtains a Writ of Garnishment they can begin taking 10% of your gross paycheck–directly from your paycheck.

Additionally, bank accounts, may be frozen for days or even weeks, and may eventually be seized unless exemptions are properly pursued. Defeating this collection action eliminates those threats. Even if a default judgment has already been entered, contact us immediately because we may succeed in setting aside the default judgment or in minimizing the impact of these creditor remedies.

Reason #3: You May Have your own Claims

Often we discover that our clients have separate affirmative actions under the Fair Debt Collections Practice Act (FDCPA), Fair Credit Reporting Act (FCRA), and other federal and Arizona statutes, resulting in significant actual and statutory damages and attorney fees. Investigating the facts relating to your specific situation will often uncover various creditor violations.

Reason #4: Debt Collector May Have to Pay Your Attorney’s Fees

Often Arizona Debtors wonder how they may be able to pay for an attorney. However, there are a several ways that we may be able to recover our legal fees from the debt collector. Fees are also available to the consumer for prevailing on certain counterclaims, or as a result of the collector’s bringing an action without adequate facts.

Reason #5: Prevailing in the Collection Action Can Improve Your Credit Rating

If your case is dismissed, you can take action to ensure that credit reports indicate that the current balance of that debt is now reported as zero. If the Arizona judge also rules that you never owed the money (for example, because the collector sued the wrong person), then you can seek to delete information showing that you had been in default in the past. Additionally, you may have a cause of action under the Fair Credit Reporting Act (FCRA) if that information is not properly corrected.

Furthermore, in addition to fighting debt collectors, the Dunaway Law Group, assists Arizonans in seeking debt relief through bankruptcy. So if your debts have grown to an unmanageable level let’s see what we can do to help.

Time is not on your side, if you do nothing, a judgment will be entered against you. Arizona Consumers fare much better in court when they obtain legal representation. Know your rights, know your options, and have someone in your corner to fight for you. Contact the Dunaway Law Group at 480-702-1608 or by messaging us HERE, we may be able to help.

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. 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.

What is an Easement?

An Easement is the right to use real property owned by another person for a specific and limited use.

how are easements created?

Easements are created by several methods but they fall into two categories; “express” by an act or by “prescriptive” use of the easement.

1. Express Easement– An express easement is created by deed, contract, or other written agreement. Express easements are the fastest and most cost-effective way to establish access to a property.

2. Prescriptive Easement– Prescriptive easements are created through the circumstances and facts surrounding the use of land which indicates the parties intended for it to exist. This is why prescriptive easements are also known as “implied easements”. They are implied easements after a dominant estate has used the servient estate’s property in a continuous, uninterrupted and open manner for more than 10 years. There is not an official contract or written agreement for prescriptive easements.

Arizona law (A.R.S. § 33-2401) recognizes easements that may be requested by a landlocked owner who is surrounded by land owned by the state (of Arizona) or any political subdivision of the state, and states that “Notwithstanding any other law, reasonable access to private property shall not be denied by this state or any political subdivision of this state.”

Arizona law (A.R.S. § 12-1202) also recognizes a private landlocked landowner’s right to seek an easement from a neighboring landowner upon a showing of “reasonable necessity.”

types of easements

Right-of-Way Easement. A right-of-way easement is a legal right that allows someone to travel through or use a specific portion of another person’s property. It provides access across someone’s land for a particular purpose, such as reaching a public road, accessing a neighboring property, or accessing utilities or services. The dominant estate (the property benefiting from the easement) has the right to pass over the servient estate (the property subject to the easement) without interference. Right-of-way easements are typically established through a written agreement, deed, or court order.

Key Features of a Right of Way Easement–
a. It grants the right to pass over or use a specific part of the property.
b. It is often used for access purposes, such as roads, driveways, or pathways.
c. It may be exclusive (only the holder of the easement can use it) or non-exclusive (multiple parties can benefit from the easement).
d. The easement holder usually has the duty to maintain and repair the portion of the property subject to the easement.
e. The right of way may be limited to specific hours or purposes, depending on the agreement.

Ingress-Egress Easement. An ingress/egress easement, also known as an access easement, is a type of easement that specifically grants the right to enter or exit a property through another person’s land. It allows a property owner or occupant to access their property by passing over a neighboring property. Ingress refers to the right to enter the property, while egress refers to the right to exit the property.

Key Features of an Ingress-Egress Easement–
a. It grants the right to enter and exit a property.
b. It is often used when there is no direct access to a public road or when an alternative access route is more convenient.
c. The easement holder typically has the right to use the access route but may not have the right to use the rest of the servient estate.
d. The easement may specify the type of vehicles or equipment that can use the access route.
e. Maintenance and repair responsibilities may vary depending on the agreement.

Both the right-of-way easements and ingress-egress easements grant certain rights to individuals or entities regarding the use of someone else’s property. While there may be some overlap in their application, the easements types serve different purposes and have distinct characteristics. In comparison, a right-of-way easement provides a broader right to pass through or use a specific part of someone’s property, while an ingress-egress easement specifically grants the right to enter and exit a property through a neighboring property.

terminating an easement

Easements Can Be Terminated or Abandoned in 5 Basic Methods.

1. Termination by Expiration: Easements can be terminated by the expiration of an agreed upon time event. For example, there could have been an agreement that an easement will last 10 years at which time it will automatically terminate.

2. Termination by Agreement: This happens when the property owner expressly conveys an easement back to the grantor. For example, if Simon owns an easement over Garfunkel’s land, and Garfunkel requests that Simon release the easement, Simon may then execute the termination agreement and convey the easement back to Garfunkel.

3. Abandonment of an Easement: Easements can be terminated when the owner abandons her right to it. Usually, mere nonuse of an easement is not enough to qualify for termination. The owner must make a clear, unequivocal, decisive act to abandon the easement. For this reason, a Notice of Abandonment of Easement should be prepared and recorded with the county recorder.

4. Termination by Decision: A decisive act to abandon an easement could include creating a new alternate road to enter the property or installing fencing or a wall or some other time of barrier across the easement.

5. Termination by Merger of the Dominant and Servient Properties: Easements can be terminated by a merger of the dominant and servient properties. Under the doctrine of merger, if one party acquires the property subject to and benefited by an easement. The easement will have been said to merge with the other rights held by the owner.

Frequently, adjacent properties have an easement between them, allowing one or both parties access to the other. One is the servient property, and the property that benefits from the easement is the dominant property. In this case, you have an appurtenant easement. If one owner acquired both properties and combined them into one legal description, the easement would no longer be necessary. The two properties have merged. This makes sense, because an easement is the right to cross over the property belonging to another person. However, if you own the land, the easement will merge into the land because it is not necessary to have permission to cross your own property.

landlocked properties in arizona

In Arizona, it’s not unheard of for a piece of property in an isolated and undeveloped area to not have legal access to the property. Meaning there is not an Express easement or Prescriptive easement.

A landlocked owner has several options. If the seller of the Arizona property sold a portion of her land without a formal access roadway, then Arizona law implies in the sale of the property an easement across the seller’s remaining property for access–and utilities. If the seller of the land refuses, the landlocked owner can ask a court to enter an order compelling the seller to grant an easement. Because Arizona law generally presumes that transfer of real property includes by implication that there is a way the property can be accessed and used.

Private Condemnation of Properties. A landlocked property in Arizona may be able to file a “private condemnation” lawsuit, where the landlocked owner can ask a court for just enough of the neighboring property to build and maintain a roadway in order to access the property. The landlocked owner must prove that there is no sufficient alternative access to the property. As in public condemnation, private condemnation requires compensation to the owner of the property being taken.

Conclusion

Understanding easements can be very confusing, if you have questions then contact the Dunaway Law Group at 480-702-1610 or by sending us a message 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 states of Arizona and New York.

Rule 26.1 Disclosure Statement

Rule 26.1 of the Arizona Rules of Civil Procedure requires that the parties to a lawsuit to exchange Initial Disclosure Statements within 30 (thirty) days of the defendant filing an Answer. These disclosure statements are often referred to as “Rule 26.1 Statements” or “Rule 26.1 Disclosures” for short.

Initial disclosure statements are not filed with the court but simply shared with the opposing party as part of the discovery process. Arizona courts require the parties to exchange all relevant information to the opposing party in an attempt to avoid “trial by ambush” and to increase the odds of an out of court settlement.

What Must the Rule 26.1 Disclosure Statement Contain?

  1. Potential Trial Witness. The disclosure statement must list everyone who may testify at trial. Just because a person is listed it does not mean that they must later testify. However, if a person is not disclosed as a potential witness then they may not be called as a witness at trial. It simply gives the opposing party notice that you may be interested in having this person testify at the trial and what they may be testifying about.
  2. A list of other people with knowledge. The disclosure statement must also list persons who will not be called as trial witnesses, but may have information relevant to the subject of the lawsuit.
  3. Written Statements. The disclosure statement must provide a list of any written or recorded statements within their possession. 
  4. All forms of Communication and Information. Each party must disclose all relevant communication. This includes emails and text messages. Including electronically stored documents. 
  5. List of all other Documents. The disclosure statement must include all other relevant documents that are known to exist, regardless of whether or not they are favorable to your case. 

Any time new information is discovered it must disclosed to the opposing party by drafting an “amended” disclosure statement.

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 states of Arizona and New York.

Refund a Security Deposit

Properly Refunding a Security Deposit

Per A.R.S. § 33-1321(D) of the Arizona Residential Landlord and Tenant Act, a landlord must send a disposition of deposit letter to the former tenant within 14 (fourteen) business days. If the cost of the damage doesn’t exceed the deposit, the remainder of the deposit should be included. On the other hand, if the cost of the damage exceeds the deposit, this is your chance to state how much they owe you.

This letter needs to be sent within fourteen business days from the date your tenant vacated the property or the landlord may be subject to civil penalties.

If lawsuit arises in which a tenant claims their security deposit was kept unlawfully, and you didn’t send this letter, you could be at risk for “treble damages” – that is, three times what you kept unlawfully A.R.S. § 33-1321(E). Sending this letter goes a long way towards making sure all your bases are covered.

If you need a disposition of security deposit letter then download our free form letter. Click here to download the letter.

In instances where an Arizona tenant was evicted for nonpayment of rent, the landlord can keep the deposit to cover the judgment amount, but should still send a disposition of deposit letter informing the tenant what happened to their deposit.

Additionally, if you have a judgment for unpaid rent, and there are a lot of damages to the property, you don’t have to put the deposit towards the judgment – you can still use it to cover the damages.

If you are a landlord and need help from an Arizona real estate attorney then contact the Dunaway Law Group by phone 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.