Request By:
Mr. Elden F. Keller
Laurel Circuit Clerk
Courthouse
London, Kentucky 40741
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As we understand your letter, you seek an opinion as to the circumstances under which an order of attachment or writ of possession may be issued by the circuit court clerk.
You specifically ask whether an order of attachment may be issued by the clerk where the defendant has not been served with a summons.
Under KRS 425.301, the plaintiff may have an attachment against the property of defendant, where the action is for the recovery of money, provided he meets the terms of subsection (1) or (2) of that statute. Under this section the plaintiff, before an order of attachment issues prior to judgment, must follow the requirements of KRS 425.301(3).
He may also procure an attachment under KRS 425.306, where a debt or liability upon a contract has not matured, provided he meets the terms of that statute.
KRS 425.307 deals with the motion for order of attachment, prior to judgment.
In summary, a plaintiff may, by filing a written motion, procure an order of attachment by filing first a complaint, and after the issuance of a summons in good faith, provided he alleges in the motion the existence of any of the grounds laid out in either KRS 425.301 [recovery of money] or 425.306 [debt or liability upon contract not due], and complies with the remaining requirements of subsection (2) of KRS 425.307. However, before the circuit clerk issues the order of attachment, the clerk must see to it that KRS 425.301(3) has been complied with, unless the defendant has requested a hearing. Subsection (3) of KRS 425.301 provides that before an order of attachment shall issue prior to judgment, the plaintiff must first make a demand in writing [delivered or mailed (registered or certified) to the debtor, along with a copy of the complaint, motion and summons, to his last known place of residence, at least seven (7) and not more than sixty (60) days before such order is sought]. The demand shall contain a statement that the debtor has seven (7) days in which to petition the court for a hearing or in which to pay the claim in full, and that unless a hearing is set or the claim paid, an order will be sought to subject his property to payment of the claim. The statement shall identify the court in which the suit has been filed, the grounds therefor, the date of the demand, the amount of the claim, and the name and address of the plaintiff and his attorney. An affidavit of the plaintiff or his attorney evidencing compliance with this section must be filed before an order of attachment can be issued by the clerk.
There are circumstances under which an order of attachment may be issued ex parte by a judicial officer prior to a hearing. KRS 425.308. But since the clerk is not a "judicial officer" , that procedure does not concern you. See Commonwealth v. Wise, Ky., 351 S.W.2d 491 (1961) 493.
While we have outlined generally the circumstances under which the circuit clerk can issue an order of attachment, we now turn to your specific question as to whether the order can be issued where the defendant-debtor has not been served with a summons. The answer is found in KRS 425.301(3), relating to the demand of plaintiff to the defendant to either pay the claim or ask for a hearing. That subsection specifically requires that a copy of the complaint, motion and summons be either delivered to the debtor or mailed by certified or registered mail [return receipt requested] to the debtor. That is tantamount to requiring that summons must be served on the defendant prior to the issuance of an order of attachment. That is in harmony with the basic rule that where an in personam judgment is sought, personal service must be had.
The statute, KRS 425.301(3), does not provide that the complaint and other documents sent by certified or registered mail can only be signed for by the defendant-addressee, which is the restricted delivery required by CR 4.01. Thus the envelope could be signed for by any person receiving mail at that address under the statute. At this point, it can be noted, keeping in mind that Section 116 of the Kentucky Constitution authorizes the Supreme Court of Kentucky, exclusively, to promulgate the rules of practice and procedure for the Court of Justice, that KRS 425.301(3) suggests a deviation from CR 4.01. However, CR 69.01 permits the service of summons described in KRS 425.301(3). Thus where the summons is mailed to the defendant, the receipt may be signed by the defendant-addressee or by another person normally receiving mail at that address.
Of course the service of process must be complete, where the mail method is used, prior to the issuance of an order of attachment. In other words, there must be a signed receipt in order for the plaintiff or his attorney to make proper affidavit as to compliance with KRS 425.301(3). If either the service under CR 4.01, CR 4.04, or CR 69.01 and KRS 425.301(3) is properly consummated, it will suffice as personal service and sufficient to support an in personam judgment.
The enactment of KRS 425.301 and 425.306 in 1976 was apparently intended to bring Kentucky's prejudgment seizure law into conformity with the principle of procedural due process as required by the Fourteenth Amendment of the Federal Constitution, and as enunciated by the Supreme Court. The crucial element is that the defendant have notice of what the plaintiff is trying to do with defendant's property, and an opportunity to be heard. In Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969), Justice Douglas, for the majority, in referring to an earlier case, said that "In the latter case we said the right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." In another prejudgment seizure case, Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), the court observed [at p. 569, 32 L. Ed. 2d] that "For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.'" The court in Fuentes pointed out that even a temporary, nonfinal deprivation of property is nontheless a "deprivation" in terms of the Fourteenth Amendment.
Where the order of attachment is issued by the clerk under KRS 425.307(3), you ask about the bond.
KRS 425.309 provides that an order of attachment shall not be issued until a bond has been executed by one or more sufficient sureties of the plaintiff in an amount not less than double the amount of the plaintiff's claim. The clerk, in having the bond executed, can look at the complaint to determine precisely the amount sued for.
The issuance of a writ of possession under KRS 425.312 is virtually identical with the procedure outlined in KRS 425.301(3) [order of attachment] . Where the requirements of KRS 425.312(1) are met, the clerk must issue the writ of possession, unless the defendant has requested a hearing. See KRS 425.031 [conduct of hearing by judicial officer] .
Since these remedies of attachment and possession are extraordinary in nature, strict statutory compliance is necessary. See Duo-Therm Division, Motor Wheel Corp. v. Sheergrain, Inc., Ky., 504 S.W.2d 689 (1974), a damage suit for wrongful attachment.