Committee Comments on 1973 Adoption

This revision of ARCP 64 responds to the need to strike a reasonable balance between the creditor’s right to enforce his remedy and the debtor’s right to procedural due process. The original rule was drawn at a time when Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) was the authoritative precedent. Since Fuentes, the law in this area has been supplemented by Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) and North Georgia Finishing Co. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). In Fuentes, the court recognized that there could be instances where a creditor could make a showing of immediate danger that a debtor will destroy or conceal disputed goods. See Fuentes, supra at 93. This reference to such a possibility was made in a context which gave rise to the implication that a narrowly drawn procedural guideline could constitutionally permit summary seizure without a hearing. The Committee Comments to original ARCP 64 referred to this construction of Fuentes as the authority for the last sentence of former ARCP 64 which authorized prejudgment seizure without notice in cases where the defendant was about to remove or conceal the property. However, former ARCP 64 did not give any outline of the procedure to be followed in such instances. The Alabama statute (Tit. 7, § 918 Code of 1940) had been declared constitutionally defective in light of Fuentes at the instance of a plaintiff who had received no notice or hearing prior to seizure of personalty in Yates v. Sears, Roebuck, and Company, 362 F.Supp. 520 (M.D.Ala.1973) but the district court expressly reserved the question of the unconstitutionality of the detinue statute when applied subject to original ARCP 64.

Fuentes became the object of a rather narrow construction as many courts interpreted it to require notice and hearing. Mitchell has been said to have “… repudiate(d) aspects of the Fuentes decision which established ‘a Procrustean rule of a prior adversary hearing’ while clearly not rejecting the decision itself in Fuentes.” Hutchinson v. Bank of North Carolina, 392 F.Supp. 888 (M.D.N.C.1975). Now that Mitchell and Di-Chem have clarified the procedures to be followed in an application for prejudgment seizure without a hearing and have eliminated the doubt that once existed as to whether such seizure was appropriate under any circumstances, revised ARCP 64 has been promulgated so as to keep this aspect of Alabama law current with the latest pronouncements of the United States Supreme Court.

ARCP 64(a) makes available all statutory procedures for seizure of person or property except to the extent that these laws are invoked for the purpose of recovery of a security interest in personal property prior to judgment. An effort to use these laws in the excepted area calls into play the additional requirements of ARCP 64(b).

When the action is for recovery or possession of specific personal property under the detinue statute (Code of Ala., § 6-6-250 et seq.) or any other provision of law whereby the owner of a security interest in personal property seeks to recover specific personal property prior to judgment, the requirements of ARCP 64(b) are superimposed over the statutory procedure that otherwise exists in such cases. Thus, the provisions for prejudgment seizure that have long been found in the Code still apply but with and subject to the additional requirements of ARCP 64(b). By way of example, the requirement of posting a bond as a necessary step in obtaining prejudgment seizure as set forth at Code of Ala., § 6-6-250, remains in effect, but subject to the further requirements of ARCP 64(b) in the area of affidavit and proceedings thereon.

The affidavit called for at ARCP 64(b)(1) must be on personal knowledge except where allegation on information and belief is permitted by ARCP 64(b)(1)(C) dealing with the cause of wrongful detention, a circumstance which, by its nature, would not ordinarily be within actual knowledge.

While ARCP 64(b)(2)(B) does authorize a prejudgment seizure without notice when the risk of concealment, transfer or other disposition of or damage to the property is real, ARCP 64(b)(1)(D), the subsection providing for a statement In the affidavit of risk of injury, was drawn in contemplation of the eventuality that a risk of injury which would justify prejudgment seizure without notice will not be present in many cases where an affidavit is filed. In cases where no allegation or risk of injury is appropriate under the facts, the further proceedings on the affidavit and application for prejudgment seizure will be governed by ARCP 64(b)(2)(C), the subsection providing for notice and hearing in advance of prejudgment seizure.

The events as to which there must be a real risk of occurrence before prejudgment seizure without notice or hearing include “concealment, transfer or other disposition of or damage to the property.” See ARCP 64(b)(1)(D). These categories should be broad enough to protect the plaintiff from abuse of the property by a debtor through such practices as “stripping” of automobiles or hiding out consumer goods with relatives. At the same time, the requirement that the court, not a clerk, find that such risk be “real” before prejudgment seizure without notice can be ordered (ARCP 64(b)(2)(B) ) should safeguard against abuse of the procedure by a creditor who makes a “boilerplate” allegation of risk of injury. While use of the official forms is encouraged, the promulgation of a form for the necessary affidavit should not be construed as an invitation to prepare such boilerplate allegations of critical aspects of the affidavit, particularly in the area of the statement of risk of injury under ARCP 64(b)(1)(D). Use of such a technique might justify judicial discounting of the creditor’s assertion of “real” risk when the court is asked to issue the writ without notice under ARCP 64(b)(2)(B).

Unlike the predecessor rule, this revision sets out clearly the procedure to be followed when the judge is called upon to enter an order for prejudgment seizure without notice. The official forms that have been promulgated with this rule are drawn so as to simplify implementation of the time limits. Note that, under ARCP 64(b)(2)(B), when a defendant requests a hearing, the writ expires unless a hearing is held within 15 days from the seizure and, after such hearing, the court orders the seizure to remain in effect. This procedure puts the burden of getting the matter set down for a hearing on the party who seeks the fruits of the court-ordered seizure. Of course, once a hearing date has been set, notice must issue to the defendant of the time and place of the hearing. A failure to appear at the hearing after proper notice, regardless of whether the hearing is on the issue of dissolution under ARCP 64(b)(2)(B) or on the issue of allowance of the writ of seizure under ARCP 64(b)(2)(C) shall be deemed a waiver of any objections to pre-judgment seizure. Further, since the initial findings under ARCP 64(b)(2)(B) and ARCP 64(b)(2)(C) are both preliminary, the burden of proof on a hearing under either subdivision remains on the plaintiff since he is the party who has made the affidavit for prejudgment seizure and who has sought the benefit of judicial intervention in the creditor-debtor relationship. ARCP 64(b)(2)(C), last sentence, speaks expressly to this point in connection with a hearing on initial issuance of the prejudgment seizure but the standard should also be applied when a hearing is held under ARCP 64(b)(2)(B) when the issue is dissolution of a writ issued without notice.

Committee Comments to Amendment Effective March 8, 1989.

The revision to Rule 64 that became effective on October 28, 1975, sought to eliminate constitutional objections to Alabama statutory law dealing with process calculated to disrupt possession of property rights without a hearing. The revision superimposed provision for notice and opportunity to be heard over the statutory procedure for recovery of possession of specific personal property under the detinue statute or any other provision of law whereby the owner of a security interest in personal property seeks to recover specific personal property prior to judgment. Consequently, the revision, by its terms, did not deal with attempts to interfere with possession of property through a writ of attachment. In Jones v. Preuit & Mauldin, 822 F.2d 998(11th Cir. 1987) (on rehearing, modifying 808 F.2d 1435 (11th Cir. 1987)), the question of the constitutionality of Alabama’s attachment procedure was directly addressed. The court found that Alabama’s attachment procedure was not constitutionally defective in that § 6-6-148, providing a remedy to the defendant in an attachment case, constituted adequate safeguard. In a dissenting opinion, Judge Johnson, the author of the initial panel decision, which had proceeded on an assumption of unconstitutionality, questioned the majority’s conclusion that the statutory procedure of§ 6-6-148 was an adequate substitute for the procedure set forth at Rule 64(b). In any event, both the majority and the minority were in accord with the unconstitutionality of attachment procedure in Alabama if the writ was issued by the clerk as opposed to a judicial officer.

Rather than have separate processes govern essentially the same activity it is logical and constitutionally appropriate to amend Rule 64 so auto bring the attachment procedure within the sweep of the constitutional protection as available under former Rule 64(b) which, as earlier noted, was limited to seizure involving protection of a security interest in personal property.

Committee Comments to October 1, 1995, Amendment to Rule 64

The amendment is technical. No substantive change is intended.