Full Text
Checklist for Processing Abandoned Motor Vehicles For Use by Repair Facility (09-01-19) Any repair facility which has been in possession of a motor vehicle for at least (15) days without communication from an owner or insurance company and which desires to file a petition pursuant to Code Section 40-11-19.1 (“communication” includes any form of communication which can be verifiably documented) The repair facility shall request from (local law enforcement, the Department of Revenue, or Auto Data Direct), the identification and addresses of all owners/lienholders of the vehicle. If such vehicle has an out-of-state license plate, such request shall be made to the state where the vehicle is registered or to an entity with access to such state’s vehicle registration information. [40-11-16(b)(1)] Date information requested (Attach copy of request and the return to Petition) When a motor vehicle has been left with a repair facility for at least (15) days, and no later than (180) days, without payment of amounts owed The repair facility shall send all owners/lienholders the notification letter form, (MAG 40-05),(2 pages), developed by the Council of Magistrate Court Judges for such purpose by certified mail. [40-11-19(b)(1)] Date notice mailed (Attach copy of letter and certified receipt to Petition) If the Identity of the Owner/Lienholder Cannot be Obtained – Within (60) days The repair facility shall place an advertisement in a newspaper of general circulation or the legal organ in the county where such vehicle is stored, once a week for two consecutive weeks using the form (MAG40-04) provided by the council of Magistrate Court Judges for such purpose. [40-11-19(b)(2)] Date of Publications (Attach copy to Petition) If the Identity of an Owner/Lienholder Becomes Known While an Advertisement is Run – Within (10) Days of Obtaining Information The repair facility shall send a notification letter to owners/lienholders pursuant to the same requirements set forth in 40-11-19(b)(1) as stated above. [40-11-19(b)(3)] Date notice mailed (Attach copy of letter and certified receipt to Petition) Page Attach to Petition for Abandoned Motor Vehicle Lien Foreclosure ---PAGE BREAK--- Additional Information Pursuant to Code Section 40-11-19 and 40-11-19.1 Any repair facility shall have a lien on a motor vehicle located on its property in the amount of any unpaid and incurred fees upon compliance with the notice requirements of 40-11-19. Said fees which are documented to the court are recoverable under such lien and shall be limited to the following: 1) The maximum allowable charge for the removal of the vehicle as set forth by rule and regulation of the Department of Public Safety for maximum state-wide rate tariffs; 2) The maximum allowable daily rate for the storage of the vehicle as set forth by rule and regulation of the Department of Public Safety for maximum state-wide rate tariffs multiplied by the number of days such vehicle has been stored from the date notification required under 40-11-19 was received to the date any judgment is issued plus (25) days; 3) All outstanding charges or fees for repair; 4) The cost of obtaining owner information pursuant to this article; 5) The cost of any notification to owners/lienholders required by this article, including any costs of advertising; 6) The cost to file an action pursuant to 40-11-19.1 and the cost of the certified order; 7) Attorney’s fees, which shall be (15) percent of the total amount of the lien for recoverable fees and shall be awarded for appearance as attorney of record on the matter before the court; and 8) Any prejudgment interest from the date which notification pursuant to the Code section was deemed received at a rate of percent per annum. Any fees listed which have been paid to a repair facility by an owner or any third party shall not be included in a lien. [40-11-19(d)] The receipt of a properly notarized form disclaiming ownership in a motor vehicle shall be filed with the action provided for in 40-11-19.1, but shall not be deemed to relieve a repair facility, of any obligation to any other owners of such vehicle under this article. Such form shall be evidence to be considered by the court in any action filed pursuant to 40-11-19.1. [40-11-19(e)] If at any time prior to filing a petition to foreclose a lien pursuant to Code Section 40-11-19.1, a repair facility receives a demand from an owner pursuant to subsection of Code Section 40-3-54, such repair facility shall, within (30) days, institute foreclosure proceedings pursuant to such Code section or to Code Section 40- 11-19.1. If upon receipt of such demand a repair facility fails to institute foreclosure proceedings pursuant to either Code section, the lien is forfeited. Receipt of such demand shall relieve the repair facility from the notification requirement set forth in 40-11-19(b)(1). [40-11-19(f)] Not sooner than (10) calendar days and not later than months after compliance with the notice requirements in 40-11-19, a repair facility may file an action for a petition to foreclose a lien against the motor vehicle in the magistrate court in the county where the motor vehicle is located using the form (MAG 40-01) provided by the Council of Magistrate Court Judges for such purpose accompanied by a filing fee of no more than $11.00. Any person bringing such action shall include page of this checklist along with all required attachments. [40-11-19.1(a)] The party bringing such action shall send a copy of the oath or affirmation page of the filed petition to any person known to be an owner/lienholder of the motor vehicle by certified mail or statutory overnight delivery, return receipt requested. The court shall accept electronic documentation as proof that such copy of the filed petition was sent and delivered as required. Included in such mailing shall be a copy of a standardized answer form (MAG 40-02) provided by the Council of Magistrate Court Judges for such purpose. [40-11-19.1(b)(1)] ---PAGE BREAK--- If the notice to owner(s) required under 40-11-19 was satisfied by advertisement, or the signed proof of receipt of a copy of the petition required to be sent has not been returned after (10) days of such mailing or has been returned as unclaimed, the party filing the petition shall, within (60) days, place an advertisement in a newspaper of general circulation or the legal organ where such action has been filed using the form (MAG 40-10) provided by the Council of Magistrate Court Judges for such purpose. The advertisement shall not be required if the return receipt required as proof of delivery has been returned with a notation that the notice of the filing of the petition has been refused. Such notice shall run in the newspaper once a week for two consecutive weeks. Such notice shall include instructions for how an owner may obtain the standardized answer form described above and shall be deemed as notice to any and all persons having an interest in or right affected by such petition and from any sale of the motor vehicle resulting therefrom. [40-11-19.1(b)(2)] If the identity of an owner which was previously not ascertained becomes known while an advertisement is run pursuant to 40-11-19.1(b)(2), the party filing a petition to foreclose shall send a copy of the filed petition pursuant to the same requirements set forth in 40-11-19.1(b)(1) within (10) days of obtaining such information. [40-11-19.1(b)(3)] Any owner may file an answer to the petition no later than (10) days after receipt by using the standardized answer form provided. If service is made by advertisement, an owner may file an answer no later than (10) days after the expiration of the required two-week advertisement. [40-11-19.1(c)] If no timely answer has been filed, the repair facility may seek to foreclose the lien through a judgment as provided in code section 15-10-43 by making such request in writing using form (MAG 40-11) provided by the Council of Magistrate Court Judges for such purpose and submitting to the court proof of required service of the petition. Unless providentially hindered, it shall be the duty of the judge to decide all motions for judgment submitted pursuant to 40-11-19.1 no later than (15) days from when such motion has been made. When a judgment is granted, the vehicle shall be considered abandoned and within days the court shall issue an order for the disposition of the motor vehicle as provided for in 40-11-19.2. A certified copy of such order shall be issued by the clerk of court for a fee of no more than $14.00. If no answer has been filed but the court finds that a petition fails to comply with the lawful requirements, a petition may be refiled for such action once within months of the issuance of denial of a judgment. [40-11-19.1(d)] If an answer is returned to the court, a trial shall be held within (10) days after receipt of such answer; provided, however, that such trial may be continued by the court for good cause shown by either party. [40-11-19.1(e)(1) If at the conclusion of the trial, foreclosure is granted, the court shall order the disposition of the motor vehicle as provided for in 40-11-19.2. A fee of no more than $14.00 will be charged for a certified copy of such order which shall be issued by the clerk of court. [40-11-19.1(e)(2)] The purchaser of a motor vehicle at an authorized sale shall receive a certified copy of the court order from the seller of the vehicle authorizing such sale. [40-11-19.3]