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.

Appeal Justice Civil Court Judgment

*** ATTENTION- This Blog Post Applies to NON-Eviction Cases ***

Click HERE to Read About Appealing EVICTION Cases

Appealing an Arizona Justice Court Ruling

A party may appeal a judgment entered in an Arizona Justice Court civil case. FYI, these rules do not apply to eviction cases, but traditional lawsuits filed in the Justice Court. There are two separate stages to appeal a Justice Court ruling. The first stage begins in the Justice Court; the second stage takes place in the Superior Court. The party filing an appeal is the Appellant and the opposing party is the Appellee.

Stage 1 of an Appeal: the Justice Court

The Notice of Appeal

The first step to appeal the judgment a Notice of Appeal must be filed in the Justice Court within 14 calendar days from the date of the judgment. If you do not file this Notice of Appeal within the 14 calendar days then you lose the right to appeal. The time to file this Notice of Appeal cannot be extended so do not miss the deadline! Currently (Jan. 2021) the Notice of Appeal fee is $84.

Appeal Fees

On or before the deadline to appeal, you must pay an appeal fee. The fee includes the cost of creating a copy of the audio recording of the proceedings and the transmittal of this recording to the Superior Court.

The Court Record

The Justice Court record is made by CD or video. The Arizona Justice Court will notify us when a copy of the audio recording is ready to be picked up. The record is usually available within 10 days of filing the Notice of Appeal. If the audio record is more than 90 minutes in length, it will be necessary for the Justice Court to pay a court reporter to prepare a transcript of the proceedings within the deadline to appeal. The transcript must be filed with the Justice Court at the same time we file our memorandum.

Designate the Record

Within the time to appeal you must designate the record with the trial court by filing a formal list of the items you want to include in the record on appeal.

The Cost Bond

On or before the deadline to appeal you must pay a cost Bond. Currently, (Jan. 2021) the cost bond is set at $250. The purpose of this bond is to cover Arizona Just Court costs incurred by the Appellee for defending the appeal.

Supersedeas Bond(s)

The purpose of a supersedeas bond is to prevent enforcement of the Judgment by the Plaintiff. The two supersedeas bonds have separate purposes. One will stay collection actions on the amount of the Judgment awarded, i.e., garnishment proceedings.

The amount of the supersedeas bond is the total amount of the Judgment ordered by the court, including court costs, attorneys’ fees, damages, etc. The purpose of this bond is to postpone collection proceedings on the money judgment awarded. For example, levying a bank account or garnishing wages. The stay becomes effective when the bond is paid.  

You may still exercise your right to appeal without posting a supersedeas bond. But you must post one or both supersedeas bond to prevent enforcement of the Judgment.

The Appeal Memorandum

The Appellant’s memorandum is a written explanation of why the Arizona Justice Court’s ruling was legally wrong. This memorandum should refer to specific portions of the record of the trial to point out where the Justice Court errored. The memorandum should be typed or printed on letter-sized white paper, double-spaced, and not to exceed 15 pages in length. In addition, you may also attach exhibits from your hearing to the memorandum. The original memorandum is filed with the Justice Court and one copy of the memorandum is mailed to every party in the case. Once the memorandum has been filed, the Justice Court must wait for further instructions from the Arizona Superior Court. See Stage 2 of the appeal of judgment.

Stage 2 of an Appeal: the Superior Court

Paying the Superior Court filing Fee

Once all of the steps from the Justice Court Appeal’s First Stage have been completed the case moves to the Superior Court. About 60 days after the memorandum has been filed you will receive a notice from the Superior Court instructing you to pay the Superior Court filing fee.

Superior Court Action on the Appeal

Once all of these steps have been completed, a ruling will be issued from the Superior Court. The Arizona Superior Court has the right to affirm the Justice Court, overrule the Justice Court, modify some of the Justice Court’s decision, or, if the record is not clear, order a new trial in the Justice Court. If the final outcome of the case is that the ruling stands, or if the appeal is dismissed for any reason, the court may use any bond, deposit or payments made to satisfy the obligation under the original judgment.

*** ATTENTION- This Post Only Discusses Appealing NON-Eviction Cases ***

Click HERE to Read About Appealing Arizona EVICTION Cases.

If you need help from an Arizona real estate 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.

Evicted Tenants’ Belongings

Often, Arizona tenants will leave personal property on the premises after they have been evicted. As a landlord you cannot simply keep or throw away the former tenant’s belongings. The Arizona Landlord-Tenant Act requires the landlord to you maintain their possessions for at least 14 days.

Per A.R.S. § 33-1368(E) a landlord, must hold the evicted tenant’s possessions for a minimum of 14 days from the day the Writ of Restitution was executed (day the constable removed the tenants) issued. 

As A landlord, you may

  • Keep the tenant’s belongings that the rental property for the 14 days,
  • Move the tenant’s belongings to an off-site storage facility,
  • Require the tenant to reimburse you for the actual cost of moving and storing their belongings during the 14-day period,
  • Prohibit the tenants from ever returning to the property without your explicit permission.

As a landlord you may NOT

  • Arizona landlords cannot require their former tenant pay for eviction judgment prior to releasing the belongings to them. Meaning you cannot require a tenant pay you for all back rent, late fees, attorneys’ fees, and court costs prior to returning their belongings. Again, an Arizona landlord may only demand payment for the actual cost of storing and moving the tenants’ belongings.
  • Dispose of the tenant’s property prior to the expiration of the 14 days.  

catalogue the tenants’ belongings

You should itemize everything left behind by the tenants. If you do choose to remove the tenant’s belongings from the rental property, use considerable care, you will be responsible for any damage to their belongings. It is a good idea to photograph (take 100 – 200 pictures), and/or video the rental property so that you have an inventory of what was left behind. This will also give you the opportunity to catalog any damage to the rental unit itself. Take the inventory prior to moving any of the personal property from the rental unit.

After the 14-day period, if there has been no contact from the evicted party, and they have not claimed, or made and agreement to claim their property, an Arizona landlord may sell the items or dispose of the items that were left behind.

If you need help from an Arizona eviction attorney, then contact the Dunaway Law Group at 480-702-1608 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. The Dunaway Law Group limits its practice to the State of Arizona.

Judgments and Credit Reports

power of judgments

Eviction judgments can be a powerful tool that dramatically increases the odds of a creditor collecting on the debt. A typical judgment will order the debtor to pay the amount awarded to the creditor, attorneys’ fees, court costs, and interest until paid in full. The Justice court jurisdictional limit is $10,000 (see A.R.S. 22-201), plus court costs (see Rule 139(d)) and attorneys’ fees (see Rule 139(d)).

After making a written demand for the awarded damages most people will not voluntarily pay. However, this is where the judgment itself can help an Arizona creditor recover their money.

A judgment can give creditors the power to garnish wages, levy bank accounts, or place liens on certain assets. Without the judgment all a creditor can do is beg for the money.

arizona evictions and credit reports

When a landlord obtains a judgment against someone, many people think it automatically go on their “record”, or credit report, but this isn’t always the case. The eviction judgment is a matter of public record, but the only way to guarantee that a judgment will show up on a credit report is to record the judgment with the relevant Arizona county. The eviction judgment will stay recorded until the debt is paid, it expires, or the debtor files bankruptcy.

In Arizona, most residential evictions occur in a Justice Court. In order to record the judgment with the county, a certified copy of the judgment must be sent to the Arizona Superior Court to receive a new case number. Once a Superior Court judgment has been established a certified copy can be recorded with the appropriate county. Each of these steps requires a filing fee–as of 2022–the total fees are just over $130.

A judgment will remain on the credit report until it is paid, or for as long as the judgment is valid. In Arizona, judgments are automatically valid for 10 years but can be renewed for another 10 years and another 10 years, etc. If the debt is paid in full, then the creditor must file a satisfaction of judgment with the county to demonstrate that the debt has been paid in full.

In summary, here are the main things to know when recording a judgment with the proper Arizona county.

  • The only way to ensure a judgment shows up on a credit report is to record it with the appropriate county recorder’s office.
  • If the judgment is paid in full, then the creditor MUST file a satisfaction of judgment with the court and then with the county recorder.
  • If not paid, the judgment will remain valid for 10 years, and an additional 10 years if it is renewed.

It is a common misconception that judgments automatically appear on a debtor’s credit report. However, this is not always the case. The judgment is a public record, and a diligent background checker will find it, but the only way to ensure the judgment appears on someone’s credit report is to record it with the county. Once this happens, it will appear on their credit report as a monetary judgment.

Ideally, a background check will reveal the eviction judgment even without it being recorded with the county. If you are a landlord, you should always perform background checks on prospective tenants.

However, for more everyday occurrences that don’t require a full-blown background check (like applying for a credit card or loan), having a blighted credit report can make life difficult.

satisfaction of judgment

Once a judgment debtor has satisfied a judgment, it is the creditor’s responsibility to file a satisfaction of judgment with with the relevant court. This will notify all interested parties that the debt has been paid in full. 

If you need help from an Arizona real estate attorney, 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.

Adding Rent and Damages to a Judgment

What options are available to Arizona landlords if they find new damage to their rental property after the tenants have been evicted? Rule 13(c)(2)(A) of the Eviction Action Rules of Procedures states that: “…if the plaintiff is entitled to rent incurred after the judgment has been entered, then the plaintiff may seek that amount in a separate civil action.”

Rule 13(c)(2)(E) of the Eviction Action Rules of Procedures indicates that damages can only be awarded if they were “…properly pled in the complaint and when such damages resulted from the breach giving rise to the eviction.”

filing civil lawsuit against former tenant

Rent or damages sought post-eviction judgment must be sought in a separate civil suit, rather than an eviction action. While an eviction judgment can be obtained in just a couple of weeks, a civil judgment takes much longer to get – usually several months.

However, if the damage to your property is extensive, and you believe you have a good chance of recovering the money from your tenant, then it can be worth the time and money it takes to pursue.

An Arizona landlord may sue a former tenant for damage to the property while they were living there. Cost of repairs that are above the normal wear and tear of tenants is recoverable. The security deposit is held in reserve to help off-set the cost of rehabilitating the property for new renters. However, after subtracting the deposit from the cost to rehab the property a landlord may decide to sue the former tenants for the full extent of damages sustained. 

This highlights the importance of performing a thorough walk-through each time a tenant moves in or out of the property. Take very detailed notes, videos, and pictures of the property and note any damage. Give the tenants a copy of these records. Keep very detailed records of the cost to make the repairs. We must be able to prove to the court exactly how much it cost to repair the significant damage caused by a former tenant.

However, even if the tenant has vacated the property there is still an available remedy to try and seek a judgment against your former tenant. In this situation you may sue the former tenant under a breach of contract. The theory behind this is, a lawsuit existed (the lease agreement) and the contract was broken.

Unlike an eviction lawsuit, a civil lawsuit is very slow moving and the attorneys’ fees are much more expensive. Depending on many factors; whether the tenants counter-sue, hire legal counsel, are difficult to serve, and an extensive amount of discovery is required the typical case can range between 5 to 12 months! Much longer than the average 14 – 21 days required for a residential eviction.

does it make sense to file a new lawsuit?

In 99% of the instances, it does not make economic sense sue your former tenant through a breach of contract with a civil lawsuit. It’s just not worth the time, expense, and hassle of trying to get a judgment against them. Lastly, don’t forget, just because you actually obtain a judgment against your former tenant doesn’t mean that you’ll be able to collect on it. Often the judgment isn’t worth the paper it’s printed on.

If you need help from an Arizona real estate attorney, 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 Arizona.