Advisory Committee’s Notes 1981

Rule 4A(c) as originally promulgated required that an action in which attachment was sought could be commenced only by filing the complaint the second method provided in Rule 3. Experience under the rule has shown that there is no practical purpose to this limitation and that inconvenience arises from it. Accordingly, Rule 4A(c) is amended to permit the action to be commenced by either service or filing. Whichever method is used, the procedure is the same: the motion for approval of attachment and its supporting affidavits must be filed with the complaint and served with the summons and complaint, regardless of the order in which these steps are taken. Of course, attachment subsequent to the commencement of the action may still be had under Rule 4A(e).

Rule 4A(c) is also amended to make clear that for attachment to be appropriate a plaintiff’s probable recovery must exceed the amount, not only of available liability insurance, but of any other fund available to satisfy the judgment.

Rule 4(f) is amended to take account of the decision in Shaffer v. Heitner, 433 U.S. 186 (1977), that attachment of assets at the commencement of an action is no longer a constitutionally valid way of obtaining jurisdiction over a nonresident in the absence of any other contacts with the state. See Advisory Committee’s Note to simultaneous amendment of Rule 4(f).

The present amendment deletes as a ground for ex parte attachment the fact that the defendant is not personally subject to the jurisdiction. That provision is no longer needed or appropriate, because under Shaffer the fact of absence by itself will not support jurisdiction. In a case in which under the long-arm statute, 14 M.R.S.A. §704-A, defendant is subject to jurisdiction and service, he can be served personally under Rule 4(e), by mail if appropriate under amended Rule 4(f), or by publication if necessary under Rule 4(g). Attachment can then be sought on notice and hearing under Rule 4A(c). Only if there is danger that defendant will abscond with or imperil the security, may ex parte attachment issue under Rule 4A(f) as here amended.

Rule 4A(f) is also amended for consistency with the simultaneous amendment of Rule 4A(c). The amendment limits the availability of ex parte attachment to actions commenced by filing the complaint except when subsequent attachment is appropriate under Rule 4A(e). The amended rule makes clear that the court must have the complaint before it when it passes on an ex parte motion for attachment and that the motion must be acted upon before it is served on defendant.

Rule 4A(g) is amended to make clear that an ex parte attachment obtained under Rule 4A(f) may be quashed by a person other than the defendant if that person has an interest in the property.

Advisory Committee’s Notes 1988

Rule 4A(c) is amended for consistency with 14 M.R.S.A. §4154, as amended by P.L. 1983, ch. 125; P.L. 1985, ch. 187. That section now permits real or personal property subject to attachment to be attached by filing an attested copy of the court’s order of approval in the registry of deeds for the county where real property is located or, for personal property, in the filing office appropriate under 11 M.R.S.A. §9-401(l). The order is to be filed within 30 days after its entry unless the court allows additional time on motion. Recording or filing fees are to be paid as for other documents. The statute expressly provides that filing constitutes perfection of the attachment and requires service of a copy of the court order upon the defendant “in accordance with the Maine Rules of Civil Procedure pertaining to service of writs of attachment.”

The amendment to the rule addresses two questions. First, it provides, in the third paragraph of subdivision (c), that when an attachment which has been ordered ex parte is perfected by filing under the statute, the defendant is to be served with a copy of the order of approval containing the filing officer’s acknowledgement of receipt, rather than with the writ of attachment itself. The second situation is that in which an attachment is made after the filing of the summons and complaint, whether upon ex parte order or after order of approval granted upon motion and affidavits served with the summons and complaint. In such a case, when the attachment has been perfected by filing under the statute, an amendment to the fourth paragraph of subdivision (c) provides that a copy of the order of approval with acknowledgement of filing is to be served upon the defendant in the same manner as a copy of the writ and return are served in the case of a possessory attachment.

In both situations, the effect of the statute is that no writ of attachment is prepared. It is service of the order, rather than the writ, which gives the defendant notice of the attachment.

Advisory Committee’s Notes 1991

Rule 4A(c) is amended for consistency with new M.R.Civ.P. 4(c) adopted simultaneously. Under that Rule, service of the summons and complaint may now be made by mail with notice and acknowledgement. The present amendment makes clear that a writ of attachment may be served only by a sheriff or deputy. See Rule 4A(b).

Advisory Committee’s Notes 1992

Rule 4A is amended in a number of respects to address growing concerns of both bench and bar that the standards for granting attachment were not stringently or consistently applied and that the procedure was too cumbersome. Simultaneous amendments to the same effect have been made in Rule 4B. Forms 6.10 and 6.20 are simultaneously amended for conformity with the amendments to Rules 4A and 4B.

Rule 4A(b) is amended to make the writ of attachment consistent with existing provision of Rule 4A(c) that an order granting an attachment fixes the amount of the attachment and to take into account the prospect that under new Rule 4A(d)(1) an order granting an attachment may be limited to specific property.

Rule 4A(c) is amended to change the “reasonable likelihood” standard to one requiring a showing that it is “more likely than not” that the plaintiff will recover judgment in an amount that equals or exceeds “the aggregate sum” of the attachment sought and other available security. The latter phrase is included in the amendment to make clear that the amount to be approved for attachment is the difference between the amount of the potential judgment that the court finds to be “more likely than not” and the other security.

The change in the standard for attachment responds to prevailing concerns that attachments are too freely given under the existing standard. The “reasonable likelihood” standard was intended only as a constitutional minimum. See M.R.-Civ.P. 4A advisory committee’s note to January 1973 amendment, 1 Field, McKusick & Wroth, Maine Civil Practice 62 (2d ed. Supp. 1981). As the Law Court has recently affirmed, that standard “requires only that the plaintiff claim ‘is not of such insubstantial character that its invalidity so clearly appears as to foreclose a reasonable possibility of recovery,'” and abuse of discretion in the trial court application of the standard will be found only where the record shows “that the plaintiff had ‘virtually no chance of recovery'” on the claim. Bay of Naples Condominium Ass’n v. Lewis, 582 A.2d 1210, 1212 (Me. 1990), quoting Northeast Inv. Co. v. Leisure Living Communities, Inc., 351 A.2d 845, 852 (Me. 1976); Herrick v. Theberge, 474 A.2d 870, 874 (Me. 1984). See also Precision Communications, Inc. v. Rodrigue, 451 A.2d 300, 301 (Me. 1982); DiPietro v. Casco N. Bank, 490 A.2d 215, 218 (Me. 1985); Barrett v. Stewart, 456 A.2d 10, 11 (Me. 1983); Anderson v. Kennebec River Pulp & Paper Co., 433 A.2d 752, 756 (Me. 1981).

The present amendment is adopted as a matter of policy rather than constitutional mandate. The constitutional minimum has not changed. See Connecticut v. Doehr, —U.S. —, 111 S.Ct. 2105, 2114, 115 L.Ed.2d 1 (1991). The purpose of the increased standard is to strike a more even balance between plaintiff and defendant in the use of attachment. Its effectiveness in achieving this goal will be subject to continuing review.

Under the “reasonable likelihood” standard, it was expressly held that plaintiffs need not show that it was more likely than not that they would prevail. See Northeast Inv. Co. v. Leisure Living Communities, Inc., supra; Bowman v. Dussault, 425 A.2d 1325, 1328 (Me. 1981). Under the amended standard that showing will be required. A moving party must show a greater than 50% chance of prevailing. This change in the threshold for obtaining an attachment, which applies to the showing of success on both liability and damage issues, will not cause the procedure for obtaining an attachment to be more complicated. No other change in the practice is intended. The type of evidence to be submitted will be the same as under existing law. The required showing is to be made through affidavits; there is no right to an evidentiary hearing. Atlantic Heating Co., Inc. v. John Lavin, 572 A.2d 478, 479 (Me. 1990). As under existing law, specificity is required in the showing for the amount of the attachment, and this amount cannot be offset by claims of the non-moving party. See Casco N. Bank, N.A., et al. v. New England Sales, Inc., et al., 573 A.2d 795, 797 (Me. 1990).

To expedite proceedings, Rule 4A(c) is further amended to provide a kind of default procedure. An attachment “in an appropriate amount” will be ordered without hearing if there is no opposition filed in accordance with Rule 7(c) within ten days after service of the motion and if the plaintiff affidavit shows on its face that the claimed recovery is “more likely than not.”

The Advisory Committee originally proposed that Rule 4A(c) also be amended by adding provisions requiring plaintiff to schedule a hearing with the clerk and providing that the hearing on an attachment with notice should be scheduled on an expedited basis, “at the earliest possible date requested by the plaintiff” more than 20 days after service on the defendant. See Advisory Committee on Civil Rules, Annual Report, p. 2 and Appendix A (10/29/91). The proposed amendment was intended to eliminate extensive delays in obtaining hearings on notice that had caused counsel to seek ex parte attachments in cases where they were not necessary or warranted. The Court, recognizing the need for expedited hearings, prefers to achieve the goal by administrative means. If delays persist, the Court will consider appropriate further amendment of the rule.

A new Rule 4A(d) is added concerning the attachment of specific property and substitution of security. Rule 4A(d)(1) explicitly requires the motion justice to limit the attachment to certain specific property or credits upon a showing by the defendant that the property or credits offered by the defendant are adequate and available to satisfy the judgment and that, otherwise, hardship to defendant will result. The showing of adequacy should value the offered property under the assumption that a sale may take place upon execution of a judgment. Under present law, the Superior Court has some limited discretion to select particular property or credits to be attached but is not required to exercise that discretion. Compare Maine National Bank v. Anderschat, 462 A.2d 482 (Me. 1983), with Sinclair v. Anderson, 473 A.2d 872, 874-75 (Me. 1984). The amendment is intended to prevent inequities that may arise if the motion justice cannot specify limitations on the attachment upon an appropriate showing of the defendant. However, the defendant must justify the need to go through that exercise based on a showing that prejudice would occur in the absence of such limitations.

New Rule 4A(d)(2) permits substitution of a bond or cash for an attachment consistent with the bonding provision of 14 M.R.S.A. §4613. The amendment makes clear that this substitution can occur before the fact, at the attachment hearing, as well as after the attachment has actually been issued. The paragraph also sets forth procedural guidelines, incorporating existing provisions of Rules 67 and 65(c).

New Rule 4A(d)(3) allows a single bond or cash to be substituted for multiple attachments against defendants alleged to be jointly and severally liable to the plaintiff on a single debt. The intent of the provision is to eliminate the potential for over-securing a single debt, which can occur under present law. See Chase Commercial Corp. v. Hamilton & Son, 473 A.2d 1281 (Me. 1984).

The remaining subdivisions of the rule are redesignated “(e)” through “(i).”

Redesignated Rule 4A(f) is amended to make clear that the provisions of new Rule 4A(d) for limitation to specific property and substitution of security apply to additional or subsequent attachments.

Redesignated Rule 4A(g), covering hearings on attachments, is amended to provide that the hearing on an ex parte motion should be held “forthwith”; to substitute the “more likely than not” standard for the “reasonable likelihood” showing; and to incorporate the “aggregate sum” language of amended Rule 4A(c).

Redesignated Rule 4A(h) is amended to allow an existing attachment, whether ex parte or on notice, to be modified by substitution of specific property, cash or bond in the manner provided by new Rule 4A(d) for obtaining initial attachments.

Advisory Committee’s Notes 1993

Rule 4A(c) as amended effective February 15, 1992, is further amended to eliminate the 10-day period for filing material in opposition to a motion. Under the amended rule, filing will be subject to the 21-day period provided by Rule 7(c) for all types of motions. Experience under the rule as originally adopted indicated that the 10-day period was unrealistically short for parties to obtain counsel, in light of the 20 days allowed for answer. The change will not significantly affect the purpose of the 1992 amendment to assure expeditious proceedings.

Advisory Committee’s Notes May 1, 2000

The specific statutory citation in subdivision (a) is replaced by the general reference to the Maine Consumer Credit Code so that the Rules are not impacted by statutory changes.

Annotations:

Rule 4A(c): Valuation “other security.” Citizens Bank of New Hampshire v. Acadia Group, Inc., 2001 ME 41, 9-12.

Rule 4A(c): Southern Maine Properties Co. v. Johnson , 1999 ME 37, 6-8.

Rule 4A(d)(1): Release of funds from attachment. Liberty v. Liberty, 2001 ME 19, 11-18.

Rule 4A(g) & (h): Ex parte attachment appeal. Jim Mitchell and Jed Davis, P.A. v. Lavigne, 2001 ME 67.