(a)
(1)When an aggrieved person obtains either (A) a final judgment in a court of competent jurisdiction, including, but not limited to, a criminal restitution order issued pursuant to subdivision (f) of Section 1202.4 of the Penal Code or Section 3663 of Title 18 of the United States Code, or (B) an arbitration award that includes findings of fact and conclusions of law rendered in accordance with the rules established by the American Arbitration Association or another recognized arbitration body, and in accordance with Sections 1281 to 1294.2, inclusive, of the Code of Civil Procedure when applicable, and when the arbitration award has been confirmed and reduced to judgment pursuant to Section 1287.4 of the Code of Civil Procedure, against a defendant based upon the defendant’s
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(a)
(1)
When an aggrieved person obtains either (A) a final judgment in a court of competent jurisdiction, including, but not limited to, a criminal restitution order issued pursuant to subdivision (f) of Section 1202.4 of the Penal Code or Section 3663 of Title 18 of the United States Code, or (B) an arbitration award that includes findings of fact and conclusions of law rendered in accordance with the rules established by the American Arbitration Association or another recognized arbitration body, and in accordance with Sections 1281 to 1294.2, inclusive, of the Code of Civil Procedure when applicable, and when the arbitration award has been confirmed and reduced to judgment pursuant to Section 1287.4 of the Code of Civil Procedure, against a defendant based upon the defendant’s
fraud, misrepresentation, or deceit with intent to defraud, and arising directly out of any transaction in which the defendant, while licensed under this part, performed acts for which a real estate appraiser’s license was required, the aggrieved person may, upon the judgment becoming final, file an application with the bureau for payment from the Recovery Account, within the limitations specified in Section 11418, of the amount unpaid on the judgment that represents an actual and direct loss to the claimant in the transaction.
(2)
As used in this section, “actual and direct loss” excludes all of the following:
(A)
Punitive or exemplary damages.
(B)
Legal fees, attorney’s fees, court costs, or arbitration fees.
(C)
Nonpecuniary damages, such as
inconvenience, aggravation, and emotional distress.
(b)
The application shall be delivered in person, by certified mail, or electronically in a manner prescribed by the bureau, to an office of the bureau no later than one year after the judgment has become final.
(c)
The application shall be made on a form prescribed by the bureau, verified by the claimant, and shall include the following:
(1)
The name and address of the claimant.
(2)
If the claimant is represented by an attorney, the name, business address, and telephone number of the attorney.
(3)
The identification of the judgment, the amount of the claim and an explanation of its computation.
(4)
A detailed narrative statement of the facts in explanation of the allegations of the complaint upon which the underlying judgment is based.
(5)
(A)
Except as provided in subparagraph (B), a statement by the claimant, signed under penalty of perjury, that the complaint upon which the underlying judgment is based was prosecuted conscientiously and in good faith. As used in this section, “conscientiously and in good faith” means that no party potentially liable to the claimant in the underlying transaction was intentionally and without good cause omitted from the complaint, that no party named in the complaint who otherwise reasonably appeared capable of responding in damages was dismissed from the complaint intentionally and without good cause, and that the claimant employed no other procedural means contrary to the diligent prosecution of the complaint in order
to seek to qualify for the Recovery Account.
(B)
For the purpose of an application based on a criminal restitution order, all of the following statements by the claimant:
(i)
The claimant has not intentionally and without good cause failed to pursue any person potentially liable to the claimant in the underlying transaction other than a defendant who is the subject of a criminal restitution order.
(ii)
The claimant has not intentionally and without good cause failed to pursue in a civil action for damages all persons potentially liable to the claimant in the underlying transaction who otherwise reasonably appeared capable of responding in damages other than a defendant who is the subject of a criminal restitution order.
(iii)
The claimant employed no
other procedural means contrary to the diligent prosecution of the complaint in order to seek to qualify for the Recovery Account.
(6)
The name and address of the judgment debtor or, if not known, the names and addresses of persons who may know the judgment debtor’s present whereabouts.
(7)
The following representations and information from the claimant:
(A)
That the claimant is not a spouse of the judgment debtor nor a personal representative of the spouse.
(B)
That the claimant has complied with all of the requirements of this chapter.
(C)
That the judgment underlying the claim meets the requirements of subdivision (a).
(D)
A description of searches and inquiries conducted by or on behalf of the claimant with respect to the judgment debtor’s assets liable to be sold or applied to satisfaction of the judgment, an itemized valuation of the assets discovered, and the results of actions by the claimant to have the assets applied to satisfaction of the judgment.
(E)
That the claimant has diligently pursued collection efforts against all judgment debtors and all other persons liable to the claimant in the transaction that is the basis for the underlying judgment.
(F)
That the underlying judgment and debt have not been discharged in bankruptcy, or, in the case of a bankruptcy proceeding that is open at or after the time of the filing of the application, that the judgment and debt have been declared to be nondischargeable.
(G)
That the application was submitted to the bureau, as prescribed in subdivision (b), no later than one year after the underlying judgment became final.
(d)
The application form shall include detailed instructions with respect to documentary evidence, pleadings, court rulings, the products of discovery in the underlying litigation, and a notice to the applicant of their obligation to protect the underlying judgment from discharge in bankruptcy, to be appended to the application.
(e)
An application for payment from the Recovery Account that is based on a criminal restitution order shall comply with all of the requirements of this chapter. For the purpose of an application based on a criminal restitution order, the following terms have the following meanings:
(1)
“Complaint” means the facts of the
underlying transaction upon which the criminal restitution order is based.
(2)
“Judgment” means the criminal restitution order.
(3)
“Judgment debtor” means any defendant who is the subject of the criminal restitution order.