§444-28  Statute of limitations; recovery
from fund.  (a)  No action for an arbitration award or for a judgment which
may subsequently result in an order for collection from the contractors
recovery fund shall be commenced later than six years from the accrual of the
cause of action thereon.  When any injured person commences action for an
arbitration award or for a judgment which may result in collection from the
contractors recovery fund, the injured person shall notify the board in writing
to this effect at the time of the commencement of such action.  The board shall
have the right to intervene in and defend any such action.  Nothing in this
section shall supersede the statute of limitations as contained in section
657-8.



(b)  When any injured person recovers a valid
judgment in any circuit court or district court of the county where the
violation occurred against any licensed contractor for such act,
representation, transaction, or conduct which is in violation of the provisions
of this chapter or the regulations promulgated pursuant thereto, which occurred
on or after June 1, 1974, the injured person may, upon the termination of all
proceedings, including reviews and appeals in connection with the judgment,
file a verified claim in the court in which the judgment was entered and, upon
ten days' written notice to the contractors license board, may apply to the
court for an order directing payment out of the contractors recovery fund, of
the amount unpaid upon the judgment, subject to the limitations stated in this
section.  Before proceeding against the contractors recovery fund, the injured
person must first proceed against any existing bond covering the licensed
contractor.



(c)  The court shall proceed upon such
application in a summary manner, and, upon the hearing thereof, the injured
person shall be required to show:



(1)  The injured person is not a spouse of debtor, or
the personal representative of such spouse.



(2)  The injured person has complied with all the
requirements of this section.



(3)  The injured person has obtained a judgment as set
out in subsection (b) of this section, stating the amount thereof and the
amount owing thereon at the date of the application.



(4)  The injured person has made all reasonable
searches and inquiries to ascertain whether the judgment debtor is possessed of
real or personal property or other assets, liable to be sold or applied in
satisfaction of the judgment.



(5)  That by such search the injured person has
discovered no personal or real property or other assets liable to be sold or
applied, or that the injured person has discovered certain of them, describing
them, owned by the judgment debtor and liable to be so applied, and that the
injured person has taken all necessary action and proceedings for the realization
thereof, and that the amount thereby realized was insufficient to satisfy the
judgment, stating the amount so realized and the balance remaining due on the
judgment after application of the amount realized.



(d)  The court shall make an order directed to
the contractors license board requiring payment from the contractors recovery
fund of whatever sum it shall find to be payable upon the claim, pursuant to
the provisions of and in accordance with the limitations contained in this
section, if the court is satisfied, upon the hearing of the truth of all
matters required to be shown by the injured person by subsection (c) of this
section and that the injured person has fully pursued and exhausted all
remedies available to the injured person for recovering the amount awarded by
the judgment of the court.



(e)  The license of the contractor shall be
automatically terminated upon execution of a settlement agreement requiring
payment from the contractors recovery fund or the issuance of a court order
authorizing payment from the contractors recovery fund.  No contractor shall be
eligible to receive a new license until the contractor has repaid in full, plus
interest at the rate of ten per cent a year, the amount paid from the
contractors recovery fund on the contractor's account.  A discharge in
bankruptcy shall not relieve a person from the penalties and disabilities
provided in this subsection.



(f)  If, at any time, the money deposited in
the contractors recovery fund is insufficient to satisfy any duly authorized
claim or portion thereof, the contractors license board shall, when sufficient
money has been deposited in the contractors recovery fund, satisfy such unpaid
claims or portions thereof, in the order that such claims or portions thereof
were originally filed.



(g)  With respect to the repair or alteration
of an existing residential building or structure or any appurtenance thereto,
including but not limited to swimming pools, retaining walls, garages or
sprinkling systems, initial construction of such appurtenances, and landscaping
of private residences, including condominium or cooperative units, pursuant to
a contract between the owner and a licensed contractor for which the owner has
paid the contractor in full, should, because of the contractor's default, a
mechanic's or materialman's lien be enforced against the property pursuant to
section 507-47, the court hearing the action shall award such an owner or the
owner's assigns a valid judgment against the contractor in an amount equal to
the amount of the lien together with reasonable attorney's fees as determined
by the court.  The judgment shall include an order directing payment out of the
contractors recovery fund.  Notwithstanding any other provisions of this
section to the contrary, the owner or the owner's assigns need not meet any
other requirement to secure payment from the contractors recovery fund, except
that notice of the lien enforcement hearing shall be given to the contractors
license board so it may appear pursuant to section 444-31. [L 1973, c 170, pt
of §1; am L 1975, c 183, §1; am L 1977, c 127, §3; gen ch 1985; am L 1992, c
258, §§5, 6]



 



Case Notes



 



  Building material supplier could recover from fund where
action against contractor began prior to 1977 amendments.  63 H. 540, 632 P.2d
649.