Arizona Laws 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:
Terms Used In Arizona Laws 12-2402
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- 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
- 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.
- Party: means any plaintiff or defendant in any civil action, in any superior or justice court of this state. See Arizona Laws 12-2401
- Pleadings: Written statements of the parties in a civil case of their positions. In the federal courts, the principal pleadings are the complaint and the answer.
- Property: means any present or future interest in wages, real estate, goods, chattels or choses in action whether such interest is vested or contingent. See Arizona Laws 12-2401
- Provisional remedy: means the remedies of attachment, garnishment or replevin, but shall not include garnishment of wages. See Arizona Laws 12-2401
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."