News & Resources

Peter Foster

IMPORTANT UPDATE

On March 20, 2018, House Bill 2240 was signed into law by the Governor of Arizona. House Bill 2240 revised A.R.S. §§ 12-1551, 12-1611, 12-1612, 12-1613, and 33-964 to reflect that judgments in Arizona are valid for ten years, not five. The new law became effective August 3, 2018. The new ten-year time period clearly applies to any judgment entered on or after August 3, 2018. With regard to judgments entered prior to August 3, 2018, it is somewhat unclear how the new law impacts renewal obligations. If you are attempting to renew a judgment that was entered prior to August 3, 2018, it is recommended that you consult with an attorney licensed to practice in Arizona.

Following is the original April 2017 article:

In Arizona, after a judgment is entered and docketed, the judgment creditor has five years to collect the judgment by using a writ of execution or other process.[1] After the expiration of five years from the date a judgment is entered and docketed, no execution or other process can be issued on the judgment unless the judgment creditor previously renewed the judgment in accordance with the specific requirements of Arizona law.[2]

The process of renewing a judgment is governed by statute, and there are many pitfalls for the unwary judgment creditor. This article summarizes the judgment renewal process in Arizona. It is highly recommended that judgment creditors consult with an Arizona attorney for assistance with the judgment renewal process.

Pitfall No. 1: Renewal Methods

There are two methods to renew a judgment in Arizona: (i) renewal by affidavit; and (ii) renewal by action.

Renewal by Affidavit

Renewal by affidavit, pursuant to A.R.S. § 12-1612, is the most common method of renewing a judgment in Arizona. Notably, section 12-1612(A) explicitly provides that a judgment “for the payment of money” may be renewed by affidavit.[3]

Of course, not all judgments are money judgments. Occasionally, a judgment may compel the judgment debtor to perform a specific act. For example, consider a hypothetical where a homeowners association obtains a judgment declaring that an owner violated applicable covenants, conditions & restrictions by painting her home bright red. In that case, the judgment may include language compelling the owner to repaint her home using an approved color. Arguably, given that A.R.S. § 12-1612(A) ostensibly limits the applicability of the statute to judgments “for the payment of money,” the HOA’s non-monetary judgment may not be renewed by affidavit under A.R.S. § 12-1612. Instead, if the judgment must be renewed at all, it likely must be renewed by action as discussed in more detail below.

The question of whether non-monetary judgments must be renewed is unsettled in Arizona.[4] Notwithstanding the unsettled nature of renewal obligations related to non-monetary judgments, it is clear that renewal by affidavit is the preferred method of renewing a judgment for the payment of money. In such case, the judgment debtor must file, with the clerk of the court where the judgment is entered and docketed, an affidavit for renewal that complies with the specific requirements of A.R.S. § 12-1612. Such requirements are discussed in more detail below.

Renewal by Action

A.R.S. § 12-1611 provides that “a judgment may be renewed by action thereon at any time within five years after the date of the judgment.” Discussing renewals by action, the Supreme Court of Arizona has noted that “every judgment continues to give rise to an ‘action to enforce it, called an action upon a judgment.’”[5] The Court has also noted that “[t]he main purpose of an action on a judgment is to obtain a new judgment which will facilitate the ultimate goal of securing the satisfaction of the original cause of action.”[6]

In Fidelity Nat. Financial, the Supreme Court of Arizona explained that “the defendant in an action on the judgment under our statutory scheme is generally the judgment debtor … and the amount sought is the outstanding liability on the original judgment.”[7] In an action on a judgment, “[t]he judgment debtor cannot deny the binding force of the judgment … but can assert such defenses as satisfaction or partial payment.”[8] Ultimately, in the event that it is shown that “indebtedness remains on the original judgment, the action results in a new judgment in the amount owed.”[9]

Importantly, in Fidelity Nat. Financial, the Supreme Court of Arizona was clear that efforts to collect a judgment, through a garnishment action or similar collection activity, do not serve to renew the judgment by action under A.R.S. § 12-1611.[10] Instead, an action on a judgment involves the commencement of an entirely new lawsuit for the purpose of obtaining a new judgment.[11] Without a doubt, the renewal by action process of A.R.S. § 12-1611 is far more cumbersome than the renewal by affidavit process of A.R.S. § 12-1612.

Pitfall No. 2: Elements of the Affidavit for Renewal

An affidavit for renewal under A.R.S. § 12-1612 must include the following information:

1. The case number of the action in which the judgment was entered.[12]
2. The names of the parties; the name of the court in which docketed; if recorded, the name of the county in which recorded; the date and amount of the judgment; if recorded, the number and page of the book in which recorded by the county recorder; the name of the owner of the judgment; and his source and succession of title, if not the judgment creditor.[13]
3. That no execution is anywhere outstanding and unreturned upon the judgment, or if any execution is outstanding, that fact shall be stated.[14]
4. The date and amount of all payments upon the judgment and that all payments have been duly credited upon the judgment.[15]
5. That there are no set-offs or counterclaims in favor of the judgment debtor, and if a counterclaim or set-off does exist in favor of the judgment debtor, the amount thereof, if certain, or, if the counterclaim or set-off is unsettled or undetermined, a statement that when it is settled or determined by action or otherwise, it may be allowed as a payment or credit upon the judgment.[16]
6. The exact amount due upon the judgment after allowing all set-offs and counterclaims known to affiant, and other facts or circumstances necessary to a complete disclosure as to the exact condition of the judgment.[17]
7. The signature of the judgment creditor, his personal representative, or assignee.[18]
8. A statement that the person signing the affidavit verifies the information positively ( i.e. , upon actual knowledge) and not upon information and belief.[19]
9. If the judgment was docketed by the clerk of the court upon a certified copy from any other court and subsequently an abstract recorded with the county recorder, the affidavit must include a statement of each county in which such transcript has been docketed and abstract recorded.[20]

Every effort should be made to include all of the foregoing information in the affidavit for renewal. In the event of errors or oversights in the affidavit, the judgment creditor can look to Arizona case law to support the argument that certain omissions or inaccuracies in the content of the affidavit will not necessarily prove fatal to the renewal.[21]

Pitfall No. 3: The “Renewal Window”

An affidavit for renewal under A.R.S. § 12-1612 must be filed within the window of time that is 90 days preceding the expiration of five years from the date the judgment was entered and docketed by the court.[22]

For purposes of calculating the 90-day renewal window, it is important to remember that the relevant date is the one that is file-stamped on the top right corner of the first page of the judgment by the clerk of the court. Sometimes this date differs from the date the judge or commissioner signed the judgment. Under A.R.S. § 12-1612, the renewal will be ineffective if the affidavit for renewal is filed on a date that falls outside (either before or after) the 90-day renewal window. For this reason, it is recommended that the affidavit for renewal be filed comfortably within the 90-day renewal window. Filing on the very first or last day risks a calendaring error.

The Court of Appeals of Arizona has noted that, while “some defects contained in an affidavit may not defeat a renewal of judgment, the timeliness of the affidavit is a rigid statutory requirement and is not subject to modification by the court.”[23] Remember, the relevant date for purposes of calculating the “renewal window” is the date the judgment was entered and docketed by the court. Other dates – such as the date the judgment was recorded with the county recorder – are irrelevant to the calculation of the renewal window.

Additional and successive renewal affidavits may be made and filed within 90 days of the expiration of five years from the date of the filing of a prior renewal affidavit.[24] Again, it is important to keep in mind that the “date of the filing” of a prior renewal affidavit is the date that is file-stamped on the top right corner of the first page by the clerk of the court. Other dates – such as the date the prior renewal affidavit was recorded with the county recorder – are irrelevant to the calculation of the 90-day renewal window.

Finally, the Supreme Court of Arizona has held that “[u]nder Arizona law, the time to file an affidavit of renewal of judgment is not changed or extended by the pendency of a bankruptcy case.”[25] Also, the filing of an affidavit of renewal “is not prohibited … by an automatic bankruptcy stay or any stay of the enforcement of the judgment.”[26]

Pitfall No. 4: County Recorder

After obtaining a judgment, it is common practice to file and record a certified copy of the judgment in the office of the county recorder where the debtor owns real property. Recording a certified copy of the judgment with the county recorder creates a lien on any real property of the judgment debtor that is located in the county.[27] Importantly, any judgment that requires the payment of money will not become a lien on real property until a separate information statement is attached to the judgment being recorded.[28] The separate information statement must contain all of the following information:

1. The correct name and last known address of each judgment debtor and the address at which each judgment debtor received the summons by personal service or by mail.[29]
2. The name and address of the judgment creditor.[30]
3. The amount of the judgment or decree as entered or as most recently renewed.[31]
4. If the judgment debtor is a natural person, the judgment debtor’s Social Security number (but only if the Social Security number has been provided voluntarily to the judgment creditor by the judgment debtor), date of birth and driver license number.[32]
5. Whether a stay of enforcement has been ordered by the court and the date the stay expires.[33]

In order to continue a judgment lien when renewing a judgment, a copy of the affidavit for renewal, certified by the clerk of the court, must be recorded in the office of the county recorder.[34] A separate information statement that includes the information required by A.R.S. § 33-967(A) must be recorded along with the affidavit for renewal.

Conclusion

Judgments in Arizona must be renewed every five years. When a judgment creditor fails to properly renew, the result is the inability to enforce the judgment through a writ of execution or other process. By paying attention to details and being mindful of the pitfalls of the judgment renewal process, the judgment creditor can succeed in extending the judgment for a new five-year term.

[1] See A.R.S. § 12-1551(A).

[2] See A.R.S. § 12-1551(B).

[3] See A.R.S. § 12-1612(A).

[4] See Crye v. Edwards, 178 Ariz. 327, 873 P.2d 665 (App. 1993) (citing A.R.S. § 12-1551 and noting that “monetary judgments expire in Arizona if not renewed every five years.”); but see Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir. 1974) (noting that A.R.S. § 12-1551(B) “extinguishes the right to execution on all judgments, whether for the payment of money or performance of specific acts.”).

[5] Fidelity Nat. Financial Inc. v. Friedman, 225 Ariz. 307, 310, 238 P.3d 118, 121 (2010) (citing Associated Aviation Underwriters v. Wood, 209 Ariz. 137, 180, 98 P.3d 572, 615 (App. 2004) (citation and internal quotation marks omitted).

[6] Id. (citations and internal quotation marks omitted).

[7] Id. (internal citations omitted).

[8] Id. (internal citations omitted).

[9] Id. (internal citations omitted).

[10] See id. at 312, 238 P.3d at 123.

[11] See id.

[12] A.R.S. § 12-1612(B).

[13] A.R.S. § 12-1612(B)(1).

[14] A.R.S. § 12-1612(B)(2).

[15] A.R.S. § 12-1612(B)(3).

[16] A.R.S. § 12-1612(B)(4).

[17] A.R.S. § 12-1612(B)(5).

[18] A.R.S. § 12-1612(B).

[19] A.R.S. § 12-1612(C).

[20] A.R.S. § 12-1612(C).

[21] See e.g., Weltsch v. O’Brien, 25 Ariz.App. 50, 540 P.2d 1269 (App. 1975) (omission of the clerk’s docket number and page is not fatal); Fay v. Harris, 64 Ariz. 10, 14, 164 P.2d 860, 862 (1945) (error in the calculation of the amount due was not fatal).

[22] A.R.S. § 12-1612(B).

[23] State ex rel. Indus. Comm’n of Arizona v. Galloway, 224 Ariz. 325, 330 n. 5, 230 P.3d 708, 713 n. 5 (App. 2010) (emphasis added).

[24] A.R.S. § 12-1612(E).

[25] In re Smith, 209 Ariz. 343, 346, 101 P.3d 637, 640 (2004).

[26] Id. at 345, 101 P.3d at 639.

[27] A.R.S. § 33-961(A).

[28] A.R.S. § 33-967(A).

[29] Id.

[30] Id.

[31] Id.

[32] A.R.S. §§ 33-967(A), 33-967(B).

[33] A.R.S. §§ 33-967(A).

[34] A.R.S. § 12-1613(C).