Notice Under the Uniform Enforcement of Foreign Judgments Act

Blog Image - US Mail (00086510xD2F01)What is notice? When it comes to domesticating foreign judgments in Arizona, “notice” is governed by the Uniform Enforcement of Foreign Judgments Act (the “Act”). The Act simply requires that notice of the lodging of a foreign judgment must be sent to the judgment debtor’s last known post office address. A.R.S. § 12-1703(A) and (B). Actual notice is not required. The post-judgment notice requirements are not the same as the due process protections set in statutes when a case is filed.

The Arizona Court of Appeals addressed the issue of sufficiency of notice in Douglas N. Higgins v. Songer, 171 Ariz. 8 (App. 1991). The Judgment Creditor’s attorney mailed the statutory notices to the last known address of the Judgment Debtor. Those mailings were returned “undeliverable as addressed.” The Judgment Creditor’s attorney then performed additional research and mailed a letter to the Judgment Debtor advising him of the sister-state judgment, not the domesticated judgment. The Judgment Debtor received the letter.

The Judgment Debtor filed a motion to dismiss, and the Judgment Creditor then mailed the statutory notice to the correct address. The trial court took the bait, and dismissed the domestication. The appellate court reversed the trial court, and the domestication stood. The appellate court stated:

      The trial judge apparently assumed that the initial notice of filing the foreign judgment was defective because it did not contain the debtor’s actual post office address, and she apparently believed that the attempts at amendment came too late and that she therefore lacked jurisdiction to do anything but dismiss. The debtor’s argument in support of this conclusion is flawed. A notice of filing a foreign judgment is not a pleading. See Rule 7(a), Arizona Rules of Civil Procedure, and Romo v. Reyes, 26 Ariz.App. 374, 375, 548 P.2d 1186, 1187 (1976). Nor is a motion to dismiss a claim a responsive pleading within the meaning of Rule 15(a), Arizona Rules of Civil Procedure. Graham v. Goodyear Aerospace Corp., 120 Ariz. 272, 273, 585 P.2d 881, 882 (1978). Accordingly, even if the original documents were defective, we can see no reason why the amended notice of filing foreign judgment, amended affidavit, and amended proof of mailing should have been stricken. Given that conclusion, at the very least, the Michigan judgment was properly domesticated as of the time that the amended affidavit and notices were filed. The trial judge had jurisdiction of the matter and was under no compulsion to grant, and indeed should not have granted, the motion to dismiss. We turn to the more basic question whether the initial notice of filing was defective.

The court held the first notice satisfied the statute because the creditor mailed the papers to the residential address it obtained from the Judgment Debtor’s former spouse. The court reasoned as follows:

      The parties have not cited, and we have not found, any case that deals with whether a creditor is required to exercise due diligence in discovering the debtor’s last known post office address or whether a creditor, in the absence of information to the contrary, may presume that mail addressed to a residence will be delivered. In our opinion, given that constitutional considerations require no notice of post-judgment proceedings, we believe that the judgment creditor in this case satisfied the demands of the statute.

The court decided that basic due process was satisfied when notice and an opportunity to defend the action was afforded in the sister state. The domestication of the foreign judgment is a post-judgment proceeding and a prelude to execution on the judgment, for which no personal notice is required. The Court concluded that the constitution requires little in regard to post-judgment notice, and that the legislature did require a judgment creditor to do any more than notify the debtor at their address where they get mail, either a residence or post office box, that the sister-state judgment was being domesticated in Arizona.

For debtors, the lessons from this case are: (1) keep your address up to date if you want to get notices, and (2) when you get notices, they are important; don’t stick your head in the sand. For creditors, improper notice is one of many issues that can arise when domesticating a judgment in Arizona. Be sure to hire an experienced attorney to assist you.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

Domesticating a Foreign Judgment Based on a Guaranty

Lega-lDocumentWhen a judgment creditor obtains a judgment in another state against a married person, the judgment can be domesticated in Arizona, and if executed correctly, the domesticated judgment can enforced in Arizona against both spouses. One of the issues that can arise in Arizona judgment domestications occurs when the judgment was based on a guaranty that was only signed by one spouse.

Arizona is a community property state. In Arizona, either spouse may contract debts or otherwise act for the benefit of the community, and the debt created by the spouse is going to be both an individual debt for the spouse that incurred it, and a community debt. When the debt is deemed a community debt, community assets can be attached by the creditor to satisfy the debt.

However, if the debt is a separate debt of the spouse incurring the debt, then community property cannot be used to satisfy the debt. Judgment creditors who want to domesticate a foreign judgment in Arizona need to know the nature of the judgment to determine if the debt is a separate debt or a community debt.

A.R.S. § 25-214(C)(2) states that when the instrument is a guaranty, the community will be bound only upon the signature of both spouses. So if only one spouse signs the guaranty, then the spouse signing the guaranty is liable to repay the obligation, but, the community is not bound to repay the debt. This law differs from most states, which do not require both spouses to sign a guaranty. So what if the guaranty was signed outside of Arizona, before the couple moved to Arizona, and a judgment was entered in another state? If both spouses did not sign the guaranty, and the judgment is domesticated in Arizona, then there will not be community liability.

The Arizona Court of Appeals has analyzed whether A.R.S. § 25-214(C)(2) is procedural or substantive in nature. The Appellate Court determined the legislature clearly intended that A.R.S. § 25-214(C)(2) protects the substantive rights of the non-signing spouse. The substantive law creates and defines rights that bars collection of the guaranteed debt from community property when only one spouse signs the guaranty. Under Arizona law, the community is liable for what would have been a community obligation had it been incurred in Arizona. So, it is critical to analyze the nature of the debt to determine if it can be enforced in Arizona against community property. A.R.S. § 25-214(C)(2) states both spouses must execute a guaranty to bind the marital community.

Even if the judgment is only enforceable against one spouse’s separate property, it often makes sense to domesticate the judgment in Arizona. Experienced judgment domestication attorneys will be familiar with this common trap, and will know what steps to take to give you the best chance at collection. If you need a judgment domesticated in Arizona, or are facing a creditor domesticating a foreign judgment against you, you should hire a knowledgeable attorney with experience dealing with these issues.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

Arizona: Separate and Community Property; Separate and Community Liability

Estate planningIn Arizona, when an individual signs a contract, that person becomes personally liable to perform the obligations created by the contract. There are many different types of contracts, for example, retail installment contracts, personal guarantees, leases, or credit agreements, just to name a few. A breach of the contract may in all likelihood result in a lawsuit.

There are different factors that should go into filing a lawsuit, and defending a lawsuit. One of the practical factors is, if successful, will the creditor collect the damages arising from the breach of the contract? Additional factors include: was the person married at the time the contract was signed, and what type of contract was signed. The equation gets a bit more complicated if the person was married when the contract was signed and is now divorced, or if the contract was signed outside of Arizona. For single persons who sign the contact in Arizona, the answer to the question is easy; all non-exempt assets of the debtor are available for repayment.

For married couples, it is important to recognize that Arizona is a community property state. In Arizona a spouse can hold both separate property and community property. There is a presumption that the marital community is liable for the obligations incurred by each spouse during the marriage. When both spouses sign the contract, the law gets clearer. However, if only one spouse signs the contract, there are exceptions to the general rule that the community property is liable.

Arizona Revised Statute § 25-215 defines when community property or separate property can be used to satisfy community and separate property debts. A.R.S. § 25-215(A) states: Separate property of a spouse shall not be liable for the separate debts or obligations of the other spouse, absent agreement of the property owner to the contrary.

A.R.S. § 25-215(B) states: The community property is liable for the premarital separate debts or other liabilities of a spouse, incurred after September 1, 1973, but only to the extent of the value of that spouse’s contribution to the community property which would have been such spouse’s separate property if single.

A.R.S. § 25-215(C) states: The community property is liable for a spouse’s debts incurred outside of this state during the marriage which would have been community debts if incurred in this state.

A.R.S. § 25-215(D) states: Except as prohibited in section 25-214, either spouse may contract debts and otherwise act for the benefit of the community. In an action on such a debt or obligation the spouses shall be sued jointly and the debt or obligation shall be satisfied: first, from the community property, and second, from the separate property of the spouse contracting the debt or obligation.

The law appears to be fairly straightforward. There are issues that must be analyzed whether you are a creditor or a debtor. For example, if only one spouse guarantees a debt incurred during the marriage in Arizona, the creditor’s enforcement rights are limited. It may be the creditor is entitled to get a judgment, but that judgment is only enforceable against the separate property of the spouse that guaranteed the debt.

If the debtor has no separate property assets, the creditor will have to wait until such time separate property assets are available. When will separate property assets be available? Separate property assets may never be available. Or separate property assets may become available upon the death of one of the spouses, or, upon the dissolution of the marriage. The message should be clear. There is an art to litigation, hire an experienced attorney whether you are a creditor or a debtor.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

Fraudulent Transfers: Looking Back Before the Debt

Patent1In an earlier post, Fraudulent Transfers and Creditors’ Rights to Collect, we discussed collection against an insolvent debtor. But what about a savvy future debtor who takes action to make sure a future debt cannot be collected?

If an Arizona creditor is already owed money, it is not necessary to show fraudulent intent to prove fraudulent transfer. However, a creditor is also entitled to a finding of fraudulent transfer for a transfer that occurred before the debt, if the transfer was made “with actual intent to hinder, delay or defraud any creditor of the debtor.”

There are several factors that may be considered to determine actual intent, including:

1. The transfer or obligation was to an insider.
2. The debtor retained possession or control of the property transferred after the transfer.
3. The transfer or obligation was disclosed or concealed.
4. Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit.
5. The transfer was of substantially all of the debtor’s assets.
6. The debtor absconded.
7. The debtor removed or concealed assets.
8. The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred.
9. The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred.
10. The transfer occurred shortly before or shortly after a substantial debt was incurred.
11. The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

These factors, known as “badges of fraud,” can be used to prove your debtor took steps before the debt to make sure you wouldn’t collect. If you encounter any of these red flags when attempting to collect, an experienced attorney can help you recover your debt despite a debtor’s careful planning.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

529 College Savings Accounts: Who Owns the Money?

post1“But it’s my kids’ money!”  This refrain may be common, but it’s not necessarily accurate when it comes to a debtor talking about money in a 529 College Savings Account.  When the accounts are held “FBO” a child, courts are likely to find that money belongs to the debtor, not the child.

For example, in the case of Addison v. Seaver, the debtor claimed $22,000 in 529 accounts was owned by his children, not his bankruptcy estate. The bankruptcy trustee objected, and the bankruptcy court found that the 529 Accounts were property of the debtor’s bankruptcy estate. The Bankruptcy Appellate Court affirmed the ruling. The issue was then appealed to the United States Court of Appeals, where the debtor argued “that because he established the accounts for the benefit of his children, he had no legal or equitable interest in the accounts.”

The Court of Appeals reviewed Federal law regarding Section 529 Accounts, and found that the debtor was still listed as the owner of the account, and that his children were merely beneficiaries. The Court found that the owner is able to change the beneficiaries or request distributions from the account (subject to tax penalties) and, therefore, the funds remain the property of the owner of the account.

Amendments to the Bankruptcy Code provided exclusions for 529 Accounts, under certain circumstances, which restrict the inclusion of those funds as part of a bankruptcy estate. However, for the purposes of judgment collection, 529 Accounts are likely to be found to be property of the debtor. Dependent upon state-law exemptions, a creditor may be able to recover money held in 529 College Savings Accounts. An experienced attorney can help you discover if your debtor is holding funds in a 529 Account, and help you collect what you are owed.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.