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Rule 4.1 – Attachment

May 14, 2021 | Civil Procedure, Vermont

(a)Availability of Attachment. In any action under these rules (except an action for malicious prosecution, libel, or slander), real estate, goods and chattels, and other property may, in the manner and to the extent provided by law and by this rule, be attached and held to satisfy any judgment for damages and costs which the plaintiff may recover.
(b)Writ of Attachment: Issuance.

(1) A writ of attachment shall be filled out as provided in subdivision (c) of this rule and issued to the plaintiff’s attorney by the clerk of the court in the county where the action is pending or the property is located. Such writ shall issue only upon the order of a Superior or District Judge approving attachment for a specified amount as provided in paragraph (2) or (3) of this subdivision. The order shall specifically state the grounds of its issuance and shall be incorporated in and made part of the writ.
(2) Except as provided in paragraphs (3) and (4) of this subdivision, an order of approval may be issued only upon motion after 7 days’ notice to the defendant, or on such shorter notice as the judge may prescribe for good cause shown, and upon hearing and 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, bond, or other security shown by the defendant to be available to satisfy the judgment. The motion shall be filed with the complaint and shall be supported by an affidavit or affidavits meeting the requirements set forth in subdivision (i) of this rule. The motion and affidavit or affidavits, together with the notice of hearing thereon, shall be served upon the defendant in the manner provided in Rule 4 at the same time that the summons and complaint are served upon the defendant.
(3) An order of approval may be issued ex parte upon motion and findings by the court (A) 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, bond, or other security known or reasonably believed to be available to satisfy the judgment, and (B) that either (i) there is a clear danger shown by specific facts that the defendant if notified in advance of the attachment will remove from the state or conceal attachable property, leaving insufficient attachable property or other assets to satisfy the judgment; or (ii) there is immediate danger shown by specific facts that the defendant will damage, destroy, or sell to a bona fide purchaser attachable property, leaving insufficient attachable property or other assets to satisfy the judgment. The motion shall be filed with the complaint and shall be supported by an affidavit or affidavits meeting the requirements set forth in subdivision (i) of this rule. In addition, the motion shall be supported by a certificate by the plaintiff’s attorney of the amount of any liability insurance, bond, or other security which the attorney knows or has reason to believe will be available to satisfy any judgment against the defendant in the action. The motion, affidavit or affidavits, and certificate shall be served upon the defendant with the writ of attachment as provided in subdivision (d) of this rule.
(4) An order of approval may be issued for a possessory writ of attachment only upon motion and findings, in addition to the findings required by paragraph (2) or (3), that there is a clear danger shown by specific facts that the attachable property will be sold to a bona fide purchaser or will be removed, concealed, damaged or destroyed by the defendant, by others or by natural causes, if the property is not taken into possession, or if other good cause is shown.
(c)Same: Form. The writ of attachment shall be dated and signed by the clerk. It shall contain the name of the court, the names and residences of the parties, the date of the complaint, and the order of approval issued under subdivision (b) of this rule; be directed to any sheriff or constable in the state or to a person specially appointed to serve process under Rule 4(c); and command that person to attach the goods, chattels or estate of the defendant in the amount specified in the order of approval and to make and properly record due return of the writ with his or her doings thereon including specification of the property attached.
(d)Same: Execution; Service.

(1)Execution. The plaintiff’s attorney shall deliver to an officer or to a person specially appointed to make the attachment the original or a certified copy of the writ, a copy thereof, and a list of property exempt from attachment by statute. The officer or other person shall execute the attachment by taking into possession or otherwise encumbering nonexempt goods, chattels, real estate, or other property of the defendant in the manner provided by statute. Any writ of attachment shall be executed within 30 days after the date of its issuance by the clerk.
(2)Proof of Execution. The officer or other person making an attachment shall make proof of its execution by setting forth on the original or a certified copy of the writ, or a paper attached to it for that purpose, the date or dates and manner of execution and a description of all real estate and a list of all goods, chattels, or other property attached.
(3)Service of Executed Writ. After the attachment has been executed, a copy of the writ and all proofs of execution, together with the list of exemptions, must be promptly served upon the defendant. If the attachment was approved ex parte in accordance with paragraph (3) of subdivision (b), such service shall be made when the summons and complaint are served as provided in Rule 4. If the attachment was approved upon notice and hearing in accordance with paragraph (2) of subdivision (b), or is a subsequent or additional attachment approved under subdivisions (g) and (b), such service shall be made in the manner provided in Rule 5. The plaintiff’s attorney may direct the officer or other person making the attachment to make such service by a specific method under the appropriate rule, or the plaintiff’s attorney may cause such service to be made by another method provided by the appropriate rule.
(4)Filing. The plaintiff’s attorney shall file the original or certified copy of the writ and all proofs of execution with the court as provided in Rule 4(i) or 5(d) and (e).
(e)Dissolution, Modification, or Discharge Upon Motion.

(1) On two days notice to the plaintiff or on such shorter notice as the court may prescribe, a defendant whose property has been attached upon an order of approval issued ex parte as provided by paragraph (3) of subdivision (b) of this rule may appear and move the judge who ordered issuance of the writ or the Presiding Judge of the court in which the action is pending for an order dissolving, modifying, or discharging the attachment. Such appearance shall not submit the person of the defendant to the jurisdiction of the court. The judge shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At the hearing, the plaintiff shall have the burden of justifying the continuance of the attachment. Unless the judge finds 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, bond, or property or credits attached by other writ of attachment or trustee process shown by defendant to be available to satisfy the judgment, the judge shall dissolve the attachment or modify it in amount, as appropriate. If the judge does not dissolve the attachment the judge may modify it or discharge it as provided in paragraph (2) of this subdivision
(2) At any time before entry of final judgment, defendant may move the Presiding Judge of the court in which the action is pending for an order modifying or discharging any attachment. After notice and hearing, the judge may modify the attachment on such terms as to custody, use, insurance, or substitution of other security as are just if the judge finds that some or all of the property attached is exempt or consists of domestic or personal articles or furnishings in defendant’s residence, an automobile used for personal transportation, real or personal property necessary in earning a livelihood, or other property, the encumbrance or temporary deprivation of which would cause significant hardship to defendant. The judge may discharge the attachment in full upon the defendant’s giving bond to the plaintiff in such sum and with such sureties as the judge directs, conditioned for the payment by the defendant of the damages and costs which the plaintiff may recover in the action.
(f)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.
(g)Subsequent or Additional Attachment. If no writ of attachment has been issued or if a writ or writs have issued and cause is shown why an additional attachment should be allowed, the court on motion may issue an order of approval for attachment of real estate, goods or chattels, or other property. The order may issue at any time before judgment, and, notwithstanding the pendency of any appeal, at any time after judgment and before execution may issue. The provisions of subdivision (b) of this rule apply to the motion, except that notice, if appropriate, shall be served upon the defendant in the manner provided in Rule 5.
(h)Taking Personal Property Into Possession. When personal property that has been attached by lodging a copy of the writ of attachment in the appropriate office of record is subsequently to be removed or taken into possession as provided by law, the requirements of paragraph (2) of subdivision (b) of this rule apply, except as provided in paragraphs (3) and (4) thereof. Notice, if appropriate, shall be served upon the defendant in the manner provided in Rule 5.
(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.

V.R.C.P. 4.1

Amended Jan. 11, 1972, eff. May 1, 1972; Feb. 12, 1973, eff. May 1, 1973; March 12, 1975, eff. April 1, 1975; Oct. 30, 1979, eff. Dec. 3, 1979; Nov. 9, 1982, eff. Feb. 1, 1983; Nov. 25, 1986, eff. March 1, 1987; Dec. 9, 1988, eff. March 1, 1989; Dec. 14, 1989, eff. March 1, 1990; Oct. 19, 1999, eff. Dec. 31, 1999; amended Feb. 6, 2006, eff. April 14, 2006; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rule 4.1(b)(2) is amended to extend its 5-day time period to 7 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.