Among the many strategies used in debt collection law, there are attachments. And with attachments, there are two types – with notice to the defendant and without (ex parte). Generally speaking, courts are reluctant to issue ex parte attachments on real estate because fraudulent transfers of real estate are traceable. There are particular times when a court may move forward with a real estate attachment. For example, courts allow ex parte attachments of real estate where:
- A sale is pending on the property.
There is danger of the asset being concealed should the defendant be given advanced notice of the attachment.
- An immediate danger exists that the defendant will damage or destroy the property.
A fraudulent conveyance is apparent, i.e. when a guarantor of debt puts real estate property into a “trust”. This is called a “Special Real Estate Attachment” and allows us to obtain an attachment on both the debtor and its ownership interest of the “trust”.
- The debtor has exhibited a pattern of conduct indicating that there is a clear danger that if the debtor if notified in advance of the attachment will convey, or will conceal same.
As with all courts of law, different judges interpret the attachment standards differently. There are some judges who will not issue an ex parte attachment under any circumstance. Then there are others who will issue an ex parte attachment based on the credibility of the debtor (meaning there is a threat that the debtor will damage or sell a property with advanced notice of an attachment).
If you are in need of a qualified, experienced, and knowledgeable debt collection attorney in Massachusetts, please call our office at 508-763-6604 or email us at [email protected]