32-2193.34. Statute of limitations; service of summons; application for payment; insufficient monies; definition

A. An action for a judgment that subsequently results in an order for payment from the condominium recovery fund shall be commenced or prosecuted within three years after the cause of action accrues.

B. If an aggrieved buyer commences an action for a judgment that may result in an order for payment from the condominium recovery fund and the defendant subdivider cannot be served process personally in this state, the summons may be served by the alternative methods of service provided for by the Arizona rules of civil procedure, including service by publication. A judgment that complies with this section and that was obtained after service by publication only applies to and is enforceable against the condominium recovery fund. The department may intervene in and defend any such action.

C. After an aggrieved buyer obtains a judgment against a subdivider based on the subdivider's failure to perform under the terms of the contract, the aggrieved buyer may apply to the department for payment from the condominium recovery fund and for a return of the buyer's deposit. The claimant must file the original application, including appendices, within two years after the termination of all proceedings, reviews and appeals connected with the judgment. The commissioner, in the commissioner's sole discretion, may waive the two-year application deadline if the commissioner determines that the waiver best serves the public interest. Delivery of the application must be by personal service or by certified mail.

D. The application must be within the limitations prescribed in section 32-2193.32 for the amount unpaid on the judgment that represents the claimant's losses in the transaction.

E. The department shall prescribe an application form that includes detailed instructions with respect to documentary evidence, pleadings, court rulings, products of discovery in the underlying litigation and notice requirements to the judgment debtor under section 32-2193.35.

F. The commissioner may waive compliance with one or more of the requirements of this section if the claim is based on an award pursuant to a criminal restitution order or if the commissioner is satisfied that the claimant has taken all reasonable steps to collect the amount of the judgment or the unsatisfied part of the judgment from all judgment debtors but has been unable to collect.

G. If the commissioner finds it is likely that, to pay in full the valid claims of all aggrieved persons who may have claims against any one subdivider, the awards from the fund will exceed the award limits prescribed by section 32-2193.32, the commissioner may petition the court to initiate a proration proceeding. The court shall grant the petition and order a hearing to distribute the fund awards among the claimants in the ratio that their respective claims bear to the aggregate of the valid claims or in another manner as the court deems equitable. The commissioner or any party may file a proposed plan for equitable distribution of the available monies. The monies shall be distributed among the persons entitled to share them without regard to the order of priority in which their respective judgments may have been obtained or their respective applications may have been filed. The court may require all claimants and prospective claimants against one subdivider to be joined in one action so that the respective rights of all claimants to the condominium recovery fund may be equitably adjudicated and settled. The court shall not include in the claims for proration the claim of any person who, within ninety days after the court has entered the order for proration, has not filed a complaint with the court, served the subdivider and provided written notice of the claim to the commissioner. The liability of the fund on any application affected by a proration proceeding is based on the limits in effect on the date when the last application for payment is filed. The court may refuse to consider or award prorated recovery to any person who fails to expeditiously prosecute a claim against the subdivider or promptly file an application for payment and submit supporting documentation as required by this article.

H. If the commissioner pays from the condominium recovery fund any amount in settlement of a claimant's claim or toward satisfaction of a judgment against a subdivider, the public report issued to that subdivider for the condominium subject to the judgment shall be automatically terminated on the issuance of an order authorizing payment from the condominium recovery fund.

I. If at any time the monies deposited in the condominium recovery fund are insufficient to satisfy any duly authorized claim or portion of a claim, the commissioner, when sufficient money has been deposited in the fund, shall satisfy the unpaid claims or portions of claims in the order that they were originally filed, plus accumulated interest at the rate of four per cent per year.

J. For the purposes of this section, "complaint" means the facts of the transaction on which the judgment is based.

32-2193.34. Statute of limitations; service of summons; application for payment; insufficient monies; definition

A. An action for a judgment that subsequently results in an order for payment from the condominium recovery fund shall be commenced or prosecuted within three years after the cause of action accrues.

B. If an aggrieved buyer commences an action for a judgment that may result in an order for payment from the condominium recovery fund and the defendant subdivider cannot be served process personally in this state, the summons may be served by the alternative methods of service provided for by the Arizona rules of civil procedure, including service by publication. A judgment that complies with this section and that was obtained after service by publication only applies to and is enforceable against the condominium recovery fund. The department may intervene in and defend any such action.

C. After an aggrieved buyer obtains a judgment against a subdivider based on the subdivider's failure to perform under the terms of the contract, the aggrieved buyer may apply to the department for payment from the condominium recovery fund and for a return of the buyer's deposit. The claimant must file the original application, including appendices, within two years after the termination of all proceedings, reviews and appeals connected with the judgment. The commissioner, in the commissioner's sole discretion, may waive the two-year application deadline if the commissioner determines that the waiver best serves the public interest. Delivery of the application must be by personal service or by certified mail.

D. The application must be within the limitations prescribed in section 32-2193.32 for the amount unpaid on the judgment that represents the claimant's losses in the transaction.

E. The department shall prescribe an application form that includes detailed instructions with respect to documentary evidence, pleadings, court rulings, products of discovery in the underlying litigation and notice requirements to the judgment debtor under section 32-2193.35.

F. The commissioner may waive compliance with one or more of the requirements of this section if the claim is based on an award pursuant to a criminal restitution order or if the commissioner is satisfied that the claimant has taken all reasonable steps to collect the amount of the judgment or the unsatisfied part of the judgment from all judgment debtors but has been unable to collect.

G. If the commissioner finds it is likely that, to pay in full the valid claims of all aggrieved persons who may have claims against any one subdivider, the awards from the fund will exceed the award limits prescribed by section 32-2193.32, the commissioner may petition the court to initiate a proration proceeding. The court shall grant the petition and order a hearing to distribute the fund awards among the claimants in the ratio that their respective claims bear to the aggregate of the valid claims or in another manner as the court deems equitable. The commissioner or any party may file a proposed plan for equitable distribution of the available monies. The monies shall be distributed among the persons entitled to share them without regard to the order of priority in which their respective judgments may have been obtained or their respective applications may have been filed. The court may require all claimants and prospective claimants against one subdivider to be joined in one action so that the respective rights of all claimants to the condominium recovery fund may be equitably adjudicated and settled. The court shall not include in the claims for proration the claim of any person who, within ninety days after the court has entered the order for proration, has not filed a complaint with the court, served the subdivider and provided written notice of the claim to the commissioner. The liability of the fund on any application affected by a proration proceeding is based on the limits in effect on the date when the last application for payment is filed. The court may refuse to consider or award prorated recovery to any person who fails to expeditiously prosecute a claim against the subdivider or promptly file an application for payment and submit supporting documentation as required by this article.

H. If the commissioner pays from the condominium recovery fund any amount in settlement of a claimant's claim or toward satisfaction of a judgment against a subdivider, the public report issued to that subdivider for the condominium subject to the judgment shall be automatically terminated on the issuance of an order authorizing payment from the condominium recovery fund.

I. If at any time the monies deposited in the condominium recovery fund are insufficient to satisfy any duly authorized claim or portion of a claim, the commissioner, when sufficient money has been deposited in the fund, shall satisfy the unpaid claims or portions of claims in the order that they were originally filed, plus accumulated interest at the rate of four per cent per year.

J. For the purposes of this section, "complaint" means the facts of the transaction on which the judgment is based.