A. IF YOU ARE A CREDITOR, MASSACHUSETTS HAS A REMEDY THAT MAY GO ALONG WAY IN HELPING YOU RECOVER YOUR MONEY-THE TRUSTEE ATTACHMENT.
Given that Massachusetts has a host of creditor's remedies that can be used both at the beginning, during and after a judgment is obtained it might be in your businesses' best interest to consider the trustee or bank attachment to assist you in securing the monies you are owed.
A. Trustee Process Attachments without notice. As a creditor, the best strategy to employ to get your money is to put as much leverage on the defendant as possible, particularly at the beginning of a case. As a creditor's attorney over many years, I am all too familiar with the ongoing concern that assets will dissipate over time in many instances. For this reason, a no notice or ex parte trustee attachment is an excellent remedy to use as it permits your business to essentially "freeze" your adversary's bank account. Under Massachusetts Rules of civil procedure there are two ways to do this-with notice and without notice. As a creditor, you always want to put yourself in a position of moving forward on an ex parte or no notice basis as it is this gives you a distinct advantage of freezing a bank account or accounts at any point during a legal action. As funds can be moved in a matter of minutes in this day of electronic banking, positioning your case to qualify as a no notice motion is essential. Keep in mind, however, that in order to move without notice against a debtor's bank account you need to be able to show that you have facts that establish that there is a "clear danger" that the debtor will transfer, assign and/or conceal the funds your company is seeking to attach.
B. How to prove "clear and convincing danger." This will, of course, vary from case to case but suffice to say that you need to demonstrate facts which show fraud, misrepresentation or some other kind of bad or dishonest business practice that would allow the court to find that if you did not get a trustee attachment that your legal rights would be jeopardized. From past experience if a creditor demonstrates that the other party has broken an agreement, has concealed money, has gone in and out of bankruptcy to avoid creditors and/or has falsified documents this is usually enough to get over the threshold to get the attachment without notice. The other two factors that must be shown include a reasonable likelihood of success on the merits of your claim and that there is no liability insurance to cover your businesses' claim.
C. The filing of a complaint motion and affidavit.To avail yourself to this remedy you must first file a complaint in court to be accompanied by a motion to attach without notice. In support of those papers, you are required to file an affidavit by a person who has the most first- hand knowledge of the case. The affidavit is the most important piece of the puzzle because it tells the court why it should grant an attachment of a debtor's bank account without notice to the debtor. This is your opportunity to tell your story in a factual and non conclusory way as to why a no notice attachment should be allowed given the presence of the various factors discussed above. Quite often, I will have clients append to their affidavits certain material documents ( i.e. letter from the debtor) that will work to enhance, clarify and objectify the assertions raised in the affidavit. For example, if you state in your affidavit that the debtor broke an agreement with you to make payments and did so on several occasions then it would behoove you to attach any letters from the debtor that prove this point. Even text messages and emails can be used for support in these situations.
D.Property exempted from Trustee process. While the rules permit for wide latitude for trustee attachments with or without notice there are certain kinds of property which cannot be attached and those are listed under G.L.c.246, section 32 to include monies in payroll designated accounts and monies that are being held in the hands of a public officer to name a few.
E. Trustee attachments with notice. As an alternative to bank attachments without notice are bank attachments with notice. All this means is that you notify the debtor in advance of you intention to file such a motion to attach. In some cases, particularly where you are seeking recovery against a larger company the apprehension of having the money be transferred or depleted is not the same for obvious reasons. And, moreover, the threshold to get a bank attachment with notice is much easier as it only considers two factors: 1. Your reasonable likelihood of success on the merits and 2. That the debtor does not maintain liability insurance to cover the monies sought on the attachment. A creditor is not required to show a "clear and convincing danger" when seeking a bank attachment with notice.
Once again, trustee/bank attachments are a very effective way to gain leverage on any debtor and, if successful, more often than not force a quick resolution to any case. To avail yourself to this effective remedy you must receive the best professional guidance and experience to assist you. At the Katz Law Group, we have helped hundreds upon hundreds of creditors successfully attach debtor's bank accounts without notice under the appropriate circumstances and we have been doing it for 36 years. We know how to position our clients' cases to get the maximum recovery in each and every case. Please feel free to call us at 508-480-8202 to assist you in recovering your money.