6-991.11. Statute of limitations; service of summons; application for payment; insufficient monies; definition
A. An action for a judgment that subsequently results in an order for payment from the mortgage recovery fund shall be started not later than five years after the accrual of the cause of action.
B. If an aggrieved person commences an action for a judgment that may result in an order for payment from the mortgage recovery fund and the defendant licensee cannot be served process personally in this state, the summons may be served by the alternative methods of service provided for by the Arizona rules of civil procedure, including service by publication. A judgment that complies with this section and that was obtained after service by publication only applies to and is enforceable against the mortgage recovery fund. The department may intervene in and defend any such action.
C. An aggrieved person may apply to the department for payment from the mortgage recovery fund after the aggrieved person obtains a judgment against a loan originator based on the licensee's act, representation, transaction or conduct in violation of this title or the rules adopted pursuant to this title. The claimant must file the original application, including appendices, within two years after the termination of all proceedings, reviews and appeals connected with the judgment. The deputy director, in the deputy director's sole discretion, may waive the two-year application deadline if the deputy director determines that the waiver best serves the public interest. Delivery of the application must be by personal service or by certified mail, return receipt requested.
D. The application must be within the limitations prescribed in section 6-991.09 and for the amount that is unpaid on the judgment and that represents the claimant's actual and direct loss on the transaction.
E. The department shall prescribe and supply an application form that includes detailed instructions with respect to documentary evidence, pleadings, court rulings, the products of discovery in the underlying litigation and notice requirements to the judgment debtor under section 6-991.12. The claimant must submit the claim on an application form supplied by the department. The application must include:
1. The claimant's name and address.
2. If the claimant is represented by an attorney, the attorney's name, business address and telephone number.
3. The judgment debtor's name and address or, if unknown, the names and addresses of persons who may know the judgment debtor's present location.
4. A detailed narrative statement of the facts explaining the allegations of the complaint on which the underlying judgment is based, with a copy of the contracts, receipts and other documents from the transaction, the last amended complaint, all existing recorded judgments, documentation of actual and direct out-of-pocket losses and any offsetting payment received and all collection efforts attempted.
5. The identification of the judgment, the amount of the claim and an explanation of its computation, including an itemized list of actual and compensatory damages awarded and claimed.
6. For the purpose of an application that is not based on a criminal restitution order, a statement by the claimant, signed under penalty of perjury, that the complaint on which the underlying judgment is based was prosecuted conscientiously and in good faith. For the purposes of this paragraph, " conscientiously and in good faith" means that all of the following apply:
(a) No party who was potentially liable to the claimant in the underlying transaction was intentionally and without good cause omitted from the complaint.
(b) No party named in the complaint who otherwise reasonably appeared capable of responding in damages was intentionally and without good cause dismissed from the complaint.
(c) The claimant employed no other procedural means contrary to the diligent prosecution of the complaint in order to seek to qualify for the recovery fund.
7. For the purpose of an application that is based on a criminal restitution order, all of the following statements by the claimant, signed under penalty of perjury:
(a) The claimant has not intentionally and without good cause failed to pursue any person potentially liable to the claimant in the underlying transaction other than a defendant who is the subject of a criminal restitution order.
(b) The claimant has not intentionally and without good cause failed to pursue in a civil action for damages all persons who are potentially liable to the claimant in the underlying transaction and who otherwise reasonably appeared capable of responding in damages other than a defendant who is the subject of a criminal restitution order.
(c) The claimant employed no other procedural means contrary to the diligent prosecution of the complaint in order to seek to qualify for the mortgage recovery fund.
8. The following statements, signed under penalty of perjury, and information from the claimant:
(a) The claimant is not a spouse of the judgment debtor or a personal representative of the spouse.
(b) The claimant has complied with all of the requirements of this article.
(c) The judgment underlying the claim meets the requirements of this article.
(d) The claimant has recorded a certified copy of the superior court judgment or transcript of judgment pursuant to sections 33-961 and 33-962 in the county in which the judgment was obtained and in the county in which all judgment debtors reside and has provided a copy of the recorded judgment to the deputy director.
(e) The claimant has caused the judgment debtor to make discovery under oath, pursuant to section 12-1631, concerning the debtor's property.
(f) The claimant has caused a writ of execution to be issued on the judgment and the officer executing the writ has made a return showing that either:
(i) No personal or real property of the judgment debtor liable to be levied on in satisfaction of the judgment could be found, sold or applied.
(ii) The amount realized on the sale of the property, or as much of the property that was found, under the execution was insufficient to satisfy the judgment.
(g) The claimant has caused a writ of garnishment to be issued to each known employer of the judgment debtor ascertained by the claimant, that each garnishee defendant has complied with the respective writ and any judgment or order resulting from the writ and that the amount realized from all judgments against the garnishee defendants was insufficient to satisfy the balance due on the judgment.
(h) The claimant has deducted the following amounts from the actual or compensatory damages awarded by the court:
(i) Any amount recovered or anticipated from the judgment debtor or debtors.
(ii) Any amount recovered through collection efforts undertaken pursuant to subdivisions (d) through (g) of this paragraph and including an itemized valuation of the assets discovered and amounts applied.
(iii) Any amount recovered or anticipated from bonding, insurance or title companies, including recovery of punitive damages.
(iv) Any amount recovered or anticipated from in court or out of court settlements.
(v) Any amount of tax benefits accrued or taken as deductions on federal, state or local income tax returns.
F. If the claim is based on a judgment against a loan originator and the claimant has not obtained a judgment against the loan originator's employing mortgage broker, mortgage banker or consumer lender if any, or has not diligently pursued the assets of the employing mortgage broker, mortgage banker or consumer lender the department shall deny the claim for failure to diligently pursue the assets of all other persons liable to the claimant in the transaction unless the claimant demonstrates, by clear and convincing evidence, that either:
1. The loan originator was not employed by a mortgage broker, mortgage banker or consumer lender at the time of the transaction.
2. The loan originator's employing mortgage broker, mortgage banker or consumer lender would not have been liable to the claimant because the loan originator acted outside the scope of employment in the transaction.
G. The deputy director, at the deputy director's sole discretion, may waive compliance with one or more of the requirements prescribed by subsection E, paragraph 8 or subsection F of this section if the claim is based on an award pursuant to a criminal restitution order or if the deputy director is satisfied that the claimant has taken all reasonable steps to collect the amount of the judgment or the unsatisfied part of the judgment from all judgment debtors but has been unable to collect.
H. If the deputy director finds it is likely that the total remaining liability of the recovery fund is insufficient to pay in full the valid claims of all aggrieved persons who may have claims against any one licensee, the deputy director may petition the court to initiate a proration proceeding. The court shall grant the petition and order a hearing to distribute the total remaining liability of the fund among the applicants in the ratio that their respective claims bear to the aggregate of the valid claims or in another manner that the court deems equitable. The deputy director or any party may file a proposed plan for equitable distribution of the available monies. The distribution of monies shall be among the persons entitled to share them, without regard to the order of priority in which their respective judgments may have been obtained or their respective applications may have been filed. The court may require all applicants and prospective applicants against one licensee to be joined in one action if the respective rights of all the applicants to the recovery fund may be equitably adjudicated and settled. The court shall not include in the claims for proration the claim of any person who has not, within ninety days after the court has entered the order for proration, filed a complaint with the court, served the licensee and provided written notice of the claim to the deputy director. The liability of the fund on any application affected by a proration proceeding is based on the limits in effect on the date when the last application for payment is filed. The court may refuse to consider or award prorated recovery to any person who fails to expeditiously prosecute a claim against the licensee or promptly file an application for payment and submit supporting documentation as required by this article.
I. If, at any time, the money deposited in the mortgage recovery fund is insufficient to satisfy any duly authorized claim or portion of a claim, the deputy director, when sufficient money has been deposited in the mortgage recovery fund, shall satisfy the unpaid claims or portions of claims, in the order that the claims or portions of claims were originally filed, plus accumulated interest at the rate of four percent a year.
J. For the purposes of this section, " complaint" means the facts of the transaction on which the judgment is based.