United States District Court, D. Arizona
ORDER
DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE
Before
the Court is CNA National Warranty Corporation's
(“CNA”) application for provisional remedy in the
form of a writ of garnishment. (Docs. 4, 8). For reasons
stated below, CNA's application is granted.
I.
Background
On June
20, 2019, CNA filed this action, alleging breach of contract,
breach of the implied covenant of good faith and fair
dealing, intentional misrepresentation, and negligent
misrepresentation. (Doc. 1.) Concurrently, CNA filed an
application for provisional remedy of garnishment. (Doc. 4.)
CNA then filed its application for writ of garnishment with
notice. (Doc. 8.) On July 5, 2019, Defendants filed an
objection to CNA's application and requested a hearing
pursuant to A.R.S. §§ 12-2403 and -2405. (Docs. 14
and 14-1.) On July 17, 2019, the Court held an evidentiary
hearing. (Doc. 31.)
II.
Legal Standard
“A
party may at any time after the filing of a civil action,
make application, under oath, to the court to issue any
provisional remedy allowed by law.” A.R.S. §
12-2404(A). “Such application shall be filed with the
[Court] . . . and shall set forth the factual and legal basis
for each provisional remedy sought.” Id.
§ 12-2404(B). Upon the filing of an application, a
notice is issued to any party against whom any provisional
remedy would operate. Id. §§ 12-2405;
-2406. The party against whom the remedy would operate may
request a hearing. Id. §§ 12-2405; -2407.
A
hearing on an application for a provisional remedy is limited
to the following issues: (1) “The probable validity of
the applicant's claim or claims and any defenses and
claims of personal property exemptions of the party against
whom such provisional remedy will operate;” and (2)
“[t]he existence of any statutory requirements for the
issuance of any provisional remedies sought.”
Id. § 12-2410(C). The purpose of the hearing
“is to afford a defendant an opportunity to attack the
validity of the plaintiff's claim before issuance of a
pre-judgment writ.” Granmo v. Superior Court,
596 P.2d 36, 38 (Ariz.Ct.App. 1979). “If after hearing
the court finds probable cause to believe the claim of the
applicant is valid and that the statutory requirements for
any provisional remedy have been met, such remedy shall be
issued forthwith.” A.R.S. § 12-2410(D).
III.
Discussion
The
Court may grant a provisional remedy if: (1) the party
against whom the remedy will be enforced is served with the
application and notice; (2) the statutory requirements for
the issuance of the provisional remedy (writ of garnishment)
are met; and (3) the applicant shows that's its claim or
claims are probably valid. Id. §§ 12-2403;
-2410. The Court discusses each requirement in turn.
A.
Application, Notice, and Service
An
application and notice for issuance of any provisional remedy
must be filed with the clerk of the court and a copy of such
notice and application must be served on the party against
whom any remedy will operate. Id. § 12-2403(2).
CNA filed its application for provisional remedy and writ of
garnishment with the Court. (Docs. 4, 8.) Defendants were
served with the application and notice. (Docs. 4-2; 15-21.)
CNA therefore has satisfied the application, notice, and
service requirement.
B.
Statutory Requirements
Next,
the applicant must meet all statutory requirements for the
issuance of such provisional remedy. A.R.S. §
12-2403(1). The statutory requirements for an application for
writ of garnishment of monies are as follows:
1. A statement that the applicant is a judgment
creditor.[1]
2. A statement that the applicant has good reason to believe
one of the following:
(a) That the garnishee is indebted to the judgment debtor for
monies which ...