(a) Availability of Trustee Process. In any personal action under these rules except actions only for specific recovery of goods and chattels, for malicious prosecution, for slander by writing or speaking, or for assault and battery, trustee process may be used, in the manner and to the extent provided by law, but subject to the requirements of this rule, for the purpose of securing satisfaction of the judgment for damages and costs which the plaintiff may recover, provided, however, that no person shall be adjudged trustee for any amount due from that person to the defendant for earnings. The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commissions, bonuses or otherwise, and includes periodic payments pursuant to a pension or retirement program. Trustee process 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 by Maine Consumer Credit Code.
(b) Summons to Trustee: Form. The summons to a trustee shall bear the signature or facsimile signature of the clerk, be under the seal of the court and contain the name of the court and the names of the parties, be directed to the trustee, state the name and address of the plaintiff’s attorney, a specified amount for which the goods or credits of the defendant are attached on trustee process or specific goods or credits designated by the court for attachment, and the time within which these rule require the trustee to make disclosure, and shall notify the trustee that in case of failure to do so the trustee will be defaulted and adjudged trustee as alleged. The trustee summons shall also state the name of the justice or judge who entered the order approving attachment on trustee process and the date thereof.
(c) Same: Service. The trustee summons 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 trustee summons shall be served by a sheriff or a deputy within the sheriff’s county. The plaintiff’s attorney shall deliver to the officer making service the original trustee summons upon which to make return of service and a copy thereof for service upon the trustee. The trustee summons shall be served in like manner and with the same effect as other process.
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 (i) 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 aggregate sum equal to or greater than the amount of the trustee process and any insurance, bond, or other security, and any property or credits attached by writ of attachment or by other trustee process shown by the defendant to be available to satisfy the judgment.
Trustee process shall be sought by filing with the complaint 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 4A(i). Except as provided in subdivision (i) of this rule, the motion and affidavit or affidavits with notice of hearing thereon shall be served upon the defendant in the manner prescribed in Rule 4 at the same time the summons and complaint are served upon the defendant.
A defendant opposing a motion for approval of attachment on trustee process 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 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 service shall be served upon the defendant in the manner provided in either Rule 4 or Rule 5.
(d) Approval of Limited Attachment on Trustee Process or Substituted Security.
(1)Attachment of Specific Property. In the order approving an attachment on trustee process, the court shall specify that the attachment is to issue solely against particular goods or credits upon a showing by the defendant (A) that the goods or credits specified are available for attachment on trustee process and would, if applied to satisfy any judgment obtained in the action, yield to the plaintiff an amount at least equal to the amount for which attachment on trustee process 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 on trustee process against the goods or credits 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 on trustee process against the defendant to satisfy a judgment on the claim for which security has been tendered shall be dissolved. Thereafter, no further attachment on trustee process 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 on trustee process against the goods or credits 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) Disclosure by Trustee; Subsequent Proceedings. A trustee shall serve that trustee’s disclosure under oath within 20 days after the service of the trustee summons upon that trustee, unless the court otherwise directs. The proceedings after service of the trustee’s disclosure shall be as provided by law. When a trustee reports for examination, notice thereof shall be served upon the attorney for the plaintiff, and upon motion the court shall fix a time for the disclosure to be made. Before the disclosure is presented to the court for adjudication, there shall be minuted upon the back thereof the name of the attorney for the plaintiff, the name of the trustee with the date of the service of the summons upon that trustee, and the docket number of the action.
(f) Adjudication and Judgment. The proceedings for adjudication on the disclosure of the trustee and for the rendition and execution of judgment and the imposition of costs shall be as provided by law.
(g) Trustee Process on Counterclaim, Cross-Claim or Third-Party Complaint. Trustee process may be used by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim, provided that the trustee resides or, if a corporation, maintains a usual place of business, in the county where the action is pending. If the counterclaim is compulsory under Rule 13(a), the party stating it may use trustee process, even though the trustee does not reside or maintain a usual place of business in the county where the action is pending.
(h) Subsequent or Additional Trustee Process. If no trustee process has issued, or if the time period prescribed in subdivision (c) of this rule for serving trustee process has expired, the court on motion may issue an order of approval for an additional attachment on trustee process. The provisions of subdivisions (c), (d), and (i) of this rule apply to the motion and any trustee process ordered thereunder, except that notice if appropriate shall be served upon the defendant in the manner provided in Rule 5.
(i) Ex Parte Hearings on Trustee Process. An order approving trustee process for a specified 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 attachment on trustee process as provided in subdivision (c) of this rule. The hearing on the motion shall be held forthwith. Such order shall issue if t 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 trustee process and any insurance, bond or other security, or property or credits attached by writ of attachment or by other 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 the attachment on trustee process will withdraw the goods and credits from the hands and possession of the trustee and remove them from the state or conceal them, or otherwise make them unavailable to satisfy a judgment, or (ii) there is immediate danger that the defendant will dissipate the credits, or damage or destroy the goods, to be attached on trustee process. A maximum of one hundred dollars of demand bank accounts of the defendant held by any one trustee shall, however, be exempt from trustee process approved by an ex parte order under this subdivision. The motion for an ex parte order under this subdivision 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 Rule 4A(i).
(j) Dissolution or Modification of Trustee Process. On 2 days’ notice to the plaintiff or on such shorter notice as the court may prescribe, any person having an interest in goods or credits that have been attached on trustee process pursuant to an ex parte order under subdivision (h) of this rule may appear, without thereby submitting to the personal jurisdiction of the court, and move the dissolution or modification of the trustee process, 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 on trustee process, whether issued ex parte or after hearing, to limit the attachment to particular goods or credits 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 goods or credits of the defendant. If a prior attachment on trustee process has been perfected as to goods or credits 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 trustee process that is otherwise available by law.
Author’s Note
The Advisory Committee’s Notes to amend Rule 4B generally refer to the nearly identical provisions of Rule 4A. The Rule 4A notes thus should be referenced to aid in interpretation of Rule 4B.
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.
The term “attachment” taken from Rule 4A, is replaced by the proper reference to “trustee process.”
Annotations:
See Rule 4A, Annotations, except for issues unique to trustee process.
Rule 4B(e): Trustee Default. Butler v. D./Wave Seafood et al., 2002 ME 41.
Rule 4B(g) & (h): Ex parte order appeal. Jim Mitchell and Jed Davis, P.A. v. Lavigne, 2001 ME 67, 4-6.
