Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Spring 2003, Volume 2, Number 2
How to Get a Release of Prior Attachment and/or Execution
by Donald Brown, Paralegal
(Ward Graham, co-contributor)
Sticking within the lines of Ward Graham's "Title Standard Spotlight" in the last edition of The Massachusetts Focus, we will mention how we are able to get a release of an attachment and execution when they show up as outstanding matters of record against a prior owner. In this article, we explore different ways in which we may be able to get a release of a prior attachment or execution along with a cautionary note about avoiding triggering what turns out to be a "live" attachment or execution.
We start with trying to get a release of a prior attachment. First, we must clear one thing up before we go any further. In many cases, especially these days, we may feel that we do not have the time to go back and wait for the prior settlement attorney to pull his or her file to find out how he or she dealt with the issue at the prior closing. However, this is where we should start because that attorney may have paid the attachment off at the closing and obtained, but simply failed, to record the appropriate release, which may still be sitting in the file ready to go. It's always worth the shot.
Another way we can get valuable information is by calling the civil clerk's office in the court where the action was brought. You might ask, well, how do I find the phone number for the clerk's office, especially when it's a court outside my county? If you have access to a Lawyers Diary and Manual, a.k.a. "the Red Book," look in the index under courts and offices. This will give you the necessary information for the court that you are looking for. Once you've contacted the clerk's office, in many cases, the clerk can pull up the docket report on his or her computer and determine if the action is still active or has been dismissed, gone to judgment and, if judgment was for the plaintiff, if the judgment has been satisfied or, if you were dealing with an attachment, whether an execution issued that you haven't found yet. If it turns out that the case has been dismissed, a judgment has been rendered for the defendant (with no further appeal) or a judgment for the plaintiff has been satisfied, the clerk can effectively release the attachment by way of a certificate establishing which of these occurred. Once you've obtained and recorded the certificate, then the attachment will be deemed released in accordance with the rules discussed in Ward's previous article.
Sometimes, the clerk may ask you to call one of the attorneys involved in the case if the status of the case appears to be unclear. Other times, you may be prompted to call one of the attorneys even without suggestion by the court clerk. In either case, if you're contemplating contacting the plaintiff's attorney in a case where you are not absolutely certain that the debt has been fully satisfied, you should pause and consider the possible downside. There may be problems that can arise when doing this. As Ward's article discussed, Title Standard No. 49, para. 3, states in part, "The expiration of an attachment is six years from the date of filing in the Registry of Deeds or from the date of the most recent bringing forward of the attachment." This is very important to keep in mind when it comes to handling this very sensitive issue. You might actually set off an enforcement of the lien or a carrying forward of the lien by tipping off plaintiff's counsel. Say, for instance, that there was an attachment or an execution recorded somewhat less than six years ago and would actually be ready to expire by statute in a few weeks or months. You may tip off the creditor's attorney that the attachment or execution is about to expire, thereby prompting the attorney to bring the lien forward by recording the appropriate document in the registry of deeds. Some collection attorneys may actually have a tickle system for these types of cases and may go ahead and record the proper document to have the lien brought forward on or before the day that the attachment or execution was going to expire even without your prompting. There's nothing you can do about that, but you don't want to be the one to inadvertently prompt such action in the event the plaintiff's attorney does not have such a sophisticated tickler system.
With respect to a prior execution, again, I would first start with the prior settlement attorney to find out how he or she dealt with the execution at the time of his or her transaction. If the settlement attorney establishes that he or she paid the full amount of the execution (the face amount plus interest, etc.) to the creditor's attorney at the time of the prior closing, we can feel more comfortable calling the creditor's attorney to see if he or she can confirm the same. Keep in mind the caution discussed above if there is any doubt about the payoff of the execution as part of the prior transaction.
As with attachments, another way we can research the a status of an execution case is by calling the court clerk. If the creditor's attorney returns the execution to the court and marks that it is returned satisfied in full, you can ask the court clerk for a clerk's certificate establishing the satisfaction of the execution. Once that's recorded, the execution will be deemed released as Ward described in his earlier article.
However, what if neither the sheriff nor the creditor or his or her attorney has notified the court that the debt has been satisfied in full but we do know that the debt was paid? That's when you will have to contact either the sheriff or the plaintiff's attorney to arrange either the return to the court showing satisfaction (so you can then get the clerk's certificate) or for an actual release by the creditor. When we are getting the release of an execution from the creditor, we must remember that a release of the execution from the creditor/plaintiff's attorney would not be sufficient to dissolve the execution. Unlike an attachment, which can be released by the plaintiff's attorney, an execution must be released by the sheriff with the creditor/plantiff.
One other thing to keep in mind, especially if the court clerk advises that the execution was not returned to the court, is that there is always the possibility of an appeal. So when you're talking to the clerk's office, if no return has been made to the court, make sure you ask whether there was a notice of appeal filed. If so, levy on the execution is usually stayed and that would explain why it hasn't been returned. It also means that the case is still active and there remains the possibility that the defendant may ultimately prevail, in which case, of course, the execution may dissolve. In that case, it's possible that the prior closing occurred based on an escrow or an indemnity and contact with the prior settlement agent may reveal that as the basis upon which he or she closed the prior deal without actually paying off the debt. If the case is ultimately resolved after appeal in the defendant's favor, again, a clerk's certificate establishing that fact is the appropriate document to obtain and record in order to release the execution. You could ask the plaintiff creditor for a release, but, under the circumstances, it is doubtful you'd get it.