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Rule 4-508. Guidelines for ruling on amotion to waive fees.

Intent:

To promotestatewide consistency in deciding motions to waive fees in civil cases and inthe expungement of criminal records in which themoving party is not a prisoner.

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

Nothing in thisrule should be interpreted as limiting the discretion of the judge to decide amotion to waive fees.

Applicability:

This ruleapplies to all civil and small claims cases and in the expungementof criminal records 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 in thisrule ?fee waiver? and similar phrases include waiving the fee in full or inpart, as may be ordered by the judge.

Statement ofthe Rule:

(1) The movingparty must complete a motion to waive fees and a financial affidavit approvedby the Board of District Court Judges or, in the juvenile court, by the Boardof Juvenile Court Judges. The moving party must provide supportingdocumentation of the claims made in the affidavit. In juvenile court, the minoror a minor?s parent, guardian or authorized representative may move to waivefees.

(2) Upon thefiling of a motion to waive fees and financial affidavit, the court, sheriff orany other provider of a service offered by or through a government entity shalldo what is necessary and proper as promptly as if the fee had been fully paid.

(3) A motion towaive fees may be decided without notice to the other parties, requires noresponse, request to submit for decision or hearing. The court will review theaffidavit and make an independent determination whether the fee should bewaived. The court should apply a common sense standard to the information andevaluate whether the information is complete, consistent and true. Section 78A-2-304 requires a party to pay a full or partial fee ifthe financial affidavit and any further questioning demonstrate the party isreasonably able to pay a fee.

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

(4)(A) grossmonthly income exceeds 100% of the poverty guidelines updated periodically inthe Federal Register by the U.S. Department of Health and Human Services underthe authority of 42 U.S.C. 9902(2).

(4)(B) themoving party has liquid assets that can be used to pay the fee without harmingthe party?s financial position;

(4)(C) themoving party has credit that can be used to pay the fee without harming theparty?s financial position;

(4)(D) themoving party has assets that can be liquidated or borrowed against withoutharming the party?s financial position;

(4)(E) expensesare less than net income;

(4)(F) Section30-3-3 applies and the court orders another party to pay the fee of the movingparty; or

(4)(G) in thejudge?s discretion, the moving party is reasonably able to pay some part of thefee.

(5) If themoving party is represented by private counsel, the motion to waive fees may begranted in proportion to the attorney?s discount of the attorney fee. Themoving party?s attorney must provide an affidavit describing the fee agreementand what percentage of the attorney?s normal, full fee is represented by thediscounted fee.

(6) A motion towaive fees should be ruled upon within ten days after being filed.

(6)(A) If thefee is fully waived, 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.

(6)(B) If thefee is not fully waived, the court, sheriff or any other provider of a serviceoffered by or through a government entity may require payment of the fee beforedoing what is necessary and proper. If the service has already been performed,the court, sheriff or service provider may do what is necessary and proper tocollect the fee, including dismissal of the case.

(6)(C) If thefee is not fully waived, the court shall notify the party in writing of the feeamount, the procedure to challenge the fee; the consequences of failing to paythe fee.

(6)(D) If themotion is rejected because of a technical error, such as failure to complete aform correctly or to attach supporting documentation, the court shall notifythe moving party, and the moving party may file a corrected motion andaffidavit within 14 days after being notified of the decision.

(7) In additionto any statutory remedies, an order granting a fee waiver may be reviewed atany time if the court has jurisdiction of the case. If the court determines,after waiving a fee, that the moving party is reasonably able to pay the fee,including from the proceeds of a judgment, the court may modify its previousorder. The court may allocate the fee among the parties under Utah Rule ofCivil Procedure 54, Utah Code Section 30-3-3, or as otherwise provided by law.