RULE 2-115. ATTACHMENT BEFORE JUDGMENT
West's Annotated Code of MarylandMaryland Rules
MD Rules, Rule 2-115
RULE 2-115. ATTACHMENT BEFORE JUDGMENT
(a) Request for Writ. At the time of filing a complaint commencing an action or while the action is pending, a plaintiff entitled by statute to attachment before judgment may file a request for an order directing the issuance of a writ of attachment for levy or garnishment of property or credits of the defendant. The request may be made ex parte. The plaintiff shall file with the request an affidavit verifying the facts set forth in the complaint and stating the grounds for entitlement to the writ. The request and affidavit need not be served pursuant to Rule 1-321 at the time of filing.
Cross reference: Code, Courts Art. §§ 3-302, 3-303, 3-304, 3-305.
Committee note: This section abolishes a former practice of having two separate cases, the “short note case” and the “attachment case.”
(c) Proceedings on Request for Writ. The court shall review the complaint, any exhibits, and the supporting affidavit. The court may require the plaintiff to supplement or explain any of the matters set forth in the documents or to provide further information regarding the property to be attached. If the court determines that the plaintiff is entitled to the writ of attachment, it shall order issuance of the writ conditioned on the filing of a bond by the plaintiff for the satisfaction of all costs and damages that may be awarded the defendant or a claimant of the property by reason of the attachment. The order shall prescribe the amount and security of the bond.
(d) Issuance of Writ. Upon entry of the order and the filing of the bond, the clerk shall issue one or more writs of attachment and shall attach to each writ a copy of the supporting affidavit filed with the request. When the writ directs a levy on the property of the defendant, the procedure shall be in accordance with Rules 2-641 and 2-642. When the writ directs a garnishment of property or credits of the defendant, the procedure shall be in accordance with Rule 2-645, except that no judgment shall be entered against the garnishee until a judgment is entered for the plaintiff on the claim. In applying Rules 2-641, 2-642, and 2-645, the plaintiff shall be treated as a judgment creditor and the defendant shall be treated as a judgment debtor, and a statement of the amount of the plaintiff's claim shall be treated as a statement of the amount owed under the judgment.
(e) Proceedings on Complaint. If the request for the writ of attachment accompanies the complaint, the clerk shall issue a summons pursuant to Rule 2-112 upon the filing of the complaint. If the whereabouts of the defendant are unknown or the summons is not served despite reasonable efforts to effect service and if the defendant does not voluntarily appear, the plaintiff may seek an order of publication pursuant to Rule 2-122 for in rem jurisdiction. The court may provide for additional notice to the defendant by any means it deems appropriate.
(f) Dissolution of Attachment for Lack of Service. An attachment made before service of original process dissolves 60 days after making the levy or serving the garnishee unless before that time the summons is served upon the defendant or first publication is made pursuant to Rule 2-122, provided that publication is subsequently completed. Upon request made within the initial 60 day period, the court for good cause may extend the attachment for not more than 60 additional days to permit service to be made or publication commenced pursuant to this section.
(g) Release of Property or Dissolution of Attachment. A defendant who has appeared may obtain release of the attached property by posting a bond in an amount equal to the value of the property, as determined by the court, or in the amount of the plaintiff's claim, whichever is less, conditioned upon satisfaction of any judgment that may be recovered.
Upon motion of a defendant who has appeared, the court may release some or all of the attached property if it finds that (1) the complaint has been dismissed or settled, (2) the plaintiff has failed to comply with the provisions of this Rule or an order of court regarding these proceedings, (3) the plaintiff fails to demonstrate the probability of success on the merits, (4) property of sufficient value to satisfy the claim and probable costs will remain subject to the attachment after the release, or (5) the attachment of the specific property will cause undue hardship to the defendant and the defendant has delivered to the sheriff or made available for levy alternative property sufficient in value to satisfy the claim and probable costs.
Upon motion of a defendant or garnishee, the court may release some or all of the attached property on the ground that by law the property is automatically exempt from attachment without the necessity of election or it may dissolve the attachment on the ground that the plaintiff is not entitled to attachment before judgment. If the motion is filed before the defendant's answer is due pursuant to Rule 2-321, its filing shall be treated as an appearance for that purpose only.
A party desiring a hearing on a motion filed pursuant to this section shall so request in the motion or response and, if requested, a hearing shall be held promptly.
(i) Retention of Levied or Garnished Property. All property and funds coming into the possession of the sheriff by virtue of an attachment shall be retained during the pendency of the action unless otherwise directed by the court. At the request of either party, the court may direct the sale or other disposition of any perishable property upon such terms and conditions as it deems just.
(k) Judgment for Plaintiff. If personal jurisdiction was not obtained over the defendant, any judgment for the plaintiff shall be an in rem judgment against the attached property, and entry and satisfaction of the judgment will not bar further pursuit of the plaintiff's claim in the same or another action for any unpaid balance. When judgment is entered for the plaintiff, any funds paid to or collected by the sheriff and the proceeds of any pre-judgment sales of attached property shall be applied toward satisfaction of the judgment and the court shall order the sale of any other attached property to the extent necessary to satisfy the judgment. If personal jurisdiction was obtained over the defendant, the plaintiff may enforce the judgment as provided in Chapter 600 to the extent it remains unsatisfied after application of the proceeds from the attachment.
Source: This Rule is derived as follows:
Section (a) is in part new and in part derived from former Rule G40 a and b.
Section (b) is derived from former Rule G43.
Section (c) is derived from former Rule G44.
Section (d) is in part derived from former Rule G45 and in part new.
Section (e) is new.
Section (f) is new.
Section (g) is derived from former Rule G51.
Section (h) is new.
Section (i) is in part new and in part derived from former Rule G60.
Section (j) is new.
Section (k) is derived from former Rule G59.
[Adopted April 6, 1984, eff. July 1, 1984. Amended April 7, 1986, eff. July 1, 1986; July 16, 1992.]
MD Rules, Rule 2-115, MD R RCP CIR CT Rule 2-115
Current with amendments received through November 15, 2019.
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