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Rule 4-508.? Guidelinesfor Ruling on a 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 promote statewideconsistency in deciding motions to waive fees in juvenile court cases in whichthe 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)       Themoving party must complete a motion to waive fees and a financial affidavitapproved by the Judicial Council?s Standing Committeeon Court Forms. The moving party must provide supporting documentation of theclaims made in the affidavit. In juvenile court, the minor or a minor?s parent,guardian or authorized representative may move to waive fees.

(2)       Uponthe filing of a motion to waive fees and financial affidavit, the court,sheriff or any other provider of a service offered by or through a governmententity shall do what is necessary and proper as promptly as if the fee had beenfully paid.

(3)       Amotion to waive fees may be decided without notice to the other parties,requires no response, request to submit for decision or hearing. The court willreview the affidavit and make an independent determination whether the feeshould be waived. The court should apply a common sense standard to theinformation and evaluate whether the information is complete, consistent andtrue. Section 78A-2-304 requires a party to pay a full or partial fee if thefinancial affidavit and any further questioning demonstrate the party isreasonably able to pay a fee.

(4)       Ingeneral, 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 the judge?s discretion, the moving party is reasonablyable to pay some part of the fee.

(5)       Ifthe moving party is represented by private counsel, the motion to waive feesmay be granted in proportion to the attorney?s discount of the attorney fee.The moving party?s attorney must provide an affidavit describing the feeagreement and what percentage of the attorney?s normal, full fee is representedby the discounted fee.

(6)       Amotion to waive fees should be ruled upon within ten days after being filed.

(6)(A)       Ifthe fee 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)       Ifthe fee 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)       Ifthe fee is not fully waived, the court shall notify the party in writing of thefee amount, the procedure to challenge the fee, and the consequences of failingto pay the fee.

(6)(D)       Ifthe motion is rejected because of a technical error, such as failure tocomplete a form correctly or to attach supporting documentation, the courtshall notify the moving party, and the moving party may file a corrected motionand affidavit within 14 days after being notified of the decision.

(7)       Inaddition to any statutory remedies, an order granting a fee waiver may bereviewed at any time if the court has jurisdiction of the case. If the courtdetermines, after waiving a fee, that the moving party is reasonably able topay the fee, including from the proceeds of a judgment, the court may modifyits previous order. The court may allocate the fee among the parties under UtahRule of Civil Procedure 54, Utah Code Section 30-3-3, or as otherwise providedby law.

Effective January 1, 2019