Published On: July 16, 2021
Arizona Residential Eviction Actions Procedures – effective July 15, 2021
IT IS ORDERED that the following procedures are applicable to eviction actions governed by Arizona Revised Statutes, Title 33, filed in the superior court or a justice court, and delayed by the moratoria, including the mortgage forbearance eviction moratorium currently in effect, or seeking judgment for unpaid rent accrued during an eviction moratorium.
IT IS FURTHER ORDERED beginning on the effective date of this Order, all other eviction cases shall be processed solely under Arizona statutes and rules, except as provided herein.
1. The plaintiff in a residential eviction action for non-payment of rent while an eviction moratorium was or is in effect must attest in the initial pleading or by other writing filed with the court and served on the defendant along with the initial pleading whether:
a. The claim is for any time between March 27, 2020 and July 24, 2020 and, if so, whether the property in which the defendant resided was covered under the CARES Act, during which time fees, penalties, or interest on unpaid rent may not be included in the amount claimed.
b. The rental is in a building with five or more units that had or has a mortgage backed by Fannie Mae or Freddie Mac (FHFA), the Federal Housing Administration (FHA), the U.S. Department of Agriculture (USDA), or the Veterans
Administration (VA) for which the borrower was or is receiving mortgage forbearance relief.
c. The plaintiff has applied for or has received rental assistance from any source based on defendant’s rental obligation. If so, plaintiff must state in the pleading and the accounting of payments the amount received and how it has been applied toward the obligation and whether the plaintiff entered into any agreement releasing plaintiff’s claims against the defendant. The plaintiff must further attest to compliance with any agreement concerning the receipt of rental assistance to pay the defendant’s rental obligation, and that plaintiff is not seeking a judgment for a claim that was waived.
d. During an eviction moratorium, the plaintiff obtained a prior judgment against the defendant that has not been vacated. If so, the plaintiff must attest that the current amounts claimed exclude amounts awarded in the prior judgment.
II. CALENDARING FOR ALL CASES
1. A court should not schedule more than 25 eviction cases in an hour on the court’s calendar and shall allocate sufficient time for all parties appearing remotely or in person to present their evidence.
2. Each case shall be scheduled to be heard during a specific one-hour time slot, e.g., 9:00 A.M. – 10:00 A.M.
3. Courts should schedule any residential eviction action filed after the expiration of the CDC order within the time frames established by the Rules of Procedure for Eviction Actions and by applicable Arizona statutes, except, if necessary to manage court congestion, a court should follow the procedures established in Administrative Order No. 2021-109. Any continuance granted while the CDC order was in effect shall be honored and time shall be excluded.
4. When the limited availability of courthouse facilities, judicial officers, or court employees require prioritization, court proceedings shall be scheduled in the following order of priority: 1) eviction cases delayed by a moratorium; 2) newly filed eviction cases.
1. Parties, attorneys, and witnesses in an eviction proceeding shall be permitted to participate remotely or in person.
2. At each hearing, the judge shall inquire as to whether the plaintiff entered into any agreement concerning the receipt of rental assistance to pay the defendant’s rental obligation or concerning forbearance relief described in section I, paragraph 1b of this Order. If all amounts awarded in a judgment have been paid in full by receipt of rental assistance or the plaintiff agreed to release defendant from all claims and causes of action, including judgments, writs, and other judicial relief for nonpayment of rent, the court shall vacate the judgment and deny an application for a writ of restitution. If the plaintiff received rental assistance payment and asserts that the rental agreement did not require waiver of all claims, the plaintiff shall provide the court with a copy of the rental assistance agreement. If the plaintiff agreed to delay eviction as a condition of a rental assistance or mortgage forbearance agreement, the court shall stay the action during the period of the delay.
3. With the agreement of the parties, the judge shall continue a proceeding to afford the parties the opportunity to apply for and receive rental assistance or to reach an agreement to resolve the case.
IV. PROCEDURES FOR RESTARTING EVICTION CASES DELAYED DUE TO FEDERAL AND STATE MORATORIA
1. In all cases where a plaintiff filed a complaint but was unable to obtain a judgment due to an eviction moratorium, the Court shall schedule a hearing. The plaintiff shall file a written motion to amend the complaint, as needed, to update the information required by section I paragraph 1 of this Order.
2. No later than 90 days after the entry of this Order, a plaintiff who received a judgment where the writ of restitution date was delayed may file a motion to amend the judgment to collect any additional rental obligations accrued since the judgment was obtained. Also within this time, a plaintiff may file a new application for a writ of restitution to regain possession in which the plaintiff must attest that a new tenancy has not been established.
3. Motions to amend the judgment and applications for writs shall include or update any information required by section I paragraph 1 of this Order that was not provided in the original complaint. If a plaintiff received rental assistance, the plaintiff must file a motion to amend the judgment and an accounting of any payments received since the judgment was entered. The plaintiff shall serve the motion or application on the defendant either personally or by posting the notice on the main entrance to the premises.
4. The court shall set a hearing on all motions for amended judgment. The court shall set a hearing on an application for a writ if it appears to the court that a new tenancy may have been established, that the judgment should be amended, or if the court finds that a hearing is appropriate based upon the court’s own motion or a motion of a party. The court shall issue a notice of hearing for the parties to appear not more than six nor less than three days from the date of the notice. At least three days before the hearing, the court shall mail a copy of the notice to the defendant and attempt to contact the defendant by telephone, text, or email to provide notice of the hearing, and the plaintiff shall serve a notice of the date, time, place and purpose of the hearing on the defendant either personally or by posting the notice on the main entrance to the premises. A defendant may respond in writing before the hearing and orally at the hearing.
5. No later than 90 days after the entry of this Order, for cases where a judgment was entered for rent owed during a moratorium, the amount owed was fully paid through a rental assistance agreement, and that judgment has not already been amended or vacated as permitted by this Order, a defendant may file a motion to compel satisfaction of judgment. The defendant may file the motion to compel without showing the plaintiff cannot be located, as described in Rule 4(d), Rules of Procedure for Eviction Procedures. The motion shall be served on the plaintiff. The court may, after an opportunity for a hearing, order that the judgment shall be deemed satisfied.
6. If an eviction judgment includes claims for rent due between March 27, 2020 and July 24, 2020 or if fees, penalties, or interest for unpaid rent during that period were awarded, the plaintiff shall provide proof that the property is not subject to a mortgage, or provide the written response from a Qualified Written Request (QWR) submitted to the property’s mortgage holder that confirms the financing in place was not covered by the CARES Act.
7. At the hearing on the motion to amend the judgment, for good cause, the court shall amend the eviction judgment to reflect:
a) Any unpaid rent, late fees, or interest that would have been due under the terms of the lease that was the subject of the eviction for the period since the judgment was entered if requested by the plaintiff and not to exceed the jurisdiction of the court.
b) Any rental assistance received from any source based on the defendant’s rental obligation.
c) Any fees, penalties or interest for unpaid rent from March 27, 2020 through July 24, 2020 not permitted to be collected under the CARES Act.
d) Any fees, penalties or interest for unpaid rent for any period of time the plaintiff was in a federal mortgage forbearance relief program which prohibited those assessments.
Nothing in this provision precludes a landlord from pursuing a claim not barred by a rental assistance agreement in a small claim or civil lawsuit.
8. The order issuing a writ may be executed by the constable or sheriff no earlier than five calendar days after the date of the order. The order shall state the earliest date on which execution may occur.
MUSINGS BY DIANE:
COVID has made the last 14 months a very tough time for everyone, but especially those who are facing eviction. The sad truth is that hundreds of thousands of federal and state dollars go unused by tenants and their landlords. Agencies are doing their best to reach out to anyone who needs help. One such organization is the Arizona Foundation for Legal Services & Education. See www.AZLawHelp.org for information, including their Legal Hotline: 866-611-6022.
This site is not just for COVID-19 information. They offer court forms and information about representing yourself in court. Lots of questions and answers. Even a program for “Savvy Seniors”. There are links to housing organizations, Women’s Fresh Start Center, the Bankruptcy Court Self-Help Center, and much more.
Please check out the resources before you give up and assume there is no help.
– Diane L. Drain
About the Author: Diane Drain
Diane is a well respected Arizona bankruptcy and foreclosure attorney. As a retired law professor, she believes in offering everyone, not just her clients, advice about bankruptcy and Arizona foreclosure laws. Diane is also a mentor to hundreds of Arizona attorneys.
*Important Note from Diane: Everything on this web site is offered for educational purposes only and not intended to provide legal advice, nor create an attorney client relationship between you, me, or the author of any article. Information in this web site should not be used as a substitute for competent legal advice from an attorney familiar with your personal circumstances and licensed to practice law in your state. Make sure to check out their reviews.*
“You folks are the BEST OF THE BEST in Arizona.” M.H.
You and Jay are the best attorneys I have ever had or needed and thank God for the Honorable Robert Gottsfield in recommending you folks – I would have never made it through the entire process without you and Jay and God Bless you both always and stay in touch as well. You folks are the BEST OF THE BEST in Arizona.
“My only regret is that I didn’t find Diane sooner.” K.H.
I can’t say enough good things about Diane. The way she handled my not typical circumstances was amazing. I was very nervous to start the bankruptcy process but Diane just has a very comforting way of explaining the whole process. My only regret is that I didn’t find Diane sooner. If you find yourself in a financial situation that you can’t correct on your own, please Call Diane Drain as soon as possible.
“Filing for bankruptcy can be a stressful life event” R.A.
Filing for bankruptcy can be a stressful life event, and selecting the right attorney can add to this stress. Diane and Jay were a pleasure to work with, and it is obvious that they are passionate about helping people get their life back on track. I would highly recommend them if you need a bankruptcy attorney.
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