No trustee summons may be served unless attachment on trustee process for a specified amount has been 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 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 trustee process over and above any liability insurance shown by the defendant to be available to satisfy the judgment.
An action in which trustee process is sought may be commenced only by filing the complaint with the court, together with a motion for approval of attachment on trustee process. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in Rule 4.1(h). 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 him; and the defendant shall also be served with a copy of the trustee summons in cases where attachment has been approved ex parte as provided in subdivision (g) of this rule. Inclusion of a copy of the complaint in the notice of hearing shall not constitute personal service of the complaint upon the defendant. The notice shall inform the defendant that by appearing to be heard on the motion for approval of an attachment on trustee process 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.
Except as provided in subdivision (f) of this rule, any trustee process shall be served within 30 days after the date of the order approving the attachment. Promptly after the service of the trustee summons upon the trustee or trustees, a copy of the trustee summons with the officer’s endorsement thereon of the date or dates of services shall be served upon the defendant in the manner provided by Rule 5.
Mass. R. Civ. P. 4.2
Reporter’s Notes:
(1994): The ninth paragraph of the Reporters’ Notes to Rule 4.2 states in part that Rule 4.2(c) requires service of the trustees summons within 30 days after commencement of the action. In fact, Rule 4.2(c) requires service of the trustee process within 30 days after the order of approval of the trustee attachment.
(1974) Rule 4.2 indicates the availability of trustee process as a means of commencing a lawsuit and of securing any potential judgment. It does not appear in the Federal Rules, which refer to state procedure. The rule, based on Maine and Rhode Island variants, does not attempt to cover the subject completely; it specifically refers to “law” as a supplement to the rule’s provisions. G.L. c. 246 is entirely devoted to trustee process; the attorney contemplating use of such process ought certainly to consult the statute before proceeding. Rule 4.2, like Rule 4.1 has been drafted to meet constitutional requirements. Its provisions as to notice and hearing (Rule 4.2(c) ); ex parte hearings (Rule 4.2(g) ); affidavits (Rule 4.2(g) ), incorporating (Rule 4.1(h) ); and dissolution of attachment (Rule 4.2(h) ) parallel Rule 4.1, which, together with its Reporters’ Notes, should be consulted. See also Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); 15 U.S.C. §§ 1671-1677 (the Federal Consumer Protection Act).
Rule 4.2(a) and Form 2 -A in the Appendix of Forms capsulize the most important basic existing rules pertaining to trustee process: (1)The types of action in which it is unavailable (G.L. c. 246, §§ 1, 32 ); (2) The preferred position of wages, pensions, and salaries generally (G.L. c. 246, §§ 28, 32 ); and (3) The ceiling on trustee attachment of wages, pensions and bank accounts (G.L. c. 246, §§ 28, 28A ).
Certain actions cannot be commenced by trustee process at all, others not unless a bond is filed. See G.L. c. 246, § 1. Under Massachusetts practice, the statutory requirements are strictly enforced. If the complaint includes a count for a cause of action in which trustee process is not available (e.g., slander), the entire attachment will be void, even though the complaint also contains a “trusteeable” cause of action and plaintiff waives the slander count. Buono v. Nardella, 344 Mass. 257, 259, 182 N.E.2d 142, 143-144 (1962). This is not regarded as discretionary; it may not be cured by amendment because the court “never had jurisdiction to entertain the action or to amend the [complaint].” A. Sandler Co. v. Portland Shoe Manufacturing Co., 291 Mass. 326, 327, 197 N.E. 1 (1935). Similarly, if the action is one in which the bond requirement is statutorily waived, the statutory terms must be complied with exactly. Thus the statute exempts from the bond requirement “a writ which contains a statement that the action is . . . for money due under a contract in writing,” G.L. c. 246, § 1. A statement that the action is “an action of contract (in writing)” was held not to comply with the statute. Farber v. Lubin, 327 Mass. 128, 130, N.E.2d 419, 420 (1951). The defect is jurisdictional, and cannot be cured by amendment. Tennessee Plastics, Inc. v. New England Elec. Heating Co., Inc., 345 Mass. 575, 577, 188 N.E.2d 569, 570-571 (1963). The court may allow an amendment only if the complaint states, however irrelevantly, one of the statutory exemptions. So long as the action is in fact based on any of the exceptions, the court may permit the necessary amendment. Tennessee Plastics, Inc. v. New England Electric Heating Co., Inc., 345 Mass. 575 at 577, 188 N.E.2d at 570-571.
Rule 15 (allowing liberal amendment) and 18 (allowing free joinder of claims) alter prior practice, and abrogate the strict rules heretofore laid down in interpreting G.L. c. 246, § 1. Rule 4.2(b) prescribes the form of trustee process. It closely follows Rule 4(b), relying on Massachusetts Const. Pt.. 2, c. 6, Art. V; G.L. c. 223, § 16.
Rule 4.2(c), covering service procedure, relates explicitly to the service of other process under Rule 4. Rule 4.2(c) requires service of the trustee process within 30 days after filing the complaint, i.e. within 30 days after commencement of the action. The problem did not arise under prior practice, because seizure had to precede entry; that is, in Massachusetts formerly an action (although commenced for statute of limitations purposes when the writ was filled out with the intention to serve, Rosenblatt v. Foley, 252 Mass. 188, 190, 147 N.E. 558, 559 (1925)), was not “in court” until the writ was entered and the declaration filed.
The principles of Rules 4.1(c), as discussed in the Reporter’s Notes to that rule, apply to Rule 4.2(c).
Rule 4.2(d), by reference to “law,” includes such statutory provisions as G.L. c. 246, § 10-19. The requirement of a signature under the penalties of perjury comes from G.L. c. 246, § 11. The 20-day requirement conforms to the general time-to-answer provision of the rules (Rule 12(a) ); it enlarges the time formerly allowed by ten days (Supreme Judicial Court), G.L. c. 246, § 10. Rule 4.2(e) makes trustee process available on claims against the plaintiff (counterclaims), or between parties on the same side of the versus (cross-claims), or against parties newly brought into the litigation by the defendant (third-party claims). Rule 4.2(e) eliminates venue requirements, G.L. c. 246, § 2, in any counterclaim situations, whether the counterclaim is compulsory or permissive, see Rule 13. If the counterclaim is compulsory, the defendant must raise it, or else abandon it forever, Rule 13(a). It would be unfair to allow venue rules to deprive such a defendant of the valuable right to trustee process. If the counterclaim is merely permissive, the unfairness argument does not apply. But the whole idea behind encouraging permissive counterclaims is the minimizing and compressing of litigation. That purpose seems clearly superior to the rationale behind the trustee venue statute, viz., the convenience of the trustee. This is particularly true under Rule 4.1(c), which contemplates that in the great majority of cases, the trustee will participate in the litigation entirely on paper. Even in those rare instances requiring “live” participation, no particular unfairness will result. In such a geographically compact state as Massachusetts, it does not seem unreasonable to require, say, a Boston bank to send a representative to testify in a Pittsfield lawsuit.
Rule 4.2(f) incorporates existing statutory law concerning plural service on the same trustee, G.L. c. 246, § 8. Such service, like fresh service on additional trustees, G.L. c. 246, § 8, requires appropriate court approval.