Attachment Trustee Process & Execution

Attachments, Executions and Trustee Process Presented by Michael D. Prosser, Assistant Clerk-Magistrate, Worcester District Court On behalf of the Education Committee of the Association of Magistrates and Assistant Clerk-Magistrates of the Trial Court of the Commonwealth of Massachusetts

In General “ Attachment is a prejudgment remedy available to a plaintiff suing for money damages and used to encumber defendant’s property during the pendency of a lawsuit. Procedure for attachment is governed by G.L. c. 223 and by Mass. R. Civ. P. Rule 4.1” ( Massachusetts Collection Law , 2 nd Ed. , §4.1, Jordan L. Shapiro, Marc G. Perlin, and John M. Connors).

Note: There are circumstances where a plaintiff may be able to obtain attachment post -judgment. The Appeals Court has recognized that attachment may be available after judgment during the pendency of an appeal: “Parties may request from a trial court judge an attachment of real property or the grant of a security interest in personal property to protect a judgment pending appeal.” Borne v. Haverhill Golf and Country Club, Inc. 58 Mass. App. Ct. 306, 326, 791 N.E.2d 903 (2003).

Reasons for attachment to obtain security for a money judgment; to maintain a priority over subsequent creditors; and to make settlement more likely. (Shapiro, Perlin, and Connors, §4.2)

Requirement of Judicial Hearing on Attachment Due Process Requirements of the 14 th Amendment require notice and opportunity to be heard in opposition to the attachment. Where the court allows an ex-parte attachment, the defendant may request a prompt “post-seizure” hearing. (Rule 4.1(g))

Attachment may not be made to obtain personal jurisdiction Seizure by attachment of a defendant’s property to obtain quasi in rem jurisdiction over a defendant who would otherwise not meet the “minimum contacts” test for personal jurisdiction is unconstitutional. ( Shaffer v. Heitner , 433 US 186 (1977)) There is no requirement that there be a relationship between the property to be attached and the underlying cause of action where there is in personam jurisdiction over the defendant. ( Hasbro, Inc. v. Serafino , 958 F. Supp. 19 (D. Mass. 1997))

General vs. Limited Attachment

General: When an order for attachment for real estate does not otherwise specify, all of the defendant’s real estate in the County or Registry District where the writ is recorded will be subject to attachment, up to the amount allowed by the court. Limited: A court may allow attachment of only a specific parcel or parcels of real estate. The attachment may be specified by town, address, or Book and Page number.

How to Obtain Attachment (Shapiro, Perlin, and Connors, §§ 4:46-4:68)

Complaint Required Attachment is not available until a civil action has been commenced (Rule 4.1(a))

Necessary Documents for Attachment Complaint must be filed (although attachment may not need to be sought at time of filing, see Shapiro, Perlin, and Connors § 4:57); Motion seeking approval of attachment; Supporting Affidavit; Notice of Hearing; Writ of Attachment (additional writs if attaching property in more than one county). Finding and Order of Attachment.

Motion Motion required for attachment 4.1(c), third paragraph). Motion should include a request for an attachment for a specified amount of money. Motion must be signed by plaintiff’s attorney and include the attorney’s address and phone number.

Affidavit Shall be upon the affiant’s own knowledge, information and belief. If matters are on affiant’s belief only, Rule 4.1(h) requires a statement that the affiant believes the information to be true. Attorney representing credit extenders should have affidavit signed by keeper of records or person in charge of overseeing customer accounts.

Affidavit Must meet standard for affidavits generally: Must consist of written statement signed by the affiant Sworn to before an officer authorized to administer an oath (such as notary public) or signed under the pains and penalties of perjury.

Affidavit Affidavit should contain sufficient facts to allow the court to conclude that there is reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant that could be available to satisfy the judgment

Affidavit in Collection Cases Must contain statements that: the affiant has examined the accounts and records of the plaintiff, that the account is in arrears, that the affiant reasonably expects the plaintiff to recover judgment, that the affiant is not aware of any defense that the defendant may have to the claim, and that the affiant is not aware of any liability insurance available to cover the claim.

Notice of Hearing Mass. R. Civ. P. do not require any particular form for notice. Purpose of notice: to inform defendant of date, time, and location of hearing on plaintiff’s request for an attachment.

Notice of Hearing Notice must inform the defendant that by appearing to be heard on the motion for approval of attachment he will not thereby submit himself to the jurisdiction of the court nor waive service of the complaint and summons upon him in the manner provided by law (Mass. R. Civ. P. 4.1(c), fourth paragraph).

Notice of Hearing In District Court, plaintiff’s attorney may mark up motion for hearing date (recommended to consult with Clerk-Magistrate to ensure it is scheduled for a day civil motions are heard). In Superior Court, plaintiff’s attorney must follow process outlined for motions in Rule 9A of the Rules of the Superior Court.

Notice of Hearing If notice of hearing served at same time as summons and complaint, plaintiff should ensure that service is proper if the defendant is an individual or corporation. (See Mass. R. Civ. P. 4(d)(1) and (2))

Notice of Hearing Plaintiff should ensure that notice is served with enough advance notice to defendant to comply with Mass. R. Civ. P. 6(c), which requires seven days advance notice of hearing on a motion (10 days if served by mail under Rule 6(d)).

Return of Service Counsel should make sure the officer’s return of service indicates that the motion and notice of hearing were served on the defendant in addition to the complaint and summons.

The Hearing for the Attachment

Plaintiff’s Burden The burden on the plaintiff at the hearing is to show that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount sought to be attached over and above any liability insurance shown by the defendant to be available.

How Tough Is It? A federal court, interpreting the Maine Rules of Civil Procedure, declared that the standard was “a relatively low hurdle to clear,” and is satisfied “if an asserted claim supported by affidavit is not of such insubstantial character that its validity so clearly appears as to foreclose a reasonable possibility of recovery.” ( Hilton Shea, Inc. v. DMR Yachts, Inc . 750 F.Supp. 35 (D. Me. 1990))

Conduct of Hearing Handbook of Civil Procedure in the Massachusetts District Court, 3 rd Ed., Mark G. Perlin and John M. Connors (2003), §5.15-5.18. Plaintiff may call witnesses and elicit testimony, including the opposing party.

Defendant’s Opposition Defendant could produce proof of insurance sufficient to satisfy any judgment against him. Defendant may produce affidavits (or elicit testimony at hearing) asserting facts that may call into serious question the “reasonable likelihood” of plaintiff’s success on the claim.

Defendant’s Opposition Defendant could assert existence of defenses or counterclaims that could serve to eliminate any recovery by the plaintiff.

Defendant’s Opposition Defendant may appeal to court’s discretion to refuse to authorize attachment due to: Defendant’s sound financial position shows no need for an attachment; Issuance of attachment would create an “undue hardship” on the defendant.

Defendant’s Opposition See “How to Defeat an Attachment of Property,” 22 Mass. Lawyers’ Weekly 179 (1993) by Mark G. Perlin and Letters to the Editor, “Debating Discretion to Deny Prejudgment Attachment,” 22 Mass. Lawyers’ Weekly 335 (1993).

Ex Parte Hearing An ex parte hearing is done by request of plaintiff via motion and affidavit at time of filing of complaint. The plaintiff must specifically request that the motion be heard ex parte and must (pursuant to Mass. R. Civ. P.4.0(f)) include facts in the affidavit in support of at least one of the following:

Ex Parte Hearing The person of the defendant is not subject to the jurisdiction of the court in the action; There is a clear danger that the defendant, if notified in advance of attachment of property, will convey it, remove it from the state, conceal it; or There is immediate danger that the defendant will damage or destroy the property to be attached.

Ex Parte Hearing Motion requesting ex parte attachment must also be accompanied by a “certificate” by the plaintiff or plaintiff’s attorney indicating the amount of any liability insurance that he knows or has reason to believe will be available to satisfy any judgment against the defendant in the action.

Additional Obligation for Massachusetts Attorneys Massachusetts Rules of Professional Conduct (Supreme Judicial Court Rule 3:07) Rule 3.3(d) provides that “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse ” (emphasis added).

Defendant Entitled to Later Hearing to Dissolve or Modify Attachment Mass. R. Civ. P. 4.1(g) No time limit on when hearing must be requested, but defendant must give plaintiff at least two days notice. Appearance at hearing by defendant does not constitute submission to the court’s jurisdiction.

Defendant Entitled to Later Hearing to Dissolve or Modify Attachment Burden is on plaintiff to justify the finding in the ex parte order that is being challenged by the defendant. Defendant’s motion should be accompanied by an affidavit if factual matters form the basis for the motion.

The Form of the Writ of Attachment Pursuant to Mass. R. Civ. P. 4.1(b) the writ must: Bear the signature or facsimile signature of the clerk; Be under the seal of the court; Be in the name of the Commonwealth; Contain the name of the court; Contain the names and residences (if known) of the parties; Contain the date of the complaint; Bear teste of the first justice of the court to which it is returnable who is not a party;

The Form of the Writ of Attachment Pursuant to Mass. R. Civ. P. 4.1(b) the writ must: State the name and address of the plaintiff’s attorney, if any; Be directed to the sheriffs of the several counties or their deputies, or any other person duly authorized by law; Command the person named (in accordance with the preceding provision) to attach the real estate or personal property of the defendant to the value of an amount approved by the court, and to make due return of the writ with his doings thereon; State the name of the justice who entered the order approving the attachment and the date thereof.

The Form of the Writ of Attachment Attorneys should take care to have the defendant’s name appear on the writ of attachment exactly as it appears on the deed or probate documents by which the owner of the land to title to the property to be attached.

The Form of the Writ of Attachment Each district court is required under Rule 4.1(c) and District Court Administrative Regulation No. 4-76 to have official form for the writ of attachment available. Attorneys merely have to fill in the blank spaces provided to conform with the requirements of the rule.

Note: Most district court judges strongly prefer that the attorney seeking attachment not fill in the blank space with the amount of the attachment. It is common practice that the judge fill in that amount with the amount he/she allows as an attachment, which may be different than the amount sought.

Note: Although the rule requires only the name of the allowing judge and not a signature (in fact the Rule specifically requires that the writ be “filled out” by the plaintiff, some Registers of Deeds will not accept for recording a writ that is not signed by the judge.

Note: Some Registers have been known to require that the plaintiff also file a copy of the Finding and Order, which stays in the clerk’s file. Plaintiffs may wish to have a copy of the Finding and Order made by the clerk if the local Register requires it.

Note: Attorneys seeking to attach property in more than one county should have additional writs prepared for the judge’s approval, or in the alternative seek true attested copies of the original from the clerk

Thirty Day Requirement The attachment must be made within thirty days of the court order of approval. (Rule 4.1(c)) If attachment cannot be made within 30 days, the plaintiff may seek a new or additional order of attachment. This may be done either before or after the 30 day period has expired. (Rule 4.1(e))

Property Subject to Attachment All property subject to seizure on execution is subject to attachment pursuant to G.L. c. 223, § 42. For a list of property exempt from execution see G.L. c. 235, § 34.

Notice to Defendant of Attachment When an attachment is made subsequent to the service of the summons and complaint Rule 4.1(c) requires that a copy of the writ with the officers return be “promptly” served on the defendant.

Notice to Defendant of Attachment Notice is by manner prescribed in Rule 5 (first class postage is acceptable, Rule 5(b)). Service is complete upon mailing. Service may be by plaintiff’s attorney and need not be by officer making service.

Personal Property Attaching officer seizes property and holds in his custody during the pendency of the suit. An officer serving a writ of attachment may not break down the door of a dwelling house to attach the owner’s goods. ( Isley v. Nichols , 29 Mass. 270(1832)) An officer is entitled to break down the door to a warehouse to attach a defendant’s goods. ( Platt v. Brown , 33 Mass. 553 (1835))

Bulky Goods When the personal property is such that it cannot be moved after attachment, G.L. c. 223, § 50 allows the officer to leave the goods in place. He must within three days submit a certified copy of the writ of attachment, with his return, to the Secretary of State in the same manner as one would perfect a security interest under U.C.C. Article 9. If the attached goods are fixtures, then the certified copy of the writ and return should be made to the appropriate Register of Deeds.

“ Keeper” Attachments The process server may put a “keeper” over the goods, but only if the plaintiff has filed and request and affidavit explaining why the keeper is necessary and the court has specifically allowed it. (G.L. c. 223, § 48)

Perishables Sale may be made of attached personal property upon request of plaintiff or defendant where: 1. The property is liable to perish, waste, or greatly decrease in value by keeping; or 2. The property cannot be kept without great and disproportionate expense. (See G.L. c. 223, §§ 87, 88.)

Personal Property with Security Interest If a plaintiff attaches personal property which is subject to a mortgage, lien or other security interest the securing party may, within a reasonable amount of time, make a demand to the plaintiff for the amount of the security interest. The attaching creditor must pay the secured creditor the amount of the security interest within 10 days.

Personal Property with Security Interest If the plaintiff wins her case the amount of the security interest paid may be deducted from the sale of the property upon execution. If the plaintiff loses the lawsuit, she may retain the property until reimbursed by the defendant for the amount the plaintiff had to pay the secured creditor. This applies only to mortgaged personal property , not real estate. (See G.L. c. 223, §§ 74-83A)

Plaintiff Posting Security to Attaching Officer If there is reasonable doubt of the ownership of personal property or as to its liability to be attached, the attaching officer may require the plaintiff to post a bond to indemnify the officer. This may be done either before or after attachment has been made.

Plaintiff Posting Security to Attaching Officer If the plaintiff fails to post the required bond after request, the officer may refuse to attach the property or release property previously attached. The premium paid by the plaintiff to obtain the bond may be added as costs to be assessed against the defendant if the plaintiff prevails in the lawsuit. See G.L. c. 223, § 45A)

Real Property Attachment on real estate must be recorded at the Registry of Deeds in the county where the property is located in order to be effective against third parties. (G.L. 223, § 63) In the case of registered land the attorney should provide the attaching officer with the number of the Certificate involved, with volume and page number. Attachment must be recorded in the registered land section or it will have no effect on registered land (G.L. c. 185, §§ 58 and 78)

Real Property When a defendant has had property attached upon whom no service has been made (ex parte attachment), he must get notice of the action in which the action was sought within 60 days of the commencement of the action.

Real Property Rule 4(j) issue? Attachment is dissolved if not complied with. Court may extend 60 day period. G.L. c. 223, § 115A.

When is Attachment Effective? Attachment is “made” when officer endorses on the writ that he has attached defendant’s right, title, and interest to the real estate. To be “effective” on the date the attachment is made it must be recorded within 3 days of when it was made. Otherwise it is effective on the date recorded. A good faith purchaser for value is not bound by the three day rule and the attachment is only effective against him after it is actually recorded. (See G.L. c. 223, §§ 62-70.)

Fraudulently Conveyed Land Covered by different process laid out in G.L. c. 223, §67.

Duration of Real Estate Attachment Six years unless dissolved sooner. If litigation still pending at end of 6 year period plaintiff should send request to Register that attachment be “brought forward” upon the attachment books. May be brought forward for subsequent six year periods. (See G.L. c. 223, § 114A)

Duration of Real Estate Attachment Attachment is preserved for 30 days after the date on the execution unless sooner dissolved. G.L. c. 223, § 59. Compare to G.L. c. 236, § 4 which has a 40 day requirement for recording the execution and the sheriff’s memorandum stating the “execution is in his hands for the purpose of taking the land of the defendant….” The 30 day requirement corresponds to the requirement to levy the execution; The 40 day requirement to recording the execution and memorandum.

Duration of Real Estate Attachment If the 30 and 40 day requirements are not met the lien of attachment will not be preserved although a new lien will be created by the levy of the execution and its recording (with sheriff’s memo). The lien would lose priority to any encumbrances filed before the execution, even those filed after the original attachment. (See Shapiro, Perlin, and Connors, Massachusetts Collection Law, 2 nd Ed. §§4:93-4:94 and 9:54-9:57.)

What is an execution? A process issued from a court in which a judgment has been rendered, in a civil action, for the purpose of carrying the judgment into effect. (Perlin and Connors, Handbook of Civil Procedure in the District Court, 3 rd Ed., §10.27, n. 138 quoting Moeder v. Tolczyk , 2001 Mass. App. Div. 69) It “equip[s] the court with all the traditional flexibility of a court of equity” to enforce a money judgment. ( Geehan v. Trawler Arlington, Inc ., 371 Mass.815, 359 N.E.2d 1276 (1977))

What is an execution? Rule 69 empowers the Superior Court to enforce a money judgment against assets not reachable by execution, “without insisting on a separate (equitable) creditor’s bill”. (Geehan) Geehan rationale may now be applicable to District Court since adoption of the one-trial system. District Courts could order satisfaction of judgments against property not subject to execution without separate reach and apply action. Such “equitable” orders would be enforceable by contempt action under Rule 65.3. (See Perlin and Connors, § 10.27.)

What is an execution? Execution may not be used to seize property in the hands of a third person (trustee execution). “ Regular” execution may not be levied on a bank account ( Gabovitch v. Lundy , 584 F2d 559 (1978, CA1 Mass.) (interpreting Massachusetts law). A creditor who improperly uses a writ of execution in this manner may be subject to liability for unfair debt collection practices (Shapiro, Perlin, and Connors, Collection Law, 2 nd Ed ., §9:70, n.79).

When does it issue? After judgment. After period for appeal has expired with no appeal taken (G.L. c. 235, § 16 and Mass. R. Civ. P. 62(a)).

When does it issue? No execution may be taken out during pendency of appeal (Mass. R. Civ. P. 62(a) and (d)). Postjudgment attachment is an option however. The Appeals Court has recognized that attachment may be available after judgment during the pendency of an appeal: “Parties may request from a trial court judge an attachment of real property or the grant of a security interest in personal property to protect a judgment pending appeal.” (Borne v. Haverhill Golf and Country Club, Inc. 58 Mass. App. Ct. 306, 326, 791 N.E.2d 903 (2003))

When does it issue? In the District Court (only) execution may not issue on a judgment by default for 10 days (Rule 62(a)). There is no comparable language applicable to the Superior Court. District Court language taken from now-repealed District/ Municipal Courts Rules of Civil Procedure. Possibly due to high default rate in District Court.

When does it issue? May require filing of certain papers (Dist./Mun. Cts. Supp. R. Civ. P. 110) when action is founded upon promissory note, check or any negotiable instrument. Original note must be filed with clerk prior to issuance of execution (if lost an affidavit and motion to the court to use a copy).

When does it issue? If action is founded on an out of state judgment will need a “transcript of the record of the judgment” before execution will issue. If action is founded on a judgment issued by another Massachusetts court will need a certificate of judgment before execution will issue. (G.L. c. 235, § 14)

When does it issue? Must be requested within one year of the time the party was first entitled to its issuance. (G.L. c. 235, § 17) If party does not make a timely request then can seek it only through the allowance of a motion, which appears to be entirely discretionary.

Interest Execution should include interest from the time the judgment issued until the day the execution issues. The interest is at the same rate as the prejudgment interest and is on the entire judgment total (including prejudgment interest, punitive damages such as 93A double or treble damages, costs, and attorney’s fee). (G.L. c. 235, § 8) Interest continues to accrue on the execution after it is issued until it is satisfied at the same rate as prejudgment interest. (G.L. c. 235, § 8, Mass. R. Civ. P. 54(f))

Levy of Execution on Personal Property Creditor attorney should deliver the execution and a letter of instruction specifically informing the levying officer of the location of the property to be seized and a description of it, and further requesting the officer to levy on the property and sell it at public auction.

Levy of Execution on Personal Property Without specific direction of what property to seize (a general “seize any non-exempt property of the debtor) it is likely the officer will not do anything more than make a demand for payment upon the debtor since in that instance the officer would have liability for any property wrongfully seized. Where the officer seizes property upon a specific direction of the creditor, the law will imply a promise by the creditor to indemnify the officer from any liability for wrongful seizure. (Shapiro, Perlin, and Connors, Collection Law, 2 nd Ed., §9:16 (citing Russell v. Walker , 150 Mass. At 533))

Levy of Execution on Personal Property Officer may require creditor to post a bond to protect against wrongful seizure, as authorized in G.L. c. 235, § 35. Levy is made when the officer takes possession of the property, or takes a position whereby he can exercise dominion and control over it. The officer must keep the property at least four days before selling it, but must be sold within 14 days, unless the value of the property is over $300 and either party has requested a newspaper advertisement in which case it must be sold within 30 days.

Levy of Execution on Personal Property An officer serving an execution may not break down the door of a dwelling house to attach the owner’s goods ( Isley v. Nichols , 29 Mass. 270(1832)). An officer is entitled to break down the door to a warehouse to attach a defendant’s goods ( Platt v. Brown , 33 Mass. 553 (1835)), which implies that the same could be done to levy an execution (although the use of force is certainly something that should be used as sparingly as possible). For a list of property exempt from levy on execution see: G.L. c. 235, § 34.

Notice of Sale of Personal Property Seized on Execution Must be posted in a public place at least 48 hours before sale or published as an advertisement in the newspaper where the debtor last resided . (G.L. c. 235, §37) If property is valued over $300.00 either the creditor or debtor may request that notice be by advertisement instead of posting and the officer must comply. (G.L. c. 235, § 38)

Notice of Sale of Personal Property Seized on Execution No statutory requirement that there be notice to debtor of time and place of sale, but probably required by due process clause of the Fourteenth Amendment. Seizing officer may adjourn the sale for up to seven days, and may do it over and over until the sale is completed. The officer must give notice of the adjournment by a public declaration at the time and place where the sale was to be. (G.L. c. 235, § 39)

Notice of Sale of Personal Property Seized on Execution Failure to sell the property within required time frame results in dissolution of the levy and the property may be seized by another creditor. Debtor may redeem the property any time before the sale by satisfying the execution. Sale to be by public auction to highest bidder. Any residue left after the execution is satisfied and the costs of the sale are paid is to be returned to the debtor.

Levy of Execution on Real Property All real property of debtor subject to execution (exception of homestead estate under G.L. c. 188) whether fee interest, a remainder or reversion. All land fraudulently conveyed to defeat, defraud or delay creditors, or held in a trust for the debtor and whereby the debtor is entitled to a present conveyance may be taken on execution. (G.L. c. 235, § 1)

Levy of Execution on Real Property Mortgaged real estate may be levied upon, but will only apply against the debtor’s equity in the real estate. Attorneys should investigate current mortgage to see if debtor’s equity is large enough to warrant a levy with sale, or if the officer should levy and “suspend” completion of the levy (done by written request of the debtor). The levy may only be suspended for six years, but may be “brought forward” in the same way a real estate attachment can and extended for a further six year period.

Four Steps in Enforcing Execution Against Real Estate Levy of execution by officer by completing sheriff’s memorandum; Recording execution and sheriff’s memorandum in Registry of Deeds; Notice to debtor of levy (personal service or last and usual); Completion of levy by sale, set-off, or suspension.

What is a “sheriff’s memorandum” and what is the distinction between the “levy” on the property and the recording of the execution and sheriff’s memo? G.L. c. 236, § 4 states in part that the property being seized must have the execution filed with the Register of Deeds in the county where the land lies along “with a memorandum thereon that the execution is in his hands for the purpose of taking the land of the defendant, and no such taking shall be valid against a purchaser in good faith, for value and without notice, before such copy is deposited.”

What is a “sheriff’s memorandum” and what is the distinction between the “levy” on the property and the recording of the execution and sheriff’s memo? Essentially it is just a memo from the seizing officer that he has levied the execution and seized the land of the debtor. When the officer completes this the “levy” has been made against the land. It is a separate act from the recording of the execution and memorandum with the Register of Deeds. (See Hall v. Crocker , 44 Mass. 245 (1841)) The “Levy” must be made within 30 days from issuance of execution. G.L. c. 223, § 59. The creditor’s rights to the property attach at the time of the levy, subject to its completion by recording.

What is a “sheriff’s memorandum” and what is the distinction between the “levy” on the property and the recording of the execution and sheriff’s memo? The recording of the execution and sheriff’s memo with the Register of Deeds must be done within 40 days. (G.L. c. 236, § 4) As a practical matter the levy and recording are most often done contemporaneously. Note that the seizure is not valid as against a good faith purchaser even if the levy has been made if it has not yet been recorded.

Sale of Land Debtor must have notice from officer on time and place of sale at least 30 days before, and notice must be posted in a public place in the town where the land lies and in two adjoining towns. (G.L. 236, § 28) Officer must publish “notice once in each of three successive weeks…in a newspaper published in a town where the land lies.” (G.L. c. 236, § 28)

Sale of Land Seizing officer may adjourn the sale for up to seven days, and may do it over and over until the sale is completed. The officer must give notice of the adjournment by a public declaration at the time and place where the sale was to be. (G.L. c. 236, § 29) If a sale has been advertised and the debtor agrees to settle the execution, the creditor attorney should ask the sheriff to adjourn the sale from week to week rather than suspend the levy (no need to advertise again). For sheriff’s fee for adjournment see: G.L. c. 262, § 8.

Sale of Land After making sale to highest bidder and receiving payment, the sheriff should convey the debtor’s interest by a sheriff’s deed. (G.L. c. 236, § 27) If execution, with the sheriff’s return, has not been returned to the issuing court then the sheriff’s deed is invalid. (Shapiro, Perlin and Connors, § 9:47)

Sale of Land Even when all statutory requirements have been met, the title from an execution sale will not be marketable without a subsequent judicial proceeding confirming all requirements have been met. This may be done by a civil action under G.L. c. 237 or a Land Court registration proceeding. After the sale, if the execution has been satisfied and the costs of the sale paid, the remainder of the proceeds should be given to the debtor, unless there is another lien by attachment by another creditor. Debtor may redeem the land within one year of sale.

Return of Execution An execution must be returned to the issuing court within ten days after satisfaction or discharge. If execution is not returned in timely manner the judgment debtor, “or any person in his behalf,” motion to the court for an order of the return of the execution and the endorsement of satisfaction on it (full or partial). The return of an execution, satisfied in full or part, should be entered upon the docket of the case. G.L. c. 235, §17

What is it? Trustee Process is a form of attachment; the procedure by which a creditor can attach property of a debtor while it is in the possession of a third person, so as to secure it for satisfaction of an eventual judgment.

What is normally “seized” by trustee process? Checking and Savings Accounts Wages Accounts Receivable

When is trustee process prohibited? Actions for Recovery of Specific Goods and Chattels Malicious Prosecution Slander and Libel Assault and Battery Mass. R. Civ. P. 4.2(a) Personal property exempt from “regular” attachment is also exempt from trustee attachment

When is trustee process prohibited? Certain government benefits (veterans’ benefits, social security benefits, SSI , AFDC, unemployment, workers’ compensation, pension benefits, IRA accounts, state lottery prizes, and benefits characterized as “public assistance” benefits) A bank account containing money from one of these “protected sources” of income cannot be attached A sheriff or other officer who has collected money or seized goods on execution cannot be adjudicated a trustee of that money or goods

Is a Bond Required to Posted by the Plaintiff? G.L. c.246, §1 requires bond to be posted when the action seeks more than $1,000 Exceptions to bond requirement when action is: Upon a judgment; Upon a contract for personal services; For goods sold and delivered; For money due under a contract in writing; or To recover damages on account of the operation of a motor vehicle not registered in the Commonwealth

Venue: No person may be required to answer as a trustee in a county other than that in which he lives or has a usual place of business, G.L. c. 246, §4. If an action is brought in a judicial district because of the location of the trustee, where the venue would otherwise be improper (neither party having a residence or place of business in that judicial district or an adjacent district, (G.L. c. 223, §2) the court may on motion of any party transfer the action to any district court that would have correct venue if there were no trustee process (G.L. c. 246, §4).

Venue: Venue choices that violate Federal Fair Debt Collection Act are improper and can constitute an unfair practice as defined by G.L. 93A even if venue would be proper under Massachusetts law, Schubach v. Household Finance Corp ., 375 Mass. 133, 376 NE2d 140 (1978).

Who May Not Be Adjudicated a Trustee: Person who is not an inhabitant of the Commonwealth Foreign corporation or association, unless the trustee has a usual place of business in Massachusetts G.L. c. 246, §32 lists eight situations where the person may not be adjudicated a trustee because the property is not subject to attachment by trustee process

Is the Trustee a Party to the Lawsuit? No, is not a “real party in interest” but a “stakeholder” in the case; Not liable to plaintiff under facts alleged in complaint; Plaintiff is not required to serve copies of all motions and papers on trustee as he would upon a “party” to the action (Mass. R. Civ. P. 17) Trustee cannot impose discovery on plaintiff under Rule 26

Wage Attachments by Trustee Process: No person may be adjudged a trustee for wage attachment unless on a suit on a judgment (Rule 4.2(a), Mass. R. Civ. P.). First $125 of defendant’s wages are exempt under Massachusetts law (G.L. c. 246, §28). This statute should be interpreted to mean the first $125 of net or “take home” wages ( Massachusetts Collection Law, 2nd Ed ., Jordan L. Shapiro, Marc G. Perlin, and John M. Connors (1992), §5:27, note 19).

Wage Attachments by Trustee Process: No person may be adjudged a trustee for wage attachment unless on a suit on a judgment (Rule 4.2(a), Mass. R. Civ. P.) First $125 of defendant’s wages are exempt under Massachusetts law (G.L. c. 246, §28). This statute should be interpreted to mean the first $125 of net or “take home” wages ( Massachusetts Collection Law, 2nd Ed ., Jordan L. Shapiro, Marc G. Perlin, and John M. Connors (1992), §5:27, note 19)

Wage Attachments by Trustee Process: Federal law allows wage garnishment to the lesser amount of: No more than 25 percent of an individual’s “disposable” earnings in any week; or No more than the amount by which “disposable” earnings for any week exceed 30 times the federal hourly minimum wage then in effect “ Disposable” earnings are the earnings remaining after deducting from gross wages or salary all amounts required by law to be withheld (including federal and state taxes and social security deductions). Plaintiff must comply with both federal and state guidelines

How to Calculate How Much Can be Taken on Trustee Wage Attachment: Employee’s weekly disposable earnings _______ multiplied by 25% Federal minimum hourly wage multiplied by 30. Subtract this amount from weekly disposable earnings: __________ Employee’s weekly “take home” pay minus $125: ____________ The amount of the wage attachment is the least of three amounts.

Process to Obtain Trustee Attachment: Governed by Mass. R. Civ. P. 4.2(c) Virtually identical to Rule 4.1(c) governing regular attachments

Necessary Documents for Attachment: Complaint must be filed (although the attachment may not need to be sought at time of filing, see Shapiro, Perlin, and Connors § 4:57); Motion seeking approval of attachment; Supporting Affidavit; Notice of Hearing; Writ of Attachment (additional writs if attaching property in more than one county). Finding and Order of Attachment

Motion: Motion required for attachment (4.1(c), third paragraph). Motion should include a request for an attachment for a specified amount of money. Motion must be signed by plaintiff’s attorney and include the attorney’s address and phone number.

Affidavit: Shall be upon the affiant’s own knowledge, information and belief. If matters are on affiant’s belief only, Rule 4.1(h) requires a statement that the affiant believes the information to be true. Attorney representing credit extenders should have affidavit signed by keeper of records or person in charge of overseeing customer accounts. Must meet standard for affidavits generally: Must consist of written statement signed by the affiant

Affidavit: Sworn to before an officer authorized to administer an oath (such as notary public) or signed under the pains and penalties of perjury. Affidavit should contain sufficient facts to allow the court to conclude that there is reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant that could be available to satisfy the judgment

Affidavit: In collection cases should include : the statement that the affiant has examined the accounts and records of the plaintiff, that the account is in arrears, that the affiant reasonably expects the plaintiff to recover judgment, that the affiant is not aware of any defense that the defendant may have to the claim, and that the affiant is not aware of any liability insurance available to cover the claim.

Notice of Hearing: Mass. R. Civ. P. do not require any particular form for notice. Purpose of notice: to inform defendant of date, time, and location of hearing on plaintiff’s request for an attachment on trustee process. Notice must inform the defendant that by appearing to be heard on the motion for approval of attachment he will not thereby submit himself to the jurisdiction of the court nor waive service of the complaint and summons upon him in the manner provided by law (Mass. R. Civ. P. 4.1(c), fourth paragraph).

Notice of Hearing: In District Court, plaintiff’s attorney may mark up motion for hearing date (recommended to consult with Clerk-Magistrate to ensure it is scheduled for a day civil motions are heard). In Superior Court, plaintiff’s attorney must follow process outlined for motions in Rule 9A of the Rules of the Superior Court. If notice of hearing served at same time as summons and complaint, plaintiff should ensure that service is proper if the defendant is an individual or corporation. See Mass. R. Civ. P. 4(d)(1) and (2).

Notice of Hearing: Plaintiff should ensure that notice is served with enough advance notice to defendant to comply with Mass. R. Civ. P. 6(c), which requires seven days advance notice of hearing on a motion (10 days if served by mail under Rule 6(d)). There is a special notice requirement for attachments of wages by trustee process. There must be 10 days notice, sent by registered mail, return receipt requested sent to defendant at his last known address, place of business or employment (G.L. c. 246, §32). Certified mail may be used in lieu of registered mail G.L. c.4, § 7, clause 44.

Return of Service: Counsel should make sure the officer’s return of service indicates that the motion and notice of hearing were served on the defendant in addition to the complaint and summons.

Hearing on Trustee Attachment: Facts that must be found to support trustee process attachment are the same as those for a regular attachment Plaintiff’s Burden: The burden on the plaintiff at the hearing is to show that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount sought to be attached over and above any liability insurance shown by the defendant to be available.

Hearing on Trustee Attachment: How Tough Is It? A federal court, interpreting the Maine Rules of Civil Procedure, declared that the standard was “a relatively low hurdle to clear,” and is satisfied “if an asserted claim supported by affidavit is not of such insubstantial character that its validity so clearly appears as to foreclose a reasonable possibility of recovery.” Hilton Shea, Inc. v. DMR Yachts, Inc . 750 F.Supp. 35 (D. Me. 1990)

Hearing on Trustee Attachment: Conduct of Hearing: Handbook of Civil Procedure in the Massachusetts District Court, 3rd Ed., Mark G. Perlin and John M. Connors (2003), §5.15-5.18. Plaintiff may call witnesses and elicit testimony, including the opposing party.

Hearing on Trustee Attachment: Defendant’s Opposition: Defendant could produce proof of insurance sufficient to satisfy any judgment against him. Defendant may produce affidavits (or elicit testimony at hearing) asserting facts that may call into serious question the “reasonable likelihood” of plaintiff’s success on the claim.

Hearing on Trustee Attachment: Defendant’s Opposition: Defendant could assert existence of defenses or counterclaims that could serve to eliminate any recovery by the plaintiff. Defendant may appeal to court’s discretion to refuse to authorize attachment due to: Defendant’s sound financial position shows no need for an attachment; Issuance of attachment would create an “undue hardship” on the defendant.

Ex Parte Trustee Process Attachments: Requirements the same as for regular attachments see Rule 4.2(g) An ex parte hearing is done by a request of plaintiff via motion and affidavit at time of filing of complaint. The plaintiff must specifically request that the motion be heard ex parte and must (pursuant to Mass. R. Civ. P.4.0(f)) include facts in the affidavit in support of at least one of the following: The person of the defendant is not subject to the jurisdiction of the court in the action; There is a clear danger that the defendant, if notified in advance of attachment of property, will convey it, remove it from the state, conceal it; or There is immediate danger that the defendant will damage or destroy the property to be attached.

Ex Parte Trustee Process Attachments: Motion requesting ex parte attachment must also be accompanied by a “certificate” by the plaintiff or plaintiff’s attorney indicating the amount of any liability insurance that he knows or has reason to believe will be available to satisfy any judgment against the defendant in the action.

Ex Parte Trustee Process Attachments: Additional Obligation for Massachusetts Attorneys: Massachusetts Rules of Professional Conduct (Supreme Judicial Court Rule 3:07) Rule 3.3(d) provides that “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse ” (emphasis added).

If Plaintiff Prevails at Motion Hearing: The court will order the issuance of the trustee summons Trustee summons differs from writ of attachment in that it is directed to the trustee, not the sheriff (although it must still be served by sheriff or other process server). Instead of requiring sheriff to make a return of service that the goods have been attached, it requires the trustee to file an answer by a certain date and notifies the trustee of the effect of failing to answer (sheriff or constable, however, must still make a return of service that the summons has been served on the trustee).

If Plaintiff Prevails at Motion Hearing: Trustee summons for wage attachment will refer to legal requirements of any exemptions and leaves it to the trustee to compute those exemptions Trustee summons must be served within 30 days of date of order approving the attachment, Rule 4.2(c), fourth paragraph. A copy of the trustee summons with officer’s endorsement and date of service must be served on the defendant “promptly” after service on the trustee (applies to ex parte attachments also).

Successive Service of Trustee Summons (Wage Attachments): G.L. c. 246, § 8 and Rule 4.2(f) Must be requested by motion 30 day rule for service of summons does not apply to successive services Defendant must be served with copy of every successive service of trustee summons

Trustee’s Answer: Trustee must answer whether or not it holds goods, effects or credits of the defendant at the time of service of the trustee summons If trustee answers that it is holding goods, plaintiff should file a motion to charge trustee If trustee fails to answer, plaintiff should also file motion seeking to charge trustee for full amount on trustee summons. Trustee may defend a motion to charge, even if it failed to answer ( Cunningham v. Hogan , 136 Mass 407 (1884)).

Trustee’s Answer: Trustee’s answer, under oath, is presumed true (G.L. c. 246, § 16), parties wishing to dispute answer can have a hearing or trial on the issue and the court has the discretion to submit the issue to a jury (G.L. c. 246, § 17) Upon allowance of motion to charge trustee, clerk should issue a separate document called a trustee judgment and note its issuance on the docket ( Arthur D. Little, Inc. v. East Cambridge Savings Bank , 35 Mass. App. Ct. 734, 625 NE2d 1383 (1994)).

Trustee Execution: Should not issue until there has been a judgment for plaintiff on the underlying action and the time period for appeal has expired (10 days in district court) Judgment for defendant on underlying action operates to dissolve the trustee attachment just as it does a regular attachment Must be served within 30 days of “final judgment” on case or they may be subject to attachment by another creditor or recovered by the defendant; G.L. c. 246, § 40

Trustee Execution: 30 day date in G.L. c. 246, § 40 has been interpreted in Superior Court actions to mean the date the plaintiff is entitled to obtain execution since the time period for appeal is Superior Court is 30 days which would appear to preclude plaintiff from obtaining execution District Court official trustee execution form is returnable in 60 days; trustee executions from Superior Court have a 20 year return period Trustee who does not turn over the defendant’s goods, effects or credits after demand by trustee execution may be personally liable to the plaintiff. The plaintiff may file a separate action against the trustee in the same court that rendered the underlying judgment; G.L. c. 246, § 45.

Attachment Trustee Process & Execution

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