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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Courts and Civil Proceedings
Chapter : PROVISIONAL REMEDIES
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12-2401 Definitions
In this article, unless the context otherwise requires:
1. "Party" means any plaintiff or defendant in any civil action, in any superior or
justice court of this state.
2. "Property" means any present or future interest in wages, real estate, goods,
chattels or choses in action whether such interest is vested or contingent.
3. "Provisional remedy" means the remedies of attachment, garnishment or replevin,
but shall not include garnishment of wages.
12-2402 Provisional remedies without notice; grounds for issuance
A. Any provisional remedy may be issued by any judge of the superior court or
justice of the peace of this state before judgment and without prior notice to the party
against whom it will operate in any of the following cases:
1. When the party against whom the provisional remedy is sought is about to remove
permanently from the state and has refused to secure the debt, or when such party has
secreted property for the purpose of defrauding creditors, or that such party has
disposed of property, wholly or in part, with intent to defraud creditors, or that such
party is about to dispose of property with intent to defraud creditors.
2. When the moving party is the owner or lessor or otherwise is lawfully entitled
to the possession of the property claimed, has satisfied the requirements of sections
12-1301 and 12-1303, and is seeking a provisional remedy in the nature of replevin,
except that a provisional remedy under this section may not be obtained to enforce a
security interest in consumer goods which is not a purchase money security interest.
3. When any provisional remedy is required to obtain jurisdiction.
B. Before any provisional remedy shall issue, the party seeking such remedy shall
establish with particularity by affidavit to the court's satisfaction sufficient facts
supporting the party's claim and establish that one of the requirements of subsection A
of this section has been met and that such party will file such other pleadings or
affidavits as are required by law as a prerequisite to the issuance of any provisional
remedy sought.
C. When a provisional remedy is issued, the party against whom it will operate may
immediately move to quash such order and the court or justice of the peace shall hear
such motion within five days, exclusive of weekends and holidays. The issues at such
hearing shall be limited to the following:
1. The probable validity of the claim or claims of the party seeking the
provisional remedy and any defenses and claims of personal property exemptions of the
party against whom such provisional remedy will operate.
2. The existence of any statutory requirement for the issuance of any provisional
remedy sought, plus the existence of any grounds in subsection A of this section.
D. The party seeking the provisional remedy shall at the time of the seizure,
attachment or garnishment, or within three days thereafter, exercise reasonable diligence
to serve the party against whom a provisional remedy is sought with notice of the
seizure, the impound or such other act ordered by the court and of said party's right to
an immediate hearing contesting the same.
E. Upon the filing of an application as provided in this section, the justice of
the peace or any clerk of the superior court shall issue a notice directed to any party
against whom any provisional remedy would operate, substantially in the following form:
"Notice
You are hereby notified that your (property) is being taken away from you by
(party seeking provisional remedy) , who says that you owe (such party) a debt of
$ (amount) . (Party seeking provisional remedy) is taking your property because
(such party) says:
(a) That you were about to remove permanently from the state and refused to secure
the debt, or
(b) That you had secreted property for the purpose of defrauding creditors, or
(c) That you had disposed of property, wholly or in part, with intent to defraud
creditors, or were about to dispose of property with intent to defraud creditors, or
(d) That (party seeking provisional remedy) claims the right of possession to your
property under a purchase money security interest.
If you disagree and think you do not owe (party seeking provisional remedy) , or that
you have not done any of the things which (party seeking provisional remedy) said you did
or were about to do, then you can ask a court to hear your side of the story and give
your property back to you. If you want such a hearing, it will be given to you within
five working days after you ask for it. Just check the box at the bottom of this notice
and mail it or take it to the court or division of the court, at the following address:
(address of court or division of the court) . You must also send a copy to (party
seeking provisional remedy) at (address) , so that (party seeking provisional
remedy) knows you want the hearing."
12-2403 Provisional remedies with notice; grounds
Except as provided in section 12-2402, no provisional remedy shall be issued by any
judge or justice of the peace until:
1. All statutory requirements for the issuance of such provisional remedy have been
complied with by the party seeking such remedy.
2. An application and notice for issuance of any provisional remedy has been filed
with the clerk of the court and a copy of such notice and application have been served on
the party against whom any remedy will operate.
3. The party against whom any provisional remedy is sought has been afforded an
opportunity for a hearing or a hearing has been held as provided in this article.
12-2404 Application for provisional remedy with notice
A. A party may at any time after the filing of a civil action make application,
under oath, to the court to issue any provisional remedy allowed by law.
B. Such application shall be filed with the judge, justice of the peace or clerk of
any superior or justice court and shall set forth the factual and legal basis for each
provisional remedy sought.
12-2405 Notice; form of notice
Upon the filing of an application as provided in section 12-2404, the justice of the
peace or clerk of any superior court shall issue a notice directed to any party against
whom any provisional remedy would operate substantially in the following form:
"NOTICE
You are hereby notified that your (property) may be taken away from you by (party
seeking provisional remedy) , who says that you owe (such party) a debt of $ (amount) .
(Party seeking provisional remedy) , your creditor, wants to take your property so that
(such party) can be sure you will pay if the court decides that you owe money to (party
seeking provisional remedy) . If you do not want to have your property taken away, you may
ask for a hearing before a court. You may ask for the hearing anytime in the next ten
days. The hearing will take place within five working days after you ask for it. You
may ask for the hearing by checking the box at the bottom of this notice and filing it
with the court or division of the court, at the following address: (address of court or
division of the court) . You must also send a copy to (party seeking provisional remedy)
at (address) , so that (such party) knows you want the hearing. At the hearing the court
will decide whether the claim against you is probably valid and whether other legal
requirements have been met. If you do not check the box requesting a date for a hearing
and take this notice to the court within ten days, the court will automatically assume
you do not want a hearing and you will lose your right to a hearing. Then (party seeking
provisional remedy) may take your property with the court's permission."
12-2406 Service of notice and application
A. A copy of the notice as set forth in sections 12-2402 and 12-2405 and a copy of
the application for issuance of any provisional remedy shall be served on each party
against whom any remedy will operate in the manner prescribed by law for service of a
summons and complaint.
B. The notice and application shall be served by any sheriff, constable or private
process server and return shall be made as in the case of a summons and complaint.
C. At the time of serving the notice as set forth in sections 12-2402 and 12-2405,
the following notice in English and Spanish shall be served: "Notice! A lawsuit has
been filed against you. In order to protect your rights, please read carefully the other
papers which were served upon you with this notice!"
12-2407 Time to request hearing date; form of request
A. Each party served with a copy of the notice set forth in section 12-2405 and an
application for any provisional remedy may request a date be set for the hearing on such
application by filing with the clerk of the court within ten days after service of the
notice a written request for hearing date. A copy of such request for hearing date shall
be mailed by the clerk to the attorney for or the party seeking the provisional remedy.
B. The request for hearing date shall be in writing, but need not set forth
defensive matter. It shall only indicate that a date for hearing be set and need not be
under oath.
12-2408 Default
A. If no request for hearing date is filed within the time provided by section
12-2407, the party seeking any provisional remedy, or that party's attorney, shall file
an affidavit of default setting forth that service was made, that no request for hearing
date was filed and that the party against whom any provisional remedy is sought is in
default. Such party, or that party's attorney, shall also file a proposed form of the
written order required by section 12-2409, subsections B and C. Upon filing of such
affidavit, the clerk shall enter the default of record and any party so defaulted loses
such party's right to a hearing.
B. If the action is pending in superior court, the clerk upon entry of default
shall immediately deliver the court file to the judge to whom the matter is assigned.
C. If the action is pending in justice court, the clerk shall upon entry of default
immediately deliver the court file to the justice of the peace.
12-2409 Judicial review of application; issuance of provisional remedies
A. The judge or justice of the peace shall within five days, exclusive of weekends
and holidays, after entry of default as provided in section 12-2408, review and examine
all pleadings, affidavits and documents filed in the action to determine the following:
1. That an affidavit has been filed by the person who served a copy of the
application and notice evidencing service.
2. That the affidavit of default required by section 12-2408 has been filed and the
default entered by the clerk.
3. That the claim or claims of the party seeking any provisional remedy are based
on facts stated in the affidavit sufficient to show that such claim or claims are valid.
4. That any statutory requirement for the issuance of any provisional remedy sought
exists.
5. That any other pleadings or affidavits required by law as a prerequisite for the
issuance of any provisional remedy sought have been filed.
B. If the judge or justice of the peace finds that the requirements of subsection A
have been met, the provisional remedy shall be issued.
C. Written findings that the requirements of subsection A have been met shall be
included in the order issuing any provisional remedy.
12-2410 Hearing; procedure; issues
A. Upon filing of a request for hearing pursuant to section 12-2407, the party
seeking any provisional remedy or the court shall cause the matter to be set for hearing.
B. Hearing shall be before a judge or justice of the peace and shall be heard no
later than five days exclusive of weekends or holidays after the filing of a request for
a hearing date, or at a later time with the consent of all parties.
C. Any hearing on an application for any provisional remedy shall be limited to the
following issues:
1. The probable validity of the applicant's claim or claims and any defenses and
claims of personal property exemptions of the party against whom such provisional remedy
will operate.
2. The existence of any statutory requirements for the issuance of any provisional
remedies sought.
D. If after hearing the court finds probable cause to believe the claim of the
applicant is valid and that the statutory requirements for any provisional remedy have
been met, such remedy shall be issued forthwith.
12-2411 Attorney's fees
If a hearing is held pursuant to section 12-2402, subsection C, or section 12-2410
and the provisional remedy ordered issued is quashed or no provisional remedy is ordered
issued the court may award reasonable attorney's fees to the party against whom the
provisional remedy was issued or was sought to be issued.
12-2412 Waiver of right to a hearing void
Notwithstanding any agreement to the contrary, a waiver of the right to a hearing
provided by this article shall be void and unenforceable.
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