Arizona Laws 12-1598.10. Continuing lien on earnings; order
Terms Used In Arizona Laws 12-1598.10
- Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Contract: A legal written agreement that becomes binding when signed.
- Debt scheduling: means counseling and assistance provided to persons by a qualified debt counseling organization if:
(a) The counseling and assistance are manifested by a written agreement. See Arizona Laws 12-1598
- Disposable earnings: means that amount remaining from the gross earnings for a pay period after the deductions required by state and federal law. See Arizona Laws 12-1598
- Earnings: means compensation paid or payable for personal services, whether these payments are called wages, salary, commission, bonus or otherwise. See Arizona Laws 12-1598
- Effective agreement: means an agreement under which no act of termination has occurred. See Arizona Laws 12-1598
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Garnishment: Generally, garnishment is a court proceeding in which a creditor asks a court to order a third party who owes money to the debtor or otherwise holds assets belonging to the debtor to turn over to the creditor any of the debtor
- including: means not limited to and is not a term of exclusion. See Arizona Laws 1-215
- Judgment creditor: means a party who has a money judgment or an order for support of a person that is due and unpaid. See Arizona Laws 12-1598
- Judgment debtor: means a party against whom a money judgment or order for support of a person has been awarded. See Arizona Laws 12-1598
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Lien: A claim against real or personal property in satisfaction of a debt.
- Nonexempt earnings: means those earnings or that portion of earnings which is subject to judicial process including garnishment. See Arizona Laws 12-1598
- Qualified debt counseling organization: means a nonprofit corporation authorized to do business in this state for the purpose of counseling persons with respect to their financial obligations and assisting them in dealing with their creditors. See Arizona Laws 12-1598
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- United States: includes the District of Columbia and the territories. See Arizona Laws 1-215
- Writ: A formal written command, issued from the court, requiring the performance of a specific act.
- Writ: means an order or precept in writing issued in the name of the state or by a court or judicial officer. See Arizona Laws 1-215
(L21, Ch. 306, sec. 8)
A. If it appears from the answer of the garnishee that the judgment debtor was an employee of the garnishee, or that the garnishee otherwise owed earnings to the judgment debtor when the writ was served, or earnings would be owed within sixty days thereafter and there is no timely written objection to the writ or the answer of the garnishee filed, on application by the judgment creditor the court shall order that the nonexempt earnings, if any, withheld by the garnishee after service of the writ be transferred to the judgment creditor who is entitled to such monies subject to the judgment debtor’s right to objection and hearing pursuant to this article. The court shall further order that the garnishment is a continuing lien against the nonexempt earnings of the judgment debtor.
B. If a timely objection is filed the court shall conduct a hearing pursuant to Section 12-1598.07 and shall make the following determinations:
1. Whether the writ is valid against the judgment debtor.
2. The amount outstanding on the judgment at the time the writ was served, plus accruing attorney fees and costs.
3. Whether the judgment debtor was employed by the garnishee at the time the writ was served.
4. Whether earnings were owed or would be owed by the garnishee to the judgment debtor within sixty days after the service of the writ.
5. Whether the debt was, at the time of service of the writ, subject to an effective agreement for debt scheduling between the judgment debtor and a qualified debt counseling organization.
C. If the court makes an affirmative determination under subsection B, paragraph 1 of this section and subsection B, paragraph 3 or 4 of this section and determines that the debt was not, at the time of service of the writ, subject to an effective agreement between the judgment debtor and a qualified debt counseling organization, the court shall order that the nonexempt earnings, if any, withheld by the garnishee after service of the writ be transferred to the judgment creditor and further order that the garnishment is a continuing lien against the nonexempt earnings of the judgment debtor. Otherwise the court shall order the garnishee discharged from the writ.
D. A continuing lien ordered pursuant to this section is invalid and of no force and effect on the occurrence of any of the following conditions:
1. The underlying judgment is satisfied in full, is vacated or expires.
2. The judgment debtor leaves the garnishee’s employ for more than sixty days or, if the judgment debtor is an employee of a school district, a charter school, the Arizona state schools for the deaf and the blind or an accommodation school and the judgment debtor is subject to an employment contract that specifies that paydays are restricted to the school year, for more than ninety days.
3. The judgment creditor releases the garnishment.
4. The proceedings are stayed by a court of competent jurisdiction, including the United States bankruptcy court.
5. The judgment debtor has not earned any nonexempt earnings for at least sixty days or, if the judgment debtor is an employee of a school district, a charter school, the Arizona state schools for the deaf and the blind or an accommodation school and the judgment debtor is subject to an employment contract that specifies that paydays are restricted to the school year, for at least ninety days.
6. The court orders that the garnishment be quashed.
E. If no objections are filed to the answer of the garnishee and an order of continuing lien is not entered within forty-five days after the filing of the answer of the garnishee, any earnings held by the garnishee shall be released to the judgment debtor and the garnishee shall be discharged from any liability on the garnishment.
F. If at the hearing the court determines that the judgment debtor is subject to the twenty-five percent maximum disposable earnings provision under section 33-1131, subsection B and based on clear and convincing evidence that the judgment debtor or the judgment debtor’s family would suffer extreme economic hardship as a result of the garnishment, the court may reduce the amount of nonexempt earnings withheld under a continuing lien ordered pursuant to this section from the twenty-five percent to not less than fifteen percent.
G. A court order entered pursuant to this section if recorded does not constitute a lien against real property pursuant to section 33-961.
H. The court, sitting without a jury, shall decide all issues of fact and law.