ORCP 84 – ATTACHMENT

ATTACHMENT

RULE 84

A Actions in which attachment allowed.

A(1) Order for provisional process. Before a writ of attachment may be issued or any property attached by any means provided by this rule, the plaintiff must obtain, and have recorded in the County Clerk Lien Record, an order under Rule 83 that provisional process may issue.

A(2) Actions in which attachment allowed. The plaintiff, at the time of issuing the summons or any time afterwards, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, in the following cases:

A(2)(a) An action upon a contract, expressed or implied, for the direct payment of money, when the contract is not secured by mortgage, lien, or pledge, or when it is so secured but such security has been rendered nugatory by act of the defendant.

A(2)(b) An action against a defendant not residing in this state to recover a sum of money as damages for breach of any contract, expressed or implied, other than a contract of marriage.

A(2)(c) An action against a defendant not residing in this state to recover a sum of money as damages for injury to property in this state.

A(3) Exception for financial institution. Notwithstanding subsection (2) of this section, no attachment shall be issued against any financial institution, as that term is defined in ORS 706.008, or against the property of a financial institution.

B Property that may be attached. Only the following kinds of property are subject to lien or levy before judgment:

B(1) In actions in circuit court, real property;

B(2) Tangible personal property, including negotiable instruments and securities as defined in ORS 78.1020 except a certificate of an account or obligation or interest therein of a savings and loan institution;

B(3) Debts; and

B(4) The interest of a distributee of a decedent’s estate.

C Attachment by claim of lien.

C(1) Property subject to claim of lien. When attachment is authorized, the plaintiff may attach the defendant’s real property by filing a claim of lien.

C(2) Form of claim; filing.

C(2)(a) Form. The claim of lien must be signed by the plaintiff or plaintiff’s attorney and must:

C(2)(a)(i) Identify the action by names of parties, court, case number, and judgment demanded;

C(2)(a)(ii) Describe the particular property attached in a manner sufficient to identify it;

C(2)()(iii) Have a certified copy of the order authorizing the claim of lien attached to the claim of lien.

C(2)(a)(iv) State that an attachment lien is claimed on the property.

C(2)(b) Filing. A claim of attachment lien in real property shall be filed with the clerk of the court that authorized the claim and with the county clerk of the county in which the property is located. The county clerk shall certify upon every claim of lien so filed the time when it was received. Upon receiving the claim of lien, the county clerk shall immediately record it in the County Clerk Lien Record. When the claim of lien is so recorded, the lien in favor of the plaintiff attaches to the real property described in the claim of lien. Whenever such lien is discharged, the county clerk shall enter upon the margin of the page on which the claim of lien is recorded a minute of the discharge.

D Writ of attachment.

D(1) Issuance; contents; to whom directed; issuance of several writs. If directed by an order authorizing provisional process under Rule 83, the clerk shall issue a writ of attachment. The writ shall be directed to the sheriff of any county in which property of the defendant may be, and shall require the sheriff to attach and safely keep all the property of the defendant within the county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff’s demand, the amount of which shall be stated in conformity with the complaint, together with costs and expenses. Several writs may be issued at the same time to the sheriffs of different counties.

D(2) Manner of executing writ. The sheriff to whom the writ is directed and delivered shall note upon the writ the date of such delivery, and shall execute the writ without delay, as follows:

D(2)(a) Personal property not in possession of third party. Tangible personal property not in the possession of a third person shall be attached by taking it into the sheriff’s custody. If any property attached is perishable, or livestock, where the cost of keeping is great, the sheriff shall sell the same in the manner in which property is sold on execution. The proceeds thereof and other property attached shall be retained by the sheriff to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment. Plaintiff’s lien shall attach when the property is taken into the sheriff’s custody.

D(2)(b) Other personal property. Tangible and intangible personal property in the possession, control or custody of or debts or other monetary obligations owing by a third person shall be attached by writs of garnishment issued by the clerk of a court or by an attorney as provided in ORS 18.600 to 18.850.

D(3) Notice to defendant. After taking property into custody under subsection (2)(a) of this section, the sheriff shall promptly mail or deliver to the defendant, at the last-known address of the defendant, a copy of the writ of attachment, a copy of the claim of lien filed pursuant to section C of this rule, if any, a notice of exemptions form provided by ORS 18.845, and a challenge to garnishment form provided by ORS 18.850. The sheriff may meet the requirements of this subsection by mailing the documents to the last-known address of the defendant as provided by the plaintiff. The sheriff may withhold execution of the writ until the plaintiff provides such address or a statement that the plaintiff has no knowledge of the defendant’s address. The sheriff shall have no duty under this subsection if the plaintiff provides a statement that the plaintiff has no knowledge of the defendant’s address.

D(4) Return of writ; inventory. When the writ of attachment has been fully executed or discharged, the sheriff shall return the same, with the sheriff’s proceedings indorsed thereon, to the clerk of the court where the action was commenced, and the sheriff shall make a full inventory of the property attached and return the same with the writ.

D(5) Indemnity to sheriff. Whenever a writ of attachment is delivered to the sheriff, if the sheriff has actual notice of any third party claim to the personal property to be levied on or is in doubt as to ownership of the property, or of encumbrances thereon, or damage to the property held that may result by reason of its perishable character, such sheriff may require the plaintiff to file with the sheriff a surety bond, indemnifying the sheriff and the sheriff’s bondsmen against any loss or damage by reason of the illegality of any holding or sale on execution, or by reason of damage to any personal property held under attachment. Unless a lesser amount is acceptable to the sheriff, the bond shall be in double the amount of the estimated value of the property to be seized.

E Disposition of attached property after judgment.

E(1) Judgment for plaintiff. If judgment is recovered by the plaintiff against the defendant, and it shall appear that property has been attached in the action, and has not been sold as perishable property or discharged from the attachment, the court shall order the property to be sold to satisfy the plaintiff’s demands, and if execution issue thereon, the sheriff shall apply the property attached by the sheriff or the proceeds thereof, upon the execution, and if any such property or proceeds remain after satisfying such execution, the sheriff shall, upon demand, deliver the same to the defendant; or if the property attached has been released from attachment by reason of the giving of the undertaking by the defendant, as provided by section F of this rule, the court shall upon giving judgment against the defendant also give judgment in like manner and with like effect against the surety in such undertaking.

E(2) Judgment not for plaintiff. If judgment is not recovered by the plaintiff, all the property attached, or the proceeds thereof, or the undertaking therefor, shall be returned to the defendant upon service upon the sheriff of a certified copy of the order discharging the attachment.

F Redelivery of attached property.

F(1) Order and bond. If an attachment deprives the defendant or any other person claiming the property of the possession or use of the property, the defendant or such person may obtain redelivery or possession thereof upon a court order authorizing such redelivery or possession. The moving party shall file a surety bond undertaking, in an amount fixed by the court, to pay the value of the property or the amount of plaintiff’s claim, whichever is less, if the same is not returned to the sheriff upon entry of judgment against the defendant. A motion seeking an order authorizing such redelivery or possession must state the moving party’s claim of the value of the attached property and must be served upon plaintiff as provided in Rule 9 at least five days prior to any hearing on such motion, unless the court orders otherwise. The property shall be released to the defendant upon the filing of the bond.

F(2) Defense of surety. In an action brought upon such undertaking against the principal or the sureties, it shall be a defense that the property for which the undertaking was given did not, at the execution of the writ of attachment, belong to the defendant against whom the writ was issued.

[CCP 12/13/80; §§C,D amended by 1981 c.883 §§38,39; §§A,C amended by 1987 c.586 §§45,46; §D amended by 1987 c.873 §20; amended by 1997 c.439 §9; §A amended by 1997 c.631 §564; §D amended by 2001 c.249 §79; §§A,B,C amended by 2003 c.576 §§224,265,266]

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