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Massachusetts Supreme Judicial Court Rule 1:04A: Attachment

(Applicable to certain civil cases.)

[Disclaimer]

(1) Availability of Attachment. Real estate, goods, chattels and other property may be attached in any personal action or proceeding, not governed by the Massachusetts Rules of Civil Procedure, the Massachusetts Rules of Domestic Relations Procedure (adopted by the judges of the Probate and Family Court Department), or the District/Municipal Courts Rules of Civil Procedure, in the manner and to the extent provided by law but subject to the requirements of this rule.

(2) Necessity of Prior Hearing. No attachment upon an original writ may be made unless such attachment for a specified amount has been approved by a justice of the court to which the writ is returnable. The approval of such justice shall be endorsed upon the writ. Except as provided in paragraph (5) of this rule, such approval may be endorsed only after notice to the defendant and hearing and upon a finding by the court 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 of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment.

(3) Procedure. A plaintiff who desires to attach real estate, goods, chattels or other property of the defendant shall file in the court to which the writ is returnable the writ in the action, properly completed, the declaration, and a motion for approval of the attachment. The motion shall be supported by affidavit or affidavits meeting the requirements of paragraph (7) of this rule. The motion shall be marked for hearing and, except as provided in paragraph (5) of this rule, a copy of the writ, declaration, motion, supporting affidavit or affidavits, and a notice of hearing shall be mailed to the defendant by certified mail, return receipt requested, at his last known place of residence, or delivered to him, seven days at least before the date set for hearing. Except as provided in paragraph (9) of this rule, any attachment shall be made within thirty days after the date of the order approving the attachment. Promptly after the attachment is made, a copy of the writ with the officer's endorsement thereon of the date of any attachment shall be mailed to the defendant in the manner provided in paragraph (3).

(4) Appearance of Defendant. Inclusion of a copy of the writ in the notice of hearing shall not constitute personal service of the writ upon the defendant. The notice shall inform the defendant that by appearing to be heard on the motion for approval of an attachment he will not thereby submit himself to the jurisdiction of the court nor waive service of the writ and summons or citation upon him in the manner provided by law.

(5) Ex Parte Approval. Approval of an attachment and endorsement thereof upon the writ may be granted ex parte upon findings by the court that there is a reasonable likelihood that the plaintiff will recover judgment in an amount equal to or greater than the amount of the attachment over and above any liability insurance known or reasonably believed to be available, and that either (a) the person of the defendant is not subject to the jurisdiction of the court in the action, or (b) there is a clear danger that the defendant if notified in advance of attachment of his property will remove it from the Commonwealth or conceal or convey it, or (c) there is immediate danger that the defendant will damage, destroy or waste the property to be attached. The motion for such ex parte approval of attachment shall be accompanied by a certificate by the plaintiff or his attorney of the amount of any liability insurance which he knows or has reason to believe will be available to satisfy any judgment, and shall be supported by affidavit or affidavits meeting the requirements of paragraph (7) of this rule.

(6) Dissolution or Modification of Ex Parte Attachments. On two days' notice to the plaintiff, or on such shorter notice as the court may prescribe, a defendant whose real estate, goods, chattels or other property has been attached upon a writ approved ex parte as provided in paragraph (5) of this rule may appear, without thereby submitting his person to the jurisdiction of the court, and move the dissolution or modification of the attachment. Such motion shall be heard and determined as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding made in the ex parte order which the defendant has challenged by affidavit. 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.

(7) 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 he believes this information to be true.

(8) Form of Hearing. At any hearing held under this rule, either party may adduce testimony and may call witnesses (including any opposing party).

(9) Subsequent Attachment. Property subject to attachment may, during the pendency of the action or proceeding, be attached subject to the provisions of this rule, except that if the defendant has previously been served with process the plaintiff need not mail the defendant a copy of the writ; and if the plaintiff has previously filed any motion pursuant to paragraph (3) of this rule, or paragraph (3) of Rule 1:03A, he need not mail the defendant a copy of either the writ or the declaration or similar pleading.

(10) Definitions. The term "plaintiff" shall include a petitioner; "defendant" shall include a respondent; "writ" shall include a summons or an order of notice in the action or proceeding; "declaration" shall include any initial pleading; and "judgment" shall include an order or decree.