"Under the rules, a hearing is not required to be held prior to ruling on a motion for approval of attachment"
How later courts described this case
- "Under the rules, a hearing is not required to be held prior to ruling on a motion for approval of attachment"
Written by the judges who cited it.
The opinion
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STATE OF MAINE DISTRICT COURT
CUMBERLAND, ss. PORTLAND
Docket No. CV-22-23
ST. ANDRE HEALTH CARE )
FACILITY )
Plaintiff )
v. ) ORDER ON PLAINTIFF'S EX-PARTE MOTION
) FOR ATTACHfv1.ENT AND ATTACHMENT
) ON TRUSTEE PROCESS
CHARLES MORRILL ) REC'D GUMB CLERKS OF
)
Defendant )
Plaintiff, a healthcare facility specializing in intermediate and long-term care, seeks to
collect sums arising out of Defendant's stay at the facility for care and room and board not covered
by Medicare, MaineCare or any other insurance. To that end, Plaintiffs filed a Complaint on
February 1, 2022 seeking damages comprised of $21,000 for the duration of Defendant's unpaid
stay.
Pending before the court is Plaintiffs' Ex-parte Motion for Pre-Judgment Attachment and
Attachment on Trustee Process filed February 1, 2022. Plaintiff seeks attachment in the amount of
$21,000 pursuant to M.R. Civ. P. 4A and 4B.
The governing standard is clear: A court may grant a motion for attachment upon a
finding that "it is more likely than not that the plaintiff will recover judgment, including interest
and costs, in an aggregate sum equal to or greater than the amount of the attachment and any
liability insurance, bond, or other security .... " M.R. Civ. P. 4A(c); Portland Museum ofArt v.
Germain, 2019 ME 80, ,i 5 ("a party seeking attachment bears the burden of proving by a
preponderance of the evidence that it is likely to recovery a judgment in an amount equal to or
greater .than the amount of the attachment"). A ruling on a motion for approval of attachment
may be made without a hearing. See, e.g., Atlantic Heating Co. v. Lavin, 572 A.2d 478, 479 (Me.
1990) ("Under the rules, a hearing is not required to be held prior to ruling on a motion for
approval of attachment"); M.R. Civ. P. 4A(c).
Ex parte relief is warranted where there has been a showing of a "clear danger that the
defendant, if notified in advance of attachment of the property, will remove it from the state or
will conceal it or will otherwise make it unavailable to satisfy a judgment ..."M.R. Civ. P.
4B(i). In this instance, based on the affidavits and exhibits presented, Defendant has expressly
refused to pay his obligation to Plaintiff, endeavored to conceal the true extent of his assets, and
has plainly averred that he plans to expend his assets to renovate his son's home and not to pay
his overdue commitments to Plaintiff.
Having reviewed the Affidavits and exhibits filed in support of the Motion for Attachment,
the court finds that it is more likely than not that Plaintiff will recover judgment against Defendant
in an amount equal to or greater than $21,000. 1 Accordingly, it is hereby ORDERED that
Plaintiffs Motion for Pre-Judgment Attachment and Attachment on Trustee Process is hereby
GRANTED, subject to the exemptions set forth in 14 M.R.S. § 4422.
The clerk shall incorporate this Order on the docket by reference pursuant to M.R. Civ. P.
79(a).
DATED:~
on. Maria Woodman
Maine District Court Judge
Plaintiff-Robert Kline, Esq. Entered on the Docket:. 03U1/ 2:z,.
Defendant-not appeared as ex parte motion
1 Exhibit A to the Affidavit of Donna Roy establishes that the sum of $19,348.46 is due as of
December 31, 2021. The attorney affidavit outlines prejudgment interest and fees should Plaintiff
prevail on the breach of contract claim. The court awards the Plaintiff the right to attach based on
its request of $21,000, without prejudice to Plaintiffs' right to claim damages of a greater amount
at trial.