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Arizona Settlement Conference

Mandatory Settlement Conferences

Settlement conferences are mandatory in Arizona civil cases involving disputes of more than $50,000. Settlement conferences are required in an attempt to alleviate the Arizona Superior Courts from managing all the cases by themselves. The rule for mandatory settlement conferences is done in part to help the parties settle without a trial.

Rule 16.1 of the Superior Court Rules of Civil Procedure that makes settlement conferences mandatory in any cases where the amount in dispute is more than $50,000. If the amount in dispute is less than $50,000 then an Arbitration Hearing is held–in lieu of the Settlement Conference.

Rule 16.1(c) requires that,

“every party and its counsel must attend a settlement conference…Additionally, each party must have a representative present who has actual authority to enter into a binding settlement agreement.”
Superior Court Rules of Civil Procedure 16.1

settlement conference memo

In preparation of the Settlement Conference a memorandum must be prepared and delivered to the settlement mediator and the opposing party.

The Settlement Conference Memo must contain; a) general description of the claims, defenses, and issues in the action, and each party’s position on each claim, defense, and issue. b) a general description of the evidence the party anticipates presenting at trial. c) a summary of any settlement negotiations that have already occurred. d) each party’s assessment of the likely outcome if the action proceeds to trial, and e) any other information that might be helpful in settling the action.

Retired judges often serve as the mediator for the settlement conference. During the day of the conference the parties typically are located in separate rooms and never speak directly to each other.

settlement conference outcomes

It is important to note that the mediator will not making any decision or ruling. The mediator does not have the authority to make a binding ruling. Plus the mediator cannot force either party into accepting or rejecting a settlement offer made by the opposing party. They are simply there to help each understand the other person’s point of view and to see if there is any middle ground upon which all can agree.

Furthermore, the mediator will remind the parties of the huge costs, risk, time, energy and stress that are required to forward a case to trial.

the dunaway law group can help you

If you need help from an experienced lawyer, then contact the Dunaway Law Group by messaging us HERE or calling us at 480-389-6529.

* 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.

Reaffirmation Agreements

A reaffirmation agreement is a contract made between a debtor and a creditor during a bankruptcy proceeding. In this agreement, the debtor agrees to continue repaying a specific debt even after the bankruptcy case is concluded. The debt remains valid and unaffected by the bankruptcy discharge, allowing the debtor to keep certain collateral, such as a car, that is tied to the debt.

ADVANTAGES TO SIGNING the REAFFIRMATION

As long as debtor abides by the terms of the reaffirmation agreement it is a sure way to keep your property. The creditor will mail the debtor monthly statements and report payments to the credit bureaus which will increase your credit score.

DISADVANTAGES TO SIGNING the reaffirmation

A reaffirmed debt remains your personal legal obligation to pay. The reaffirmed debt is not discharged in your bankruptcy case. That means that if you default on your reaffirmed debt after your bankruptcy case is over, the creditor may be able to take your property or your wages.

So, if you reaffirm a debt and then fail to pay it, you owe the debt the same as though there was no bankruptcy. The debt will not be discharged and the creditor can take action to recover any property on which it has a lien. The creditor can also take legal action to recover a judgment against you. The reaffirmation leaves a debtor personally liable, and can no longer just “walk away” from the debt.

UNDUE HARDSHIP to the debtor(s)?

In Arizona, a bankruptcy judge can deny a debtor’s request to reaffirm a debt if it appears that the agreement would pose an undue hardship. In fact, in 99% of instances the bankruptcy judge will find that there is a presumption of undue hardship and will not approve the reaffirmation agreement.

If a debtor does not have enough income left over, after deducting expenses, to make the required payments. In this situation, you will have to overcome the presumption of undue hardship by showing that you can afford to pay for the property.

reaffirmation agreement hearing

As part of the reaffirmation process hearing is held with the bankruptcy court. The court will approve the reaffirmation agreement only if you can demonstrate that you are financially able to make the monthly payments without it being an undue hardship.

When will the reaffirmation be effective?

If the creditor is a traditional bank, the reaffirmation agreement becomes effective when it is filed with the court unless the reaffirmation is presumed to be an undue hardship.

If the Reaffirmation Agreement is presumed to be an undue hardship, the court must review it and may set a hearing to determine whether you have rebutted the presumption of undue hardship.

How soon must a debtor decide?

If you decide to enter into a reaffirmation agreement, you must do so before you receive your discharge. The signed agreement is to be filed with the bankruptcy court no later than 45 days after the 341 hearing, so the court will have time to schedule a hearing to approve the agreement if approval is required. However, the court may extend the time for filing, even after the 45-day period has ended.

If you need help from an 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. 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.

Injunctions and Shared Wells

In the world of law, there are times when simply awarding money will not resolve a dispute. Sometimes, you need the court to step in and say, “Stop that!” or, less commonly, “Make it happen!” That’s where injunctions come in. An injunction is an order issued by a judge that forces a person or entity to perform an action or stop taking certain action.

An injunction is a court order that compels a person to either do or refrain from doing specific acts. There are two main types:

Prohibitory injunctions: These are the most common type. They tell someone to stop doing something, like harassing a neighbor or using a stolen trade secret.
Mandatory injunctions: Less frequent, these require someone to take action, such as cleaning up environmental damage or removing a building that violates zoning laws.

Injunctions are issued to prevent what’s called irreparable harm. This means the harm that would occur if the action is not stopped (or started) can’t be adequately compensated with money. Imagine a unique piece of art being destroyed – you can’t just replace it with cash!

There are also two main timelines for injunctions:

Preliminary injunctions: These are temporary orders issued before a trial to preserve the situation. Think of them as a “hold on” button while the judge considers the case.
Permanent injunctions: These are issued as part of the final judgment in a lawsuit and stay in effect indefinitely, or until certain conditions are met.

It’s important to note that violating an injunction is serious business. It can lead to fines, imprisonment, or even being held in contempt of court.

Here are some real-life examples of injunctions:

A competitor is selling a product that infringes on your copyright. You can seek an injunction to stop them from selling it.
A construction project is causing damage to your property. You can seek an injunction to halt construction until the issue is resolved.
A former employee is violating a non-compete agreement. You can seek an injunction to prevent them from working for a competitor.

Arizona Law on Injunctions. Generally, Arizona law requires the moving party to prove several elements before granting an injunction. Specifically, the moving party must demonstrate by a preponderance of the evidence: a reasonable likelihood of success at trial; the remedies at law are inadequate; the threatened injury to the movant outweighs the potential harm to the nonmoving party; and the public interest would not be disserved by granting the requested injunction.

Hearing on the Injunction. Rule 65(a) requires a hearing on an application for a preliminary injunction for the purpose of providing the party opposing the preliminary injunction to have an opportunity to be heard and present testimony when there are disputed issues of fact. McCarthy Western Constructors, Inc. v. Phoenix Resort Corp., 169 Ariz. 520, 821 P.2d 181 (Ct. App. Div. 1 1991), redesignated as opinion and publication ordered, (Apr. 2, 1991)

Injunction Bond. Under Ariz. R. Civ. P. 65(c)(1), a condition for securing any restraining order or preliminary injunction is the posting by the applicant of security, usually an injunction bond, in an amount fixed by the Court “for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.”

The amount of the bond fixed by the Court limits the surety’s liability, but not the amount of wrongful injunction damages that may be recovered from the party obtaining the injunction. Smith v. Coronado Foothills Estates Homeowners Ass’n Inc., 117 Ariz. 171, 571 P.2d 668 (1977).

The surety’s liability on the bond may be enforced by motion in the same action in which the injunction was secured, by proceeding under Ariz. R. Civ. P. 65.1.

The recovery may include the attorney’s fees incurred in securing dissolution of the injunction. U.S. Fidelity & Guar. Co. v. Frohmiller, 71 Ariz. 377, 227 P.2d 1007 (1951); Mason Dry Goods Co. v. Ackel, 30 Ariz. 7, 243 P. 606 (1926).

The fees recoverable are only those incurred in procuring the dissolution of the injunction, however, and not the fees incurred in the general defense of the case, which must be segregated. Hammond v. A.J. Bayless Markets, 58 Ariz. 58, 117 P.2d 490 (1941); Jacobson v. Laurel Canyon Mining Co., 27 Ariz. 546, 234 P. 823 (1925); State v. Williams, 12 Ariz. App. 498, 472 P.2d 109 (Div. 1 1970).

Modification or Dissolution of Preliminary Injunction. Between the date of its issuance and the trial on the merits, a preliminary injunction may be dissolved or modified upon application of the enjoined party, after an answer is filed. See Ariz. R. Civ. P. 65(a)(3).

If the basis for securing a modification or dissolution is the fact that the material allegations of the complaint have been denied, the answer should be verified. Unless such a motion is unopposed, the court must hold an evidentiary hearing. Ariz. R. Civ. P. 65(a)(3).

A trial court’s order dissolving a preliminary injunction is generally reviewed for an abuse of discretion, except that issues of law involved in that determination will be reviewed de novo. Griffis v. Pinal County, 213 Ariz. 300, 141 P.3d 780 (Ct. App. Div. 2 2006), opinion vacated on other grounds, 215 Ariz. 1, 156 P.3d 418, 35 Media L. Rep. (BNA) 1726 (2007).

Rule 65(a)(2)(C), which authorizes an application to dissolve or modify preliminary injunctions, does not provide a vehicle for attacking the original basis for the injunction on grounds that were available when the request for injunctive relief was first heard. Town of Tortolita v. Napolitano, 199 Ariz. 556, 20 P.3d 599 (Ct. App. Div. 1 2001).

Rather, the rule serves the much more limited purpose of providing a means to show that changed circumstances, including matters which could not reasonably have been raised at the preliminary injunction hearing, or changes in the law, require that the injunction be modified or dissolved. TP Racing, L.L.L.P. v. Simms, 232 Ariz. 489, 307 P.3d 56 (Ct. App. Div. 1 2013); Town of Tortolita v. Napolitano, 199 Ariz. 556, 20 P.3d 599 (Ct. App. Div. 1 2001)

Consolidation of Preliminary Injunction Hearing with Trial on the Merits. In the interests of expediting the final resolution of the dispute, and particularly in instances where most of the evidence that bears upon the controversy will be presented at the preliminary injunction hearing, the court may order that the hearing be consolidated with the full trial on the merits. See Ariz. R. Civ. P. 65(a)(2). Riess v. City of Tucson, 19 Ariz. App. 579, 509 P.2d 651 (Div. 2 1973).

Even where such a consolidation is not ordered, evidence received during the preliminary injunction hearing which would be admissible at the trial on the merits becomes part of the record and need not be offered and received again at trial. See Ariz. R. Civ. P. 65(a)(2)(C).

Violation of Injunction. Disobedience of an injunction may be punished as a contempt of court. Ariz. R. Civ. P. 65(f)(1). See also Green v. Lisa Frank, Inc., 221 Ariz. 138, 211 P.3d 16 (Ct. App. Div. 2 2009) (acknowledging limitations prescribed by language of [former] Rule 65(j) [currently, Rule 65(f)] and discussing inherent authority of the court to dismiss an action for failure to comply with injunctive orders).

The party in whose favor the injunction was issued and who believes the injunction has been violated, must file an affidavit stating that the party against whom the injunction was issued is guilty of disobeying it, and describing the acts claimed to constitute disobedience of the injunction. See Ariz. R. Civ. P. 65(f)(2).

Ariz. R. Civ. P. 65(f)(3) contains detailed order to show cause procedures that must be followed on receipt of the affidavit. Those procedures include setting a date for any written response, and requiring the person allegedly violating the injunction to appear and respond. The order to show cause, and the supporting affidavit, must be served on the person to be charged with contempt at least 10 days before any hearing. See Ariz. R. Civ. P. 65(f)(3) and (4).

If the person against whom the injunction was issued fails to appear or make return on the order to show cause, the court may direct that person’s arrest. If the claimed contemnor is a corporation and fails to appear, an attachment for sequestration of the corporation’s property may issue. See Ariz. R. Civ. P. 65(f)(7).

If, upon appearance, the person against whom the injunction was issued is found to have disobeyed it, the court may commit that person to jail until the contempt is purged in a fashion the court directs, or until that person is discharged by law. See Ariz. R. Civ. P. 65(f)(6).

Injunctions are a powerful tool for protecting your rights and preventing harm. If you think you might need an injunction, consult an experienced attorney then contact the Dunaway Law Group at 480-702-1608 or message us HERE. *This information is provided as 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

Eviction Trials in Arizona

What is the Difference between an Eviction Hearing and Eviction Trial?

Every eviction in Arizona requires an Eviction hearing, and occasionally a case will be set for trial. Under certain circumstances the Arizona Residential Landlord and Tenant Act requires that an eviction case be set for a trial. An eviction case will be set for trial if a tenant appears and presents a legitimate legal defense. Depending on how strict the judge interprets this statute, the hearing may be immediately stopped and matter set for trial. Other judges will allow the landlord’s attorney and the tenant an opportunity to present their best arguments for a moment before entering judgment or setting it for trial. However, most judges will not listen to any testimony or view evidence at the initial hearing and just set it for trial.

Rule 11(c) of the Rules of Civil Procedure for Eviction Actions states that “The court may order the continuance of a trial date by up to three court days in justice court or ten days in superior court on the request of a party for good cause shown or to accommodate the demands of the court’s calendar… No continuance of more than three court days in justice courts or ten days in superior courts may be ordered unless both parties are in agreement”.

What Can I Expect at an Eviction Trial?

Eviction trials can last from 30 minutes to several hours. At trial, both parties are given the opportunity to make brief introductory statements. Landlords and tenants may introduce evidence and question witnesses. Evidence will consist of pictures, emails, text messages, lease agreements, etc.

In Arizona, all eviction cases–whether in the justice court or superior court–are controlled by the Rules of Procedure for Eviction Actions. If a Plaintiff-landlord wishes to have a trial by jury then it can be requested.

“Trial Settings. Contested detainer matters shall be set for a trial by a judge alone unless a jury trial is demanded by the plaintiff in the complaint or by the defendant at or before the initial appearance. Failure to request a jury trial at or before the initial appearance shall be deemed a waiver of that party’s right to a jury trial. At the initial appearance, if a jury trial has been demanded, the court shall inquire and determine the factual issues to be determined by the jury. If no factual issues exist for the jury to determine, the matter shall proceed to a trial by the judge alone regarding any legal issues or may disposed of by motion or in accordance with these rules, as appropriate.”
Rule 11(d) of the Rules of Procedure for Eviction Actions

1. What happens at the initial hearing? Eviction hearings are bunched into tight blocks of time. It is not uncommon for 30 eviction hearings to be scheduled in a 60 minute block! During these hearings, the courtroom is packed with attorneys, landlords, tenants, and crying babies. Thus, Judges are under necessity to move through each case as quickly as possible. Additionally, the hearings move swiftly because often the defendants (tenants) don’t appear at the hearing and a default judgment is granted.

This short period of time does not allow for testimony, opening arguments, or to review evidence. So, just because a case was set for trial it does not mean that the opposing party did something right or that we did anything wrong.

2. Why would a judge set a case for trial? If a tenant appears at the hearing and denies the allegations contained in the Complaint, the Judge may set the matter for trial.

If the original eviction Complaint was filed for failure to pay rent a tenant might appear and too the judge that they are actually current on their rent. As mentioned above, the Judge does not have time during this block of time to hear either parties’ argument, and he or she will set it for trial.

Another example is if the eviction case was filed for a material breach of the lease agreement. For instance, if the signed lease agreement states that only two people may occupy the property. If the property owner finds out that there are 22 people living in the house he or she may file for an eviction based on the fact that the Tenants had more than the allowed number of occupants in the home; which is a breach of the original signed agreement. However, the Defendant (tenant) may appear and claim that the people in the house are just visiting. In this case the matter would be set for trial.

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