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2006 Utah Code - 61-2a-5 — Notice to division -- Judgment against real estate licensee -- Fraud, misrepresentation, or deceit -- Verified petition for order directing payment from fund -- Limitations and procedure.
61-2a-5. Notice to division -- Judgment against real estate licensee -- Fraud,
misrepresentation, or deceit -- Verified petition for order directing payment from fund --
Limitations and procedure.
(1) A person may bring a claim against the Real Estate Education, Research, and Recovery Fund only if he sends a signed notification to the Division of Real Estate at the time he files an action against a real estate licensee alleging fraud, misrepresentation, or deceit. Within 30 days of receipt of the notice, the division shall have an unconditional right to intervene in the action. If the person making a claim against the fund obtains a final judgment in a court of competent jurisdiction in this state against the licensee based upon fraud, misrepresentation, or deceit in any real estate transaction, the person making the claim may, upon termination of all proceedings including appeals, file a verified petition in the court where the judgment was entered for an order directing payment from the Real Estate Education, Research, and Recovery Fund for the uncollected actual damages included in the judgment and unpaid. Recovery from the fund may not include punitive damages, attorney's fees, interest, or court costs. Regardless of the number of claimants or parcels of real estate involved in a transaction, the liability of the fund may not exceed $10,000 for a single transaction and $50,000 for any one licensee.
(2) A copy of the petition shall be served upon the Division of Real Estate of the Department of Commerce, and an affidavit of the service shall be filed with the court.
(3) The court shall conduct a hearing on the petition within 30 days after service. The petitioner shall recover from the fund only if he shows all of the following:
(a) He is not the spouse of the judgment debtor or the personal representative of the spouse.
(b) He has complied with this chapter.
(c) He has obtained a final judgment in the manner prescribed under this section, indicating the amount of the judgment awarded.
(d) He has proved the amount still owing on the judgment at the date of the petition.
(e) He has had a writ of execution issued upon the judgment, and the officer executing the writ has made a return showing that no property subject to execution in satisfaction of the judgment could be found. If execution is levied against the property of the judgment debtor, the petitioner shall show that the amount realized was insufficient to satisfy the judgment, and shall indicate the amount realized and the balance remaining on the judgment after application of the amount realized.
(f) He has made reasonable searches and inquiries to ascertain whether the judgment debtor has any interest in property, real or personal, that may satisfy the judgment, and he has exercised reasonable diligence to secure payment of the judgment from the assets of the judgment debtor.
(4) If the petitioner satisfies the court that it is not practicable for him to comply with one or more of the requirements enumerated in Subsections (3)(e) and (f), the court may waive those requirements.
(5) A judgment that is the basis for a claim against the fund may not have been discharged in bankruptcy. In the case of a bankruptcy proceeding that is still open or that is commenced during the pendency of the claim, the claimant shall obtain an order from the bankruptcy court declaring the judgment and debt to be nondischargeable.
(1) A person may bring a claim against the Real Estate Education, Research, and Recovery Fund only if he sends a signed notification to the Division of Real Estate at the time he files an action against a real estate licensee alleging fraud, misrepresentation, or deceit. Within 30 days of receipt of the notice, the division shall have an unconditional right to intervene in the action. If the person making a claim against the fund obtains a final judgment in a court of competent jurisdiction in this state against the licensee based upon fraud, misrepresentation, or deceit in any real estate transaction, the person making the claim may, upon termination of all proceedings including appeals, file a verified petition in the court where the judgment was entered for an order directing payment from the Real Estate Education, Research, and Recovery Fund for the uncollected actual damages included in the judgment and unpaid. Recovery from the fund may not include punitive damages, attorney's fees, interest, or court costs. Regardless of the number of claimants or parcels of real estate involved in a transaction, the liability of the fund may not exceed $10,000 for a single transaction and $50,000 for any one licensee.
(2) A copy of the petition shall be served upon the Division of Real Estate of the Department of Commerce, and an affidavit of the service shall be filed with the court.
(3) The court shall conduct a hearing on the petition within 30 days after service. The petitioner shall recover from the fund only if he shows all of the following:
(a) He is not the spouse of the judgment debtor or the personal representative of the spouse.
(b) He has complied with this chapter.
(c) He has obtained a final judgment in the manner prescribed under this section, indicating the amount of the judgment awarded.
(d) He has proved the amount still owing on the judgment at the date of the petition.
(e) He has had a writ of execution issued upon the judgment, and the officer executing the writ has made a return showing that no property subject to execution in satisfaction of the judgment could be found. If execution is levied against the property of the judgment debtor, the petitioner shall show that the amount realized was insufficient to satisfy the judgment, and shall indicate the amount realized and the balance remaining on the judgment after application of the amount realized.
(f) He has made reasonable searches and inquiries to ascertain whether the judgment debtor has any interest in property, real or personal, that may satisfy the judgment, and he has exercised reasonable diligence to secure payment of the judgment from the assets of the judgment debtor.
(4) If the petitioner satisfies the court that it is not practicable for him to comply with one or more of the requirements enumerated in Subsections (3)(e) and (f), the court may waive those requirements.
(5) A judgment that is the basis for a claim against the fund may not have been discharged in bankruptcy. In the case of a bankruptcy proceeding that is still open or that is commenced during the pendency of the claim, the claimant shall obtain an order from the bankruptcy court declaring the judgment and debt to be nondischargeable.
Amended by Chapter 86, 2000 General Session
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