§ 52-278e — Allowance of prejudgment remedy without hearing. Notice to defendant. Claim form. Subsequent hearing and order. Attachment of real property of municipal officers.

Connecticut § 52-278e

• Jurisdiction: Connecticut
• Title 52: Civil Actions
• Ch. 903a: Prejudgment Remedies

Text

(a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon the filing of an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff and that there is reasonable likelihood that the defendant (1) has hidden or will hide himself so that process cannot be served on him or (2) is about to remove himself or his property from this state or (3) is about to fraudulently dispose of or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors or (4) has fraudulently hidden or withheld money, property or effects which should be liable to the satisfaction of his debts. (b) If a prejudgment remedy is issued pursuant to this section, the plaintiff shall include in the process served on the defendant a notice and claim form, in such form as may be prescribed by the Office of the Chief Court Administrator, containing the following language: YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, WHICH YOU MAY WISH TO EXERCISE CONCERNING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE THE RIGHT TO A HEARING (1) TO OBJECT TO THE PREJUDGMENT REMEDY BECAUSE YOU HAVE A DEFENSE TO OR SET-OFF AGAINST THE ACTION OR A COUNTERCLAIM AGAINST THE PLAINTIFF OR BECAUSE THE AMOUNT OF THE PREJUDGMENT REMEDY ALLOWED BY THE COURT IS UNREASONABLY HIGH OR BECAUSE PAYMENT OF ANY JUDGMENT THAT MAY BE RENDERED AGAINST YOU IS ADEQUATELY SECURED BY ANY INSURANCE THAT YOU MAY HAVE; (2) TO REQUEST THAT THE PLAINTIFF POST A BOND IN ACCORDANCE WITH SECTION 52-278d OF THE GENERAL STATUTES TO SECURE YOU AGAINST ANY DAMAGES THAT MAY RESULT FROM THE PREJUDGMENT REMEDY; (3) TO REQUEST THAT THE PREJUDGMENT REMEDY BE DISSOLVED OR MODIFIED OR THAT YOU BE ALLOWED TO SUBSTITUTE A BOND FOR THE PREJUDGMENT REMEDY; AND (4) TO SHOW THAT ANY PROPERTY SUBJECT TO THE PREJUDGMENT REMEDY IS EXEMPT FROM SUCH A PREJUDGMENT REMEDY. (c) The notice and claim form required by subsection (b) of this section shall contain (1) the name and address of any third person holding property of the defendant who is subject to garnishee process preventing the dissipation of such property, and (2) a statement of the procedure set out in subsection (d) of this section for requesting a hearing to move to dissolve or modify the prejudgment remedy. (d) A defendant may move to dissolve or modify a prejudgment remedy allowed pursuant to this section by any proper motion or by return to the Superior Court of a signed claim form that indicates, by the checking of a box on the claim form, whether the claim is an assertion of a defense, counterclaim, set-off or exemption, an assertion that any judgment that may be rendered is adequately secured by insurance, an assertion that the amount of the prejudgment remedy is unreasonably high, a request that the plaintiff be required to post a bond to secure the defendant against any damages that may result from the prejudgment remedy, or a request that the defendant be allowed to substitute a bond for the prejudgment remedy. (e) The court shall proceed to hold a hearing and determine any motion made under subsection (d) of this section not later than seven business days after its filing. If the court determines at such hearing requested by the defendant that there is probable cause that judgment will be rendered in the matter in favor of the plaintiff and, if the plaintiff has relied on a ground set forth in subsection (a) of this section, that there is probable cause to believe such ground exists, the prejudgment remedy granted shall remain in effect. If the court determines there is no probable cause to believe that a judgment will be rendered in the matter in favor of the plaintiff or, if a ground set forth in subsection (a) of this section was relied on, to believe such ground exists, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken. (f) No prejudgment remedy for the attachment of real property of a municipal officer may be granted pursuant to this section in any civil action against such officer for an act or omission, not malicious, wanton, wilful or ultra vires, on the part of such officer while acting in the discharge of his duties where such officer would be protected and held harmless from financial loss and expense under the provisions of section 7-101a .

Legislative History

(P.A. 73-431, S. 5, 8; P.A. 76-401, S. 2, 7; P.A. 85-394; P.A. 90-149, S. 3; P.A. 91-315, S. 1, 5; P.A. 93-431, S. 3, 10.) History: P.A. 76-401 allowed issuance of prejudgment remedy without hearing if there is “probable cause to sustain the validity of the plaintiff's claim”, also requiring as possible conditions that remedy requested “is for an attachment of real property” and that defendant “is not otherwise subject to jurisdiction over his person by the court”; P.A. 85-394 made previous provisions Subsecs. (a) and (c) and added Subsec. (b) requiring the plaintiff to provide notice to the defendant of the existence of certain statutory rights which the defendant may wish to exercise concerning the prejudgment remedy; P.A. 90-149 added Subsec. (d) restricting the prejudgment attachment of real property of a municipal officer; P.A. 91-315 amended Subsec. (a) to replace “upon verification by oath of the plaintiff or of some competent affiant that there is probable cause” with “upon the filing of an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of fact sufficient to show that there is probable cause” and amended Subsec. (c) to require the court to hold a hearing and determine the motion “not later than seven business days after its filing” rather than “expeditiously” and to provide that the criterion for deciding whether the prejudgment remedy should remain in effect or be dissolved when the plaintiff has relied on a ground set forth in Subsec. (a)(2) is whether there is probable cause to believe such ground exists; P.A. 93-431 amended Subsec. (a) to require that the affidavit contain facts sufficient to show that there is probable cause “that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff” rather than probable cause “to sustain the validity of the plaintiff's claim”, and delete the provisions allowing issuance of the prejudgment remedy without a hearing when the prejudgment remedy requested is for “an attachment of real property” or when there is reasonable likelihood that the defendant “neither resides in nor maintains an office or place of business in this state and is not otherwise subject to jurisdiction over his person by the court” or “has stated he is insolvent or has stated he is unable to pay his debts as they mature”, amended Subsec. (b) to replace “If a prejudgment remedy is granted” with “If a prejudgment remedy is issued” and substantially revise the language contained in the notice advising the defendant of his rights including changing the basis on which the defendant may object to the prejudgment remedy and adding the right to request the plaintiff to post a bond, inserted a new Subsec. (c) re contents of the notice and claim form, designated the provisions of former Subsec. (c) re a motion to dissolve or modify as Subsec. (d) and amended said Subsec. to specify the manner in which a defendant may move to dissolve or modify a prejudgment remedy, designated the provisions of former Subsec. (c) re a court hearing as Subsec. (e) and amended said Subsec. to provide that the standard at such hearing shall be probable cause that judgment will be rendered in the matter in favor of the plaintiff rather than probable cause to sustain the validity of the plaintiff's claim, and relettered former Subsec. (d) as Subsec. (f), effective January 1, 1994. Cited. 172 C. 577; 176 C. 432. Statute exhibits all the saving characteristics that law of procedural due process requires. 178 C. 393. Cited. Id., 446; 180 C. 49; 181 C. 42; Id., 524; 184 C. 85; 186 C. 329; 188 C. 69; 192 C. 150. Plaintiff may introduce at hearing additional evidence to buttress initial affidavit. 200 C. 406. Cited. 203 C. 475. Unnecessary to direct ex parte application to the court to which the action was returnable. 208 C. 13. Cited. 218 C. 281; Id., 512; 222 C. 361; Id., 541; 223 C. 68; 224 C. 29; 226 C. 773. Affidavit need not stand alone in determining probable cause; it is the hearing that decides the issue. 1 CA 188. Cited. Id., 349; 2 CA 388; Id., 404; 4 CA 330; 5 CA 90; 6 CA 7; 10 CA 618; 11 CA 289; 14 CA 579; 16 CA 700; 19 CA 85; Id., 256; 20 CA 139; 21 CA 191; Id., 661; 24 CA 169; 26 CA 251; 28 CA 809; 29 CA 48; 32 CA 118; 39 CA 183; 46 CA 399. Nothing in the statutory language of the section can be read to bar a party from meeting its obligation to provide a supporting affidavit by incorporating by reference an affidavit that is already a part of the record and available to the court and all parties. 213 CA 674. Cited. 35 CS 24; 38 CS 98; 39 CS 88; 42 CS 241. Subsec. (a): Subdiv. (1): Since statute requires a factual showing that probable cause exists to sustain the validity of plaintiff's claim, it comports with constitutional requirements. 180 C. 501. Personal knowledge is touchstone of competence of affiant, and determining personal knowledge requires close examination of averments in affidavit. 296 C. 556. Subsec. (e): When affidavit insufficient to establish probable cause, plaintiff may introduce additional evidence to buttress the initial affidavit at the probable cause hearing, but in absence of an affidavit, plaintiff not entitled to provide support for initial application at probable cause hearing. 296 C. 556.