33-28-202. Real estate recovery account created; payments; pro rata distribution when account insufficient; service of process; joinder of account.

(a) If any person obtains a final judgment in any court of competent jurisdiction against any licensee on the grounds of fraud, willful misrepresentation, deceit or conversion of trust funds arising directly out of any transaction which occurred when the licensee was licensed by the commission and in which the licensee performed any real estate activity, that person, within one (1) year of termination of all proceedings, including appeals, may file with the commission a verified petition in the court in which the judgment was entered for an order directing payment out of the real estate recovery account in the amount of actual damages included in the judgment and unpaid, and that a writ of execution has been returned unsatisfied, but for not more than ten thousand dollars ($10,000.00).

(b) If the payment from the real estate recovery account is insufficient to pay in full the valid claims of all who have claims on file at any time the money in the account shall be distributed among them in the ratio that their respective claims bear to the aggregate of the valid claims or in a manner that a court deems equitable. Distribution of any monies shall be among the persons entitled to share the monies without regard to the order of priority in which their respective judgments were obtained or their claims were filed.

(c) Any licensee who cannot personally be served with a copy of a summons and complaint through reasonable diligence, shall be deemed to have appointed the director of the commission as his agent for service of process for purposes of actions filed against him pursuant to subsection (a) of this section. Service of process pursuant to subsection (b) of this section shall be made under the Wyoming Rules of Civil Procedure.

(d) In lieu of the petition under subsection (a) of this section for an order directing payment out of the real estate recovery account, a person filing an action against a licensee of a type described in subsection (a) of this section may join the real estate recovery account as a limited third party defendant and have judgment rendered directly against the account in the amount provided in subsection (a) of this section provided:

(i) Service of summons and complaint is made on the real estate commission;

(ii) The account may assert all defenses available to defendant licensee;

(iii) Plaintiff posts a bond in the amount of ten percent (10%) of the actual damages he seeks from the account to guarantee costs.

(e) The commission may defend any action against the fund on behalf of the fund and in the name of the defendant.

(f) Recovery against the bond required in paragraph (d)(iii) of this section shall be authorized by the court if it rules in favor of the commission on behalf of the fund.