Jun 26, 2019

Appeal Eviction in Arizona

Appealing an eviction in Arizona is expensive, time consuming, and cumbersome. So much so that I've never seen a tenant successfully appeal an eviction judgment. However, Arizona law provides tenants the opportunity to appeal a forcible detainer (eviction) judgment.

There are two (2) main stages to the appeal process. The first stage of the process begins in the Justice Court; the second stage takes place in the Arizona Superior Court. All of the steps must be followed with exactness the appeal will be dismissed.

STAGE ONE - Notice of Appeal

A Notice of Appeal MUST be filed with the Justice Court within 5 calendar days of the judgment. There is no flexibility with this deadline! If you miss this deadline then you will not be able to proceed.

Fee to File the Notice of Appeal:A $75 appeal fee is paid to the Justice Court at the time the Notice of Appeal is filed. This fee includes the cost of a copy of the audio recorded proceedings, a certification of the appeal record, and the transmittal of the record on appeal to the Superior Court.

Cost Bond: On or before the deadline to appeal the cost bond must be paid. Currently the cost bond is $250. The purpose of this bond is to cover court costs incurred by the landlord in defending the appeal.

Supersedeas Bond(s): One and Two: The purpose of the first supersedeas bond is to prevent enforcement of the judgment. Meaning the judgment creditor will not be able to try and collect on the judgment. For example, they are prevented from trying to garnish the tenants wages.

Supersedeas Bond Part Two: Payment of the second supersedeas bond will prevent any eviction proceeding resulting from an eviction action judgment.

It is not necessary for a tenant to post either of the two types of bonds. But they must post one or the other to prevent enforcement of the eviction judgment.

How much are the bonds? The amount of the bond is the total amount of the judgment ordered by the justice court, including court costs, attorney's fees, damages, etc. The purpose of this bond is to stay collection proceedings on the money judgment awarded. The stay becomes effective when the bond is posted.

The second supersedeas bond is used to stay the eviction proceedings enforced by a Writ of Restitution. The amount of the bond is the amount of rent due from the date of the judgment to the next periodic rental due date, plus court costs and attorney fees ordered in the judgment. To stay the eviction proceedings a supersedeas bond must be posted before the Writ of Restitution is enforced. The stay becomes active once the bond is paid, but cannot be retroactive if the Writ has already been executed.

Rent Payment: In addition to paying all the necessary fees and bonds, the tenant must continue to pay their rent during the appeal process. All rent payments must be paid to the justice court on or before the rental due date, pending the appeal process.  If the rent is not timely received, the plaintiff may pursue a Writ of Restitution for execution of the judgment for possession.

The Appeal Memorandum: The Appellant's memorandum is a written explanation of why the justice court ruling was legally wrong. This is where the tenant can provide a legal explanation for why the justice court's ruling was wrong. The memorandum should cite specific law and how it was inappropriately applied to the facts of the relevant case. The tenant's memorandum must be filed within 60 calendar days of the deadline to file the Notice of Appeal.

The landlord then has 30 days to file a response to the tenant's memorandum. Once both sides have filed their respective memorandum we must wait for further instruction from the Superior Court.

STAGE TWO - The Superior Court

About 60 days after the tenant files the memorandum, he or she will receive notice from the Superior Court instructing that a filing fee must be paid to the Superior Court.

Court's Ruling: After all of these steps have been completed, the parties will receive a written ruling from the Superior Court. The Superior Court can affirm the trial court, overrule the trial court, modify some of the trial court's decision, or, if the record is not clear order a new trial in the Superior Court.

If the final outcome of the case is that the original ruling stands, or if the tenant's appeal is dismissed for any reason, the court may use the bonds, deposit or payments made to satisfy the obligation under the original judgment.

If you need help from a real estate attorney then call Clint Dunaway at 480-389-6529 or email him at clint@dunawaylg.com.