Title Standard Spotlight
Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Winter 2003, Volume 2, Number 1
Title Standard Spotlight
by Ward P. Graham, New England Region Counsel
In this issue of The Massachusetts Focus we will put the spotlight on a Massachusetts Conveyancers Title Standard that comes into play with ever-increasing frequency as a result of our society's growing penchant for debt, divorce and litigation over just about anything: Title Standard No. 49, Dissolution of Attachments.
Overview of Attachments
Attachments usually are obtained at the very beginning of litigation in which a money judgment is sought or anticipated, although it can be obtained at any time prior to judgment. The procedures and rules for obtaining a prejudgment attachment are governed by G.L.c. 223, §42 and Mass.R.Civ.P. Rule 4.1, together with the companion Domestic Relations Rule, Mass.R.Dom.Rel.P. Rule 4.1. The usual form of attachment you've probably all seen, but for those that haven't run into it yet, the basic prescribed form is provided for in Mass.R.Civ.P. Appendix Form 2 and Mass.R.Dom.Rel.P. Appendix Form CJ-D 410. In many cases attachments are legitimately sought because of a plaintiff's genuine concern about having security for any judgment ultimately obtained. Quite often, however, attachments, especially ex parte attachments, are sought as a vexatious means to tie up and encumber a defendant's property so as to force a defendant into settling a case rather than allowing the property to be tied up for the protracted period of time that even the simplest of cases can take. Whatever the motives and legitimacy, however, when we as conveyancers encounter an outstanding attachment, we need to know whether to properly ignore it or how to get rid of it.
Attachments are usually general in form (i.e., against any real estate the defendant owns in the county), but they may be specific to a particular property. For attachments involving land to be effective against "subsequent attaching creditors or purchasers in good faith and for value," G.L.c. 223, §62 requires that the sheriff record "a certified copy of the writ of attachment and so much of his return thereon as relates to the attachment of the estate, in the registry of deeds for the county or district where the land lies." It is the discovery of that recording that triggers our looking into whether, at the time of our transaction, the attachment is still effective or we need to do something to discharge or release it from the record title to the affected real estate. (For purposes of this article, we are going to assume there is not a question about whether the attachment affects the property you're going to be dealing with.) Title Standard No. 49 provides an excellent source of methods for either establishing that the attachment is no longer effective or for getting it discharged or dissolved.
Discussion of Dissolution of Attachments Under Title Standard 49
1. Release/Discharge by Plaintiff, Plaintiff's Attorney or Plaintiff's Administrator or Executor.Subparagraph (1) of Title Standard 49 provides for release of the attachment or part of the real estate attached by recording a release or discharge instrument signed and acknowledged by the plaintiff or the plaintiff's attorney of record at the time the instrument is executed. This method of dissolving an attachment tracks the provisions of G.L.c. 223, §132 referred to in the Comments section of Title Standard 49. However, while not mentioned in the Title Standard, that section of the statute also authorizes an administrator or executor of a deceased plaintiff to provide a discharge or release of the attachment. Having such specific statutory authority for the administrator or executor to release the lien avoids the necessity of having to determine whether the administrator has such authority inherently, under some other statute, under a will or under an order of court.
The Comments section of Title Standard 49 for this subparagraph supplements the statute by providing that a release signed by any attorney associated with a firm is acceptable if the appearance for the plaintiff is by the firm rather than an individual attorney. The Comments also provide that a release signed by the attorney named in the writ of attachment is a representation of authority that the attorney is still the attorney of record. Be careful though. It is doubtful that you can rely on the signature by that attorney if it turns out the attorney has actually filed a notice or motion of withdrawal and, especially, if the withdrawal has been approved. Thus, it is important to double check the docket and/or case file of the action before accepting and recording a release by the plaintiff's attorney unless there is a recitation in the release by the attorney that he or she is still the attorney of record or still represents the plaintiff in the matter.
2. Clerk's Certificate. Subparagraph (2) of Title Standard 49 provides for dissolution of an attachment by obtaining and recording "a certificate of an appropriate official [generally, the clerk] of the court setting forth sufficient facts to establish that the attachment has been dissolved by the court, by filing a bond or by operation of law." This one is a little more open-ended due to the phrase "setting forth sufficient facts to establish" the recited methods of dissolving an attachment. The Comments section of the Title Standard provides helpful references to relevant sections of G.L.c. 223: §§59, 115, 120 and 125. To that we can also add §§106, 108, 113A, 114 and 132 of G.L.c. 223, Mass.R.Civ.P. 4.1 (g) and §4 of G.L.c. 236.
The basic premise regarding dissolution by the court stems, of course, from the adage that "he that giveth may taketh away." As mentioned, the motion procedures for a prejudgment attachment are governed by Mass.R.Civ.P. 4.1. Subsection (f) of Rule 4.1 provides a procedure by which a plaintiff can file a motion for and obtain an ex parte attachment. That's the "giveth" part. Subsection (g), on the other hand, is the "taketh away" part, which provides the defendant with an opportunity and procedure by which to challenge the ex parte attachment and get it dissolved or modified. Unfortunately, defendants and their attorneys are not always good at recording the orders modifying or dissolving the attachment. Thus, whenever you see an outstanding ex parte attachment on record, it may be worthwhile to check the case file to see if the defendant brought a motion to dissolve it and, if successful, simply neglected to record the court order or allowance of the motion at the Registry of Deeds along with a Clerk's Certificate, which would address any appeals, motions for reconsideration, etc.
Statutorily, G.L.c. 223, §106, involving fraudulent attachments, provides a method for petitioning the court to dissolve an attachment on property of "any person, other than the parties, who claims a title or interest therein by a subsequent attachment, purchase, mortgage or other title" and who "disputes the validity and effect of such prior attachment on the ground that the amount demanded in the first action was not justly due or was not payable when it was commenced." Frankly, I've never seen a petition filed under this section, but it's out there and available if you have circumstances that may allow for its use. From a conveyancing standpoint, however, we'd be looking for the court's order on the petition (see §108 of the statute) dissolving the attachment either totally or as to our property, once again, together with a Clerk's Certificate.
Another statutory basis for a motion to dissolve an attachment would be under §115A of c. 223. This statute allows for the defendant to challenge an otherwise valid attachment on the basis that no service was made on him or her. The statute states that "the attachment shall be dissolved unless it appears of record that notice of such action has been given to [the defendant], in such manner as the court orders, within sixty days after the commencement of the action, or within such further time as the court may allow." Where this may be significant is in a situation in which a purchaser, mortgagee or other attaching creditor may come into the chain of title after the issuance and recording of an attachment (by either missing it or ignoring it) and the defendant wants to assist the purchaser, mortgagee or other attaching creditor in gaining priority over the first attaching creditor in the event of the failure of the attaching creditor to properly serve the defendant. Again, I have never seen this basis for dissolving an attachment used, but you never know when it might come in handy someday if you've got a friendly defendant and your client is the subsequent purchaser, mortgagee or attaching creditor, especially if the first attachment was missed for some good reason such as misindexing.
Lastly, there is provision for dissolution of an attachment by virtue of the appointment by a court of competent jurisdiction of a receiver of the attached property under c. 223, §130. This requires that the complaint seeking the appointment be filed within four months after the attachment was made and the statute nonetheless allows the court to continue the attachment in its discretion. You're not likely to be relying on a dissolution of the attachment in this type of situation unless you're dealing with the receiver. In such a case, various court documents may have to be recorded along with a Clerk's Certificate in order to establish the appointment of the receiver and the receiver's authority to deal with the property. While also rarely seen, if you do run into such a situation, you have the benefit of the provisions of §130 dissolving the attachment upon the appointment of the receiver unless the court orders otherwise and this may save you from having to require a specific court order dissolving an attachment where the court didn't deal with it otherwise as part of the receiver appointment process.
b. Dissolution by Bond.
The provisions for "bonding off" an attachment are set forth in §§120 to 129A of c. 223 but the primary procedures are under §§120 and 125. Section 120 of the statute provides for dissolution of an attachment by giving a bond with sureties conditioned to pay the plaintiff's judgment, such sureties to be approved by the plaintiff or by his or her attorney in writing or by a master or the court. Once approved, §123 of the statute requires the defendant to file the bond with the court clerk within 10 days after approval and the attachment is not dissolved until the bond is so filed. Again, a Clerk's Certificate can then be recorded along with a certified copy of the bond and the approval establishing compliance with §§120 and 123.
There is also a provision under §127 of the statute for posting a bond with the court by someone other than the defendant whose property has been attached because the creditor believed (and was sufficiently able to convince the court) that the transfer to them was fraudulent as to the creditor. This procedure could be utilized in a case where the non-defendant title holder can't convince the court of the bona fide character of his or her title holding status so as to seek a dissolution under §114 (attachment unreasonable) but nonetheless needs to get the attachment dissolved, such as in a sale or refinance situation. Section 123 of the statute requires that this type of bond be filed with the court clerk within 10 days after approval as well. While this is another rarely used procedure, it is worthwhile being aware of it in case you do run into it or you may need to use it for a particular client. For record title purposes, dissolution of an attachment by this method, also, would be established by recording a certified copy of the bond together with a Clerk's Certificate showing compliance with the statutory procedures.
c. Dissolution by Operation of Law.
This is the one we see most often. The usual statutory bases for considering an attachment to be dissolved by operation of law and which could give rise to circumstances to which a Clerk could certify are under §§115 and 59 of c. 223 with §59 being read in conjunction with §4 of c. 236, which deals with the recording of a post-judgment execution.
Section 115 of the statute is straightforward. That is the section that provides for dissolution of an attachment upon a final judgment (after any appeals) in favor of the defendant. A certified copy of the final judgment together with a Clerk's Certificate establishing its finality would be recorded for this one.
However, what if no execution is issued and, therefore, the 30-day limit on the life of the attachment based on the date of the execution doesn't kick in? That's where G.L.c. 223, §114A and subparagraph 3 of Title Standard 49 come into play.
3. Expiration of Six (6) Years. Subparagraph 3 of Title Standard 49 provides that an attachment is dissolved upon the expiration of six (6) years from the date of recording in the Registry of Deeds (or filing with the land court Registry District if registered land) of the attachment or the most recent bringing forward of it. The Comments point out that this portion of the Standard is derived from c. 223, §114A. The two points to be emphasized under both the Title Standard and the statute are (1) the six years runs from date of recording, not date of issuance or approval of the attachment and (2) watch out for attachments which have been brought forward for another six years. Also, relating this back to the discussion of the life of an attachment where a post-judgment execution is issued, under §114A, the attachment lasts for six (6) years from recording (or filing) if it turns out that an execution never issued. Remember, as discussed above, where an execution is issued, under c. 223, §59 and c. 236, §4, an attachment will have a maximum life of only 40 days if the execution is not timely recorded (or filed). Thus, it can be extremely important, whenever you see an outstanding attachment more than a few months old, especially one several years old, and no execution has been recorded, to check the court case to see if an execution ever issued. If one did and you can double check the court case and the registry to determine it was never recorded, you may not have to wait for the 6 years to run or seek a dissolution of the attachment by one of the other methods discussed in this article and Title Standard 49. At the same time, keep in mind that c. 223, §114A allows the creditor to bring forward the attachment for successive 6-year periods by merely recording a letter request to do so from the creditor or his or her attorney directed to the Register of Deeds and recorded. So look out for those extensions; they do happen and they can be easily overlooked.
4. Deposit with the Sheriff. This portion of the Title Standard addresses the provisions of c. 223, §128. The Title Standard tracks the statute in providing that an attachment is dissolved by depositing with the attaching officer (usually, the sheriff) a sum of money equal to the amount of the attachment. The thing to keep in mind here is that the depositing of the money is the thing that dissolves the attachment. No approval of or action by the court or the plaintiff or his or her attorney is required. On the other hand, we need to deal with record title. As the court is not involved where dissolution is by deposit with the sheriff, there is no court order, motion, pleading or Clerk's Certificate that can be obtained and recorded. The Comments to the Title Standard help out here by providing that the recording of a receipt from the sheriff would be sufficient evidence of the deposit of the money.
In addition, as discussed by my colleague, Richard Urban, in his "Counsel Questions and Answers" article in the first issue of The Massachusetts Focus (Spring 2002, Vol. 1, No. 1), it is possible to obtain a discharge from the sheriff upon deposit of the sum of the attachment. As Richard pointed out, however, if you have control over the contents of the discharge, try to have it make reference to the statute, if possible, but, at a minimum, try to have it make reference to the amount of money deposited with the sheriff. Otherwise, you'll still have to get a receipt showing the amount deposited.
Although it may go without saying, if you are relying on just the receipt, make sure the amount deposited matches up with the amount of the attachment. And if payment was by check, you may need to get a copy of the cancelled check or verify with the sheriff's office that the check actually cleared.
5. Death of the Debtor. Subparagraph 5 of Title Standard 49 provides for dissolution of an attachment on the death of the [defendant] debtor (a) if the property was owned by the debtor at the date of death and (b) if an administration of the debtor's estate is granted in Massachusetts on an application made within one year after the date of death. As the Comments point out, this portion of the Standard is based on G.L.c. 223, §116 and, indeed, the Standard tracks the statute pretty closely. Although neither the Standard nor the statute mention it, one presumes the term "administration" would include the probate of a will. Also, the reason for the requirement in the Standard that the property be owned by the decedent debtor at the time of death is because the statute exempts attachments against any property the decedent debtor "alienated" before his or her death. Such attachments are not dissolved under this statute or the Title Standard.
There is one additional caveat that bears at least passing note and one that the Title Standard doesn't mention: By its terms, c. 223, §116 only operates as to attachments outstanding at the date of death where "the debtor dies before [the attached property] is taken or seized on execution." Generally, you're going to know if the property has been "taken or seized on execution" before the date of death because you'll see the execution recorded. One would think that recording of the execution under G.L.c. 236, §4 would be necessary to constitute a "taking" or "seizure" on execution. However, I have not found any case law directly addressing that issue. Accordingly, be careful of a situation in which an execution did issue prior to death of the debtor but the recording did not take place until afterward. To be sure we are talking about relatively short time frames here, a 30-day or, perhaps, 40-day window. But if you're dealing sometime down the road with an interest in your title that intervened between the date of death and the recording of an execution that was timely recorded under the statute, but was not recorded prior to the decedent's death, beware of the possible argument by the creditor that the "taking" or "seizure" occurred when the execution was issued (not very viable in my opinion) or when it was placed in the hands of the sheriff (more plausible but no case I'm aware of to support it) and that the recording is merely a "perfection" of the seizure and, therefore, the lien priority of the attachment still carries forward under c. 236, §4 despite the provisions of c. 223, §116. Sounds quite confusing but the good news is that, if you ever see such a situation at all, it's likely to be a once-in-a-career event and we'll work through it with you.
Title Standard No. 49 and the statutes and rules referred to in the Comments and in this article should cover just about any situation you'll see involving attachments and their dissolution. As always, though, if you have any questions about the application of the Standard or the governing statutes and rules to any given situation you encounter, please feel free to call the Stewart Title legal department to discuss the situation with one of the underwriting counsel.
1 Note: The statutory reference in the Comments section of the Standard has a typographical error in it; rather than G.L.c. 233, §132, the reference should be G.L.c. 223, §132. [Back to Text]
2 G.L.c. 236 contains the provisions for "Levy of Executions on Land" based on post-judgment executions issued pursuant to c. 235. [Back to Text]
3 These procedures are also available in the divorce context in accordance with Mass.Dom.Rel.P. 4.1, which relies on and incorporates the provisions of Mass.R.Civ.P. 4.1. [Back to Text]
4 As an aside, I would note that the last paragraph of Rule 4.1 (c) requires that "any attachment of property shall be made within 30 days after the order approving the writ of attachment." Clearly, this is a mandatory provision of the Rule. However, there is nothing I have found in the Rules that provides for any particular consequences for failing to accomplish the attachment within the required 30 days under the rule. Such failure probably is inconsequential in any event because Subsection (e) of the Rule allows the court to order another or additional attachment before or after the expiration of that period. It makes one wonder why the period is specified in the first place. [Back to Text]
5 This would usually occur where the plaintiff believes the defendant is the "true owner" of the attached property even though the title stands in the name of someone else, such as a spouse, relative or trustee. If that's not the case, the wrongfully attached owner can challenge the attachment under this section. [Back to Text]
6 This section contains the same conditions of approval of the sureties as found in §120. [Back to Text]
7 For situations in which the action is in Nantucket County but the attachment is in another county or vice versa, the time limit is sixty (60) days. [Back to Text]
8 This time frame is extended to seventy (70) days for the Nantucket County situation mentioned in the footnote above. [Back to Text]
9 Under G.L.c. 236, §49A, executions last for six (6) years from the date of recording, unless brought forward under the same procedures as for attachments under c. 223, §114A, or unless levy has been made before the 6 years expires. However, if a levy (i.e., sheriff's sale) has occurred before the 6 years expires, the sheriff has three (3) months within which to record the sheriff's deed under c. 236, §21. Hence, title is not free of an outstanding execution until 6 years and 3 months (90 days, plus or minus) after recording, not just the 6 years under §49A. [Back to Text]