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Rule 4-508.  Guidelines for Ruling ona Motion to Waive Fees.

Intent:

To promotestatewide consistency in deciding motions to waive fees in civil cases and inthe expungement of criminal records in which the moving party is not aprisoner.

To promotestatewide consistency in deciding motions to waive fees in juvenile court casesin which the moving party is not a prisoner.

Nothing inthis rule should be interpreted as limiting the discretion of the judge todecide a motion to waive fees.

Applicability:

This ruleapplies to all civil and small claims cases and in the expungement of criminalrecords in which the moving party is not a prisoner.

This ruleapplies to all juvenile court cases in which the moving party is not aprisoner.

As used inthis rule “fee waiver” and similar phrases include waiving the fee in full orin part, as may be ordered by the judge.

Statement of the Rule:

(1)       The moving party must complete a motion to waivefees and a financial affidavit approved by the Judicial Council’s StandingCommittee on Court Forms. If requested by the court, the moving party mustprovide supporting documentation of the claims made in the affidavit. Injuvenile court, the minor or a minor’s parent, guardian or authorizedrepresentative may move to waive fees.

(2)       Upon the filing of a motion to waive fees andfinancial affidavit, the court, sheriff or any other provider of a serviceoffered by or through a government entity shall do what is necessary and properas promptly as if the fee had been fully paid.

(3)       A motion to waive fees may be decided withoutnotice to the other parties, requires no response, request to submit fordecision or hearing. The court will review the affidavit and make anindependent determination whether the fee should be waived. The court shouldapply a common sense standard to the information and evaluate whether theinformation is complete, consistent and true. Section 78A-2-304 requires aparty to pay a full or partial fee if the financial affidavit and any furtherquestioning demonstrate the party is reasonably able to pay a fee.

(4)       In general, a party is reasonably able to pay afee if:

(4)(A)       gross monthly income exceeds 100% of the povertyguidelines updated periodically in the Federal Register by the U.S. Departmentof Health and Human Services under the authority of 42 U.S.C. 9902(2).

(4)(B)       the moving party has liquid assets that can beused to pay the fee without harming the party’s financial position;

(4)(C)       the moving party has credit that can be used topay the fee without harming the party’s financial position;

(4)(D)       the moving party has assets that can beliquidated or borrowed against without harming the party’s financial position;

(4)(E)       expenses are less than net income;

(4)(F)       Section 30-3-3 applies and the court ordersanother party to pay the fee of the moving party; or

(4)(G)       inthe judge’s discretion, the moving party is reasonably able to pay some part ofthe fee.

(5)       If the moving party is represented by privatecounsel, the motion to waive fees may be granted in proportion to theattorney’s discount of the attorney fee. The moving party’s attorney mustprovide an affidavit describing the fee agreement and what percentage of theattorney’s normal, full fee is represented by the discounted fee.

(6)       A motion to waive fees should be ruled uponwithin ten days after being filed.

(6)(A)       If the fee is fully waived, the court, sheriffor any other provider of a service offered by or through a government entityshall do what is necessary and proper as promptly as if the fee had been fullypaid.

(6)(B)       If the fee is not fully waived, the court, sheriffor any other provider of a service offered by or through a government entitymay require payment of the fee before doing what is necessary and proper. Ifthe service has already been performed, the court, sheriff or service providermay do what is necessary and proper to collect the fee, including dismissal ofthe case.

(6)(C)       If the fee is not fully waived, the court shallnotify the party in writing of the fee amount, the procedure to challenge thefee, and the consequences of failing to pay the fee.

(6)(D)       If the motion is rejected because of a technicalerror, such as failure to complete a form correctly or to attach supportingdocumentation, the court shall notify the moving party, and the moving partymay file a corrected motion and affidavit within 14 days after being notifiedof the decision.

(7)       In addition to any statutory remedies, an ordergranting a fee waiver may be reviewed at any time if the court has jurisdictionof the case. If the court determines, after waiving a fee, that the movingparty is reasonably able to pay the fee, including from the proceeds of ajudgment, the court may modify its previous order. The court may allocate thefee among the parties under Utah Rule of Civil Procedure 54, Utah Code Section30-3-3, or as otherwise provided by law.

Effective May 1, 2019