§ Rule 4A Attachment
Rule 4A. Attachment
(a) Availability of Attachment. In any action under these rules, real estate, goods and chattels and other property may, in the manner and to the extent provided by law, but subject to the requirements of this rule, be attached and held to satisfy the judgment for damages and costs which the plaintiff may recover. Attachment under this rule shall not be available before judgment in any action against a consumer for a debt arising from a consumer credit transaction as defined in the Maine Consumer Credit Code.
(b) Writ of Attachment: Form. The writ of attachment shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court, the names and residences of the parties and the date of the complaint, be directed to the sheriffs of the several counties or their deputies, and command them to attach the goods or estate of the defendant to the value of a specified amount ordered by the court, or to attach specific property of the defendant designated by the court, and to make due return of the writ with their doings thereon. The writ of attachment shall also state the name of the justice or judge who entered the order approving attachment of property, if any, and the date thereof.
(c) Same: Service. The writ of attachment may be procured in blank from the clerk and shall be filled out by the plaintiff's attorney as provided in subdivision (b) of this rule. The writ of attachment shall be served by a sheriff or a deputy within the sheriff's county. The plaintiff's attorney shall deliver to the officer making the attachment the original writ of attachment upon which to make return and a copy thereof.
No property may be attached unless such attachment for a specified amount is approved by order of the court. Except as provided in subdivision (g) of this rule, the order of approval may be entered only after notice to the defendant and hearing and upon a finding by the court that it is more likely than not that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the aggregate sum of the attachment and any liability insurance, bond, or other security, and any property or credits attached by other writ of attachment or by trustee process shown by the defendant to be available to satisfy the judgment.
An attachment of property shall be sought by filing with the complaint a motion for approval of the attachment. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (i) of this rule. Except as provided in subdivision (g) of this rule, the motion and affidavit or affidavits with the notice of hearing thereon shall be served upon the defendant in the manner provided by Rule 4 at the same time the summons and complaint are served upon that defendant. In the case of an attachment approved ex parte as provided in subdivision (g) of this rule, the defendant shall also be served with a copy of the writ of attachment with the officer's endorsement thereon of the date or dates of execution of the attachment or, if attachment has been perfected by filing under 14 M.R.S.A. § 4154, with a copy of the order of approval with the acknowledgment of the officer receiving the filing endorsed thereon.
A defendant opposing a motion for approval of attachment shall file material in opposition as required by Rule 7(c). If the defendant is deemed to have waived all objection to the motion as provided in Rule 7(c) for failure to file opposition material within the time therein provided or as extended, the court shall, without hearing, upon a finding that the plaintiff is entitled to an attachment under the terms of this subdivision (c), enter an order of approval of attachment in an appropriate amount.
Any attachment shall be made within 30 days after the order approving the writ of attachment. When attachments are made subsequent to service of the summons and complaint upon the defendant, a copy of the writ of attachment with the officer's endorsement thereon of the date or dates of the attachments shall be promptly served upon the defendant in the manner provided by Rule 5. When an attachment made subsequent to the service of the summons and complaint has been perfected by filing under 14 M.R.S.A. § 4154, a copy of the order of approval, with the acknowledgment of the officer receiving the filing endorsed thereon, shall be promptly served upon the defendant in the same manner.
(d) Approval of Limited Attachment or Substituted Security.
(1) Attachment of Specific Property. In the order approving an attachment, the court shall specify that the attachment is to issue solely against particular property or credits upon a showing by the defendant (A) that the property or credits specified are available for attachment and would, if sold to satisfy any judgment obtained in
the action, yield to the plaintiff an amount at least equal to the amount for which attachment is approved in accordance with the criteria of subdivision (c), and (B) that the absence of such a limitation will result in hardship to the defendant.
(2) Alternative Security for a Single Defendant. At the hearing on a motion for approval of an attachment against the property of a single defendant, the defendant may tender cash or bond at least equal to the amount of any attachment to be approved in accordance with the criteria of subdivision (c). If the court finds that the defendant has tendered cash in sufficient amount, it shall order that amount to be deposited with the court as provided in Rule 67 to be held as security for any judgment that the plaintiff may recover. If the court finds that the defendant has tendered a bond of sufficient amount and duration and with sufficient sureties, the court shall order the bond to be filed with the court. A surety upon a bond filed under this rule is subject to the terms and conditions of Rule 65(c). Upon such deposit or filing, the court shall further order that any prior attachment against the defendant to satisfy a judgment on the claim for which security has been tendered shall be dissolved. Thereafter, no further attachment shall issue against the defendant except on motion of the plaintiff and a showing that the cash deposited or bond filed has become inadequate or unavailable to satisfy the judgment.
(3) Single Security for Multiple Defendants. At the hearing for approval of attachment against the property of two or more defendants alleged to be jointly and severally liable to the plaintiff, one or more of the defendants may tender cash or bond sufficient, in the aggregate, to satisfy the total amount the plaintiff would be entitled to recover upon execution against all such defendants. Upon the findings required by paragraph (2) of this subdivision for a single defendant, the court may order the cash to be deposited or the bond filed with the court on the same conditions and with the same effect provided in that paragraph.
(e) Attachment on Counterclaim, Cross-Claim or Third-Party Complaint. An attachment may be made by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim.
(f) Subsequent or Additional Attachment. If no writ of attachment has issued, or if the time period prescribed in subdivision (c) of this rule for making attachments has expired, the court on motion may issue an order of approval for attachment of real estate, goods and chattels or other property. The provisions of subdivisions (c), (d), and (g) of this rule apply to the motion and any attachment ordered thereunder, except that notice if appropriate shall be served upon the defendant in the manner provided in Rule 5.
(g) Ex Parte Hearings on Attachments. An order approving attachment of property for a specific amount may be entered ex parte only in an action commenced by filing the complaint with the court together with a motion for approval of the attachment as provided in subdivision (c) of this rule. The hearing on the motion shall be held forthwith. Such order shall issue if the court finds that it is more likely than not that the plaintiff will recover judgment in an amount equal to or greater than the aggregate sum of the attachment and any insurance, bond, or other security, and any property or credits attached by other writ of attachment or by trustee process known or reasonably believed to be available to satisfy the judgment, and that either (i) there is a clear danger that the defendant if notified in advance of attachment of the property will remove it from the state or will conceal it or will otherwise make it unavailable to satisfy a judgment, or (ii) there is immediate danger that the defendant will damage or destroy the property to be attached. The motion for such ex parte order shall be accompanied by a certificate by the plaintiff's attorney of the amount of any insurance, bond, or other security, and any other attachment or trustee process which the attorney knows or has reason to believe will be available to satisfy any judgment against the defendant in the action. The motion, in the filing of which the plaintiff's attorney shall be subject to the obligations of Rule 11, shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (i) of this rule.
(h) Dissolution or Modification of Attachments. On 2 days' notice to the plaintiff or on such shorter notice as the court may prescribe, any person having an interest in property that has been attached pursuant to an ex parte order entered under subdivision (g) of this rule may appear, without thereby submitting to the personal jurisdiction of the court, and move the dissolution or modification of the attachment, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding in the ex parte order that the moving party has challenged by affidavit.
Upon motion and notice and a showing by any defendant that specific property or sufficient cash or bond is available to satisfy a judgment as provided in subdivision (d) of this rule, the court may modify an order of attachment, whether issued ex parte or after hearing, to limit the attachment to particular property or to order cash or bond to be held by the court as security for the judgment, and to dissolve the prior attachment as to all other property of the defendant. If a prior attachment has been perfected as to property specified in the modified order, the modified order shall relate back to the original attachment. Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of an attachment that is otherwise available by law.
(i) Requirements for Affidavits. Affidavits required by this rule shall set forth specific facts sufficient to warrant the required findings and shall be upon the affiant's own knowledge, information or belief; and, so far as upon information and belief, shall state that the affiant believes this information to be true.