32-1136. Statute of limitations; recovery from fund

A. An action for a judgment that may subsequently result in an order for collection from the fund shall not be commenced later than two years from the date of the commission of the act by the contractor that is the cause of the injury or from the date of occupancy. When any injured person commences action for a judgment that may result in collection from the fund, the injured person shall notify the registrar in writing to this effect at the time of the commencement of the action. The registrar at any time may intervene in and defend any such action.

B. When any injured person recovers a valid judgment against any residential contractor for such act, representation, transaction or conduct that is in violation of this chapter or the rules adopted pursuant to this chapter, the injured person, on twenty days' written notice to the registrar, may apply to the court for an order directing payment out of the fund, of the amount unpaid on the judgment, subject to the limitations stated in this article. If the injured person failed to give notice to the registrar at the time of commencement of the action as required by subsection A of this section, the court may direct payment out of the fund on receipt of a consent to payment signed on behalf of the registrar. If the injured person has given notice to the registrar as required by subsection A of this section, the court may direct payment out of the fund either on receipt of a consent to payment signed on behalf of the registrar or, in the absence of any written consent, after the notice period required by this subsection. If the court receives written objections by the registrar, the court shall not direct payment from the fund without affording the registrar a reasonable opportunity to present and support his objections.

C. The injured person shall not be the spouse of the residential contractor or the personal representative of the spouse of the residential contractor.

D. The court shall proceed on an application in a summary manner and, on the hearing, the injured person is required to show that he:

1. Has given notice as required by subsections A and B of this section.

2. Has obtained a judgment that has become final, as provided in subsection B of this section, stating the amount and the amount owing at the date of the application.

3. Has proceeded against any existing bond covering the residential contractor and has not collected on such bond an amount of thirty thousand dollars or more.

4. Is not aware of any personal or real property or other assets of the debtor that can be applied in satisfaction of the judgment.

E. The court shall make an order directed to the registrar requiring payment from the fund of whatever sum it finds to be payable on the claim, in accordance with this section, if the court is satisfied on the hearing of the truth of all matters required to be shown by the injured person by subsection D of this section. The recovery limits established under this article apply to all judgments awarded after September 1, 2002. If the injured person has recovered a portion of his loss from sources other than the fund, the registrar, if the award is made pursuant to section 32-1154, or the court shall deduct the amount recovered from other sources from the amount of actual damages suffered pursuant to section 32-1132, subsection A and direct the difference, not to exceed thirty thousand dollars, to be paid from the fund.

F. On receipt of a certified copy of the order specified in subsection E of this section, the registrar may authorize payment from the residential contractors' recovery fund even if an appeal has been instituted but not completed.