Supreme Judicial Court Rules Supreme Judicial Court Rule 1:03A: Trustee process
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Table of Contents
(1) Availability of trustee process
In connection with any personal action or proceeding not governed by the Massachusetts Rules of Civil Procedure, the Massachusetts Rules of Domestic Relations Procedure (adopted by the judges of the Probate and Family Court Department), or the District/Municipal Courts Rules of Civil Procedure, trustee process may be used in the manner and to the extent provided by law, but subject to the requirements of this rule, to secure satisfaction of a judgment which the plaintiff may recover, provided, however, that no person shall be adjudged trustee for any amount due from him to the defendant for wages or salary for personal labor or services of the defendant except on a claim that has first been reduced to judgment or otherwise authorized by law; and in no event shall the attachment exceed the limitations prescribed by law.
(2) Necessity of prior hearing
No trustee process may be served unless attachment on trustee process for a specified amount has been approved by order of the court. Except as provided in paragraph (8) 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.
A plaintiff who desires to trustee goods, effects, or credits of the defendant shall file in the court to which the action is returnable the writ, properly completed, the declaration, and a motion for approval of attachment on trustee process. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in paragraph (10) of this rule. Except as provided in paragraph (8) of this rule, a copy of the writ, declaration, motion and supporting affidavit or affidavits, together with notice of hearing thereon, shall be mailed to the defendant by certified mail, return receipt requested, at his last known place of residence, or delivered to him, seven days (or if the credits to be attached include wages, ten days) at least before the date set for the hearing.
Except as provided in paragraph (7) of this rule, any trustee process shall be served within thirty days after the date of the order approving the attachment. Promptly after the service of the trustee process upon the trustee or trustees, a copy of the trustee process with the officer's endorsement thereon of the date or dates of service shall be mailed to the defendant in the manner provided in paragraph (3).
(4) Appearance of defendant
Inclusion of a copy of the writ in the notice of hearing shall not constitute personal service of the writ upon the defendant. The notice shall inform the defendant that by appearing to be heard on the motion for approval of an attachment he will not thereby submit himself to the jurisdiction of the court nor waive service of the writ and summons or citation upon him in the manner provided by law.
(5) Answer by trustee; subsequent proceedings
A trustee shall file, but need not serve, his answer, under oath, or signed under the penalties of perjury, within the time prescribed in G. L. c. 246, § 10 , unless the court otherwise directs. The answer shall disclose plainly, fully, and particularly what goods, effects or credits, if any, of the defendant were in the hands or possession of the trustee when the trustee process was served upon him. The proceedings after filing of the trustee's answer shall be as provided by law. A trustee's failure to file an answer within the time allowed by this rule shall subject him to default in accordance with law.
(6) Trustee process in third-party action
Trustee process may be used by a party bringing a third-party action in the same manner as upon an original action.
(7) Subsequent trustee process
Either before or after expiration of the applicable period prescribed in paragraph (3) of this rule for serving trustee process, the court may, subject to the provisions of paragraph (8) of this rule, order another or an additional service of the trustee process upon the original trustee. A trustee not named in the original writ may be served subject to the provisions of all paragraphs of this rule, except that if the defendant has previously been served with process the plaintiff need not mail him a copy of the writ; and if the plaintiff has previously filed any motion pursuant to paragraph (3) of this rule, or paragraph (3) of Rule 1:04A, he need not mail the defendant a copy of either the writ or the declaration.
(8) Ex parte hearings on trustee process
An order approving trustee process for a specific amount may be entered ex parte upon findings by the court that there is a reasonable likelihood that the plaintiff will recover judgment in an amount equal to or greater than the amount of the trustee process over and above any liability insurance known or reasonably believed to be available, and that either (a) the person of the defendant is not subject to the jurisdiction of the court in the action, or (b) there is a clear danger that the defendant if notified in advance of the attachment on trustee process will withdraw the goods, effects or credits from the hands and possession of the trustee and remove them from the Commonwealth or will conceal them, or (c) there is immediate danger that the defendant will dissipate the credits, or damage or destroy the goods or effects to be attached on trustee process. The motion for an ex parte order shall be accompanied by a certificate by the plaintiff or his attorney of the amount of any liability insurance which he knows or has reason to believe will be available to satisfy any judgment against the defendant in the action, and shall be supported by affidavit or affidavits meeting the requirements set forth in paragraph (10) of this rule.
(9) Dissolution or modification of ex parte trustee process
On two days' notice to the plaintiff, or on such shorter notice as the court may prescribe, a defendant whose goods, effects or credits have been attached on trustee process pursuant to an ex parte order entered under paragraph (8) of this rule may appear, without thereby submitting his person to the jurisdiction of the court, file a motion, supported by affidavit, for 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. One day at least before such hearing the plaintiff shall furnish the defendant with a copy of the writ, declaration, motion for the ex parte order, and supporting affidavits. At the hearing the plaintiff shall have the burden of justifying any finding in the ex parte order which the defendant has challenged by affidavit. Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of an attachment that is otherwise available by law.
(10) 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 and belief, and, so far as upon information and belief, shall state that he believes this information to be true.
(11) Form of hearing
At any hearing held under this rule, either party may adduce testimony and may call witnesses (including any opposing party).
The term "plaintiff" shall include a petitioner; "defendant" shall include a respondent; "writ" shall include a summons or an order of notice in the action or proceeding; "declaration" shall include any initial pleading; and "judgment" shall include an order or decree.