A. The state or any person entitled to restitution pursuant to a court order may file in accordance with this section a restitution lien. A filing fee, recording fee or any other charge is not required for filing a restitution lien.
Terms Used In Arizona Laws 13-806
- Action: includes any matter or proceeding in a court, civil or criminal. See Arizona Laws 1-215
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Economic loss: means any loss incurred by a person as a result of the commission of an offense. See Arizona Laws 3-1703
- Felony: means an offense for which a sentence to a term of imprisonment in the custody of the state department of corrections is authorized by any law of this state. See Arizona Laws 3-1703
- Garnishment: Generally, garnishment is a court proceeding in which a creditor asks a court to order a third party who owes money to the debtor or otherwise holds assets belonging to the debtor to turn over to the creditor any of the debtor
- including: means not limited to and is not a term of exclusion. See Arizona Laws 1-215
- Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.
- Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- Lien: A claim against real or personal property in satisfaction of a debt.
- Magistrate: means an officer having power to issue a warrant for the arrest of a person charged with a public offense and includes the chief justice and justices of the supreme court, judges of the superior court, judges of the court of appeals, justices of the peace and judges of a municipal court. See Arizona Laws 1-215
- Misdemeanor: means an offense for which a sentence to a term of imprisonment other than to the custody of the state department of corrections is authorized by any law of this state. See Arizona Laws 3-1703
- Person: means a human being and, as the context requires, an enterprise, a public or private corporation, an unincorporated association, a partnership, a firm, a society, a government, a governmental authority or an individual or entity capable of holding a legal or beneficial interest in property. See Arizona Laws 3-1703
- Personal property: includes money, goods, chattels, things in action and evidences of debt. See Arizona Laws 1-215
- Property: means anything of value, tangible or intangible. See Arizona Laws 3-1703
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- Vehicle: means a device in, upon or by which any person or property is, may be or could have been transported or drawn upon a highway, waterway or airway, excepting devices moved by human power or used exclusively upon stationary rails or tracks. See Arizona Laws 3-1703
- Writ: means an order or precept in writing issued in the name of the state or by a court or judicial officer. See Arizona Laws 1-215
B. A restitution lien shall be signed by the attorney representing the state in the criminal action or by a magistrate and shall set forth all of the following information:
1. The name and date of birth of the defendant whose property or other interests are subject to the lien.
2. The present residence or principal place of business of the person named in the lien, if known.
3. The criminal proceeding pursuant to which the lien is filed, including the name of the court, the title of the action and the court’s file number.
4. The name and address of the attorney representing the state in the proceeding pursuant to which the lien is filed or the name and address of the person entitled to restitution pursuant to a court order filing the lien.
5. A statement that the notice is being filed pursuant to this section.
6. The amount of restitution the defendant in the proceeding has been ordered to pay or an estimated amount of economic loss caused by the offense alleged in the proceeding if no restitution order has been entered yet.
7. A statement that the total amount of restitution owed will change and that the clerk of the court in which the proceeding was or is pending shall maintain a record of the outstanding balance.
C. A prosecutor or a victim in a criminal proceeding in which there was an economic loss may file a request with the court for a preconviction restitution lien after the filing of a misdemeanor complaint or felony information or indictment.
D. A victim in a criminal proceeding may file a restitution lien after restitution is determined and ordered by the trial court following pronouncement of the judgment and sentence.
E. A restitution lien is perfected against interests in personal property by filing the lien with the secretary of state, except that in the case of titled motor vehicles it shall be filed with the department of transportation motor vehicle division. A restitution lien is perfected against interests in real property by filing the lien with the county recorder of the county in which the real property is located. The state or a victim may give the additional notice of the lien as either deems appropriate.
F. The filing of a restitution lien in accordance with this section creates a lien in favor of the state or the victim in all of the following:
1. Any interest of the defendant in real property situated in the county in which the lien is filed then maintained or thereafter acquired in the name of the defendant identified in the lien.
2. Any interest of the defendant in personal property situated in this state then maintained or thereafter acquired in the name of the defendant identified in the lien.
3. Any property identified in the lien to the extent of the defendant’s interest in the property.
G. The filing of a restitution lien under this section is notice to all persons dealing with the person or property identified in the lien of the state’s or victim’s claim. The lien created in favor of the state or the victim in accordance with this section is superior and prior to the claims or interests of any other person, except a person possessing any of the following:
1. A valid lien perfected before the filing of the restitution lien.
2. In the case of real property, an interest acquired and recorded before the filing of the restitution lien.
3. In the case of personal property, an interest acquired before the filing of the restitution lien.
H. This section does not limit the right of the state or any other person entitled to restitution to obtain any order or injunction, receivership, writ, attachment, garnishment or other remedy authorized by law.
I. Following the entry of the judgment and sentence in the criminal case, if the trial court sentences the defendant to pay a fine or awards costs of investigation or prosecution, the state may file a restitution lien pursuant to this section for the amount of the fine or costs, except that a lien may not be perfected against a titled motor vehicle.
J. A criminal restitution lien is a criminal penalty for the purposes of any federal bankruptcy involving the defendant.
K. The court shall order the release of any preconviction restitution lien that has been filed or perfected if the defendant is acquitted or the state does not proceed with the prosecution.
L. A self-service storage facility that forecloses its lien pursuant to section 33-1704 may sell personal property that is subject to a restitution lien. The proceeds from the sale, less the reasonable costs of sale, shall be paid to the restitution lienholder to satisfy the restitution lien as prescribed in section 33-1704. A person who is a good faith purchaser pursuant to section 33-1704 and who purchases personal property that is subject to a restitution lien takes the property free and clear of the rights of the restitution lienholder.