(a) Effect of Motion. Any attack by the defendant upon the writ of attachment or the levy shall be by motion and shall not constitute a general appearance. No objection raised by a defendant in a motion is waived by being joined with an objection to the complaint as to whether it states a claim upon which relief can be granted, or with any other objection.
(b) Proof on Motion. Upon such motion, proof may be presented by affidavits, depositions, or oral testimony. The burden of proof shall be on the plaintiff. The court may allow amendments and the submission of additional affidavits or other proof to sustain the writ or levy. All questions of fact and law shall be determined by the court without a jury.
(c) Vacation; Discharge. If the court finds that the writ of attachment should not have issued, it shall order it vacated and the levy discharged. If it finds that the levy is defective, it may order it discharged or corrected.
(d) Continuation of Action. The action shall not abate by reason of the discharge of the levy or vacation of the writ of attachment, and the court may order the issuance of other process or a new writ of attachment as the circumstances require.
Wednesday, August 5, 2009
4:60-10. Time to Defend
(a) Where No Summons Is Served. A defendant who has not been served with summons in the action shall serve and file an answer, or move against the complaint, the writ of attachment or the sheriff's levy thereunder within 35 days after service or publication of the notice of attachment, or within such time as has been fixed by order of the court.
(b) Where Summons Is Served. A defendant who has been served with summons in the action but has not appeared therein or has failed to defend the same shall move against the attachment or the sheriff's levy thereunder within 35 days after service of the notice of the attachment and levy, or if service is made by publication alone, then within 35 days after the publication.
(c) Where Defendant Appears and Defends. A defendant who appears in the action and defends the same may move against the attachment or levy at any time before final judgment as provided by R. 4:60-11.
(b) Where Summons Is Served. A defendant who has been served with summons in the action but has not appeared therein or has failed to defend the same shall move against the attachment or the sheriff's levy thereunder within 35 days after service of the notice of the attachment and levy, or if service is made by publication alone, then within 35 days after the publication.
(c) Where Defendant Appears and Defends. A defendant who appears in the action and defends the same may move against the attachment or levy at any time before final judgment as provided by R. 4:60-11.
4:60-9. Notice to Defendant; Defense
(a) Time for Service of Notice. Within one week after the sheriff's return is filed or within such time as fixed by court order, plaintiff shall serve upon the defendant notice of the attachment together with a copy of the order for attachment, the affidavits upon which the order was based and the complaint, if they have not previously been served upon defendant.
(b) Contents of Notice. The notice shall specify at whose suit, against whose property, and for what amount the attachment was issued; describe the property attached; state when the attachment was returned and the time within which the defendant is required to serve and file an answer or move against the complaint, the writ of attachment or the sheriff's return thereunder; and the name and address of the attorney or party upon whom the answer or motion is required to be served.
(c) Service. Service of the notice upon a defendant who has previously appeared in the action shall be made as provided by R. 1:5-2, upon a defendant who has not previously appeared in accordance with R. 4:4-4 or R. 4:4-5, or upon any defendant, as the court by order directs. If service cannot be made except by publication, a copy of the complaint, order for attachment and affidavits upon which the order was based need not be served, but plaintiff shall furnish defendant or defendant's attorney with a copy thereof within 5 days after written request therefor.
(b) Contents of Notice. The notice shall specify at whose suit, against whose property, and for what amount the attachment was issued; describe the property attached; state when the attachment was returned and the time within which the defendant is required to serve and file an answer or move against the complaint, the writ of attachment or the sheriff's return thereunder; and the name and address of the attorney or party upon whom the answer or motion is required to be served.
(c) Service. Service of the notice upon a defendant who has previously appeared in the action shall be made as provided by R. 1:5-2, upon a defendant who has not previously appeared in accordance with R. 4:4-4 or R. 4:4-5, or upon any defendant, as the court by order directs. If service cannot be made except by publication, a copy of the complaint, order for attachment and affidavits upon which the order was based need not be served, but plaintiff shall furnish defendant or defendant's attorney with a copy thereof within 5 days after written request therefor.
4:60-8. Inventory and Return
The sheriff shall make a true inventory of all real property attached and an appraisement of all personal property attached and shall endorse upon the writ and duplicate thereof each levy made and the date thereof, and shall annex thereto a copy of the inventory and appraisement. The sheriff shall file the same with the court and mail to the plaintiff or plaintiff's attorney within 5 days after the levy a notice of the levy and a copy of the inventory and appraisement.
4:60-7. Levy
The sheriff shall make the levy within 30 days from the date of the writ, in the following manner:
(a) In the case of tangible personal property in the possession of a bailee for which a negotiable document of title is outstanding, by complying with the provisions of N.J.S. 12A:7-602, and serving a certified copy of the writ upon the bailee.
(b) In the case of tangible personal property other than personal property referred to in paragraph (a) of this rule, by taking the same into custody or by serving a certified copy of the writ upon the person holding the same.
(c) In the case of choses in action evidenced by negotiable commercial paper, by taking the said paper into custody, or by serving a certified copy of the writ upon the person owing the same and also serving upon the person in possession of said paper an order of the court enjoining its negotiation.
(d) In the case of negotiable investment securities, by complying with the provisions of N.J.S. 12A:8-317.
(e) In the case of choses in action not referred to in paragraphs (c) or (d) of this rule, by serving a certified copy of the writ upon the person owing the same.
(f) In the case of legacies or distributive shares in an estate of a decedent or a beneficial interest in a trust, by serving a certified copy of the writ upon the fiduciary.
(g) In the case of real property, by endorsing upon the writ a description of the property, and by serving a certified copy of the writ upon any person in possession of the same, provided, however, that failure to complete a levy as herein provided shall not defeat the lien of the writ as provided in N.J.S. 2A:26-9.
(h) The copy of the writ to be served pursuant to the preceding paragraphs of this rule,shall be certified to be a true copy by the Clerk of the Superior Court, a deputy clerk of the Superior Court or by an attorney.
(a) In the case of tangible personal property in the possession of a bailee for which a negotiable document of title is outstanding, by complying with the provisions of N.J.S. 12A:7-602, and serving a certified copy of the writ upon the bailee.
(b) In the case of tangible personal property other than personal property referred to in paragraph (a) of this rule, by taking the same into custody or by serving a certified copy of the writ upon the person holding the same.
(c) In the case of choses in action evidenced by negotiable commercial paper, by taking the said paper into custody, or by serving a certified copy of the writ upon the person owing the same and also serving upon the person in possession of said paper an order of the court enjoining its negotiation.
(d) In the case of negotiable investment securities, by complying with the provisions of N.J.S. 12A:8-317.
(e) In the case of choses in action not referred to in paragraphs (c) or (d) of this rule, by serving a certified copy of the writ upon the person owing the same.
(f) In the case of legacies or distributive shares in an estate of a decedent or a beneficial interest in a trust, by serving a certified copy of the writ upon the fiduciary.
(g) In the case of real property, by endorsing upon the writ a description of the property, and by serving a certified copy of the writ upon any person in possession of the same, provided, however, that failure to complete a levy as herein provided shall not defeat the lien of the writ as provided in N.J.S. 2A:26-9.
(h) The copy of the writ to be served pursuant to the preceding paragraphs of this rule,shall be certified to be a true copy by the Clerk of the Superior Court, a deputy clerk of the Superior Court or by an attorney.
4:60-6. Issuance of Writ; Further Writs
(a) Issuance by Clerk of the Superior Court. Upon the filing with the court of the complaint, affidavits, order, and bond, if any is required, either the court or the clerk thereof shall issue a writ, in duplicate, which shall be addressed to the sheriff of the county in which the property to be attached is located or found, or in Superior Court actions where the property to be attached is located in more than one county, a writ shall issue to the sheriff of each such county.
(b) Issuance by Deputy Clerk. In Superior Court actions, the court in its discretion may mark the papers filed and order the issuance of the writ forthwith by the deputy clerk of theSuperior Court of a county in which any property to be attached is located, who shall issue the writ and forward a copy thereof to the office of the Superior Court Clerk in Trenton on the same day. The Clerk of the Superior Court shall enter the writ in the Civil Judgment and Order Docket.
(c) Further Writs. Further writs may be issued prior to judgment on further affidavit and order.
(b) Issuance by Deputy Clerk. In Superior Court actions, the court in its discretion may mark the papers filed and order the issuance of the writ forthwith by the deputy clerk of theSuperior Court of a county in which any property to be attached is located, who shall issue the writ and forward a copy thereof to the office of the Superior Court Clerk in Trenton on the same day. The Clerk of the Superior Court shall enter the writ in the Civil Judgment and Order Docket.
(c) Further Writs. Further writs may be issued prior to judgment on further affidavit and order.
Wednesday, July 29, 2009
4:60-5. Order Directing Issuance of Writ
(a) Issuance of Writ on Notice. A writ of attachment shall issue only in cases where the defendant is subject to the exercise of jurisdiction by the State consistent with due process of law. The writ shall issue upon court order on the plaintiff's motion. Except as otherwise provided by paragraph (b) of this rule, the motion shall be heard on no less than three days' notice to the defendant, who shall file and serve any opposing affidavits or cross-motions at least one day prior to the hearing. The motion shall be granted only upon the court's finding, based on the moving papers, any opposing affidavits which may have been filed, and any testimony taken pursuant to R. 1:6-6, that (1) there is a probability that final judgment will be rendered in favor of the plaintiff; (2) there are statutory grounds for issuance of the writ; and (3) there is real or personal property of the defendant at a specific location within this State which is subject to attachment.
(b) Issuance of Writ Ex Parte. An order for issuance of writ of attachment without notice to the defendant may be entered by the court only if the defendant is about to abscond or if the court finds from specific facts shown by affidavit or verified complaint that the giving of such notice is likely to defeat the execution of the writ.
(c) Contents of Order. Upon satisfactory proof of plaintiff's right to the writ, the court by order shall direct the issuance of the writ fixing the amount or value of property to be attached, and providing the manner in which notice of the attachment shall be given to the defendant, and such terms and conditions as the court deems appropriate.
(d) Bond by Plaintiff. Before or after issuance of the writ, the court may, in its discretion, order the plaintiff to post a bond with sufficient sureties and in an amount sufficient to indemnify defendant for all damages resulting from the attachment and for taxed costs, if the writ is vacated, or if the action is dismissed, or if judgment therein is given for defendant.
(b) Issuance of Writ Ex Parte. An order for issuance of writ of attachment without notice to the defendant may be entered by the court only if the defendant is about to abscond or if the court finds from specific facts shown by affidavit or verified complaint that the giving of such notice is likely to defeat the execution of the writ.
(c) Contents of Order. Upon satisfactory proof of plaintiff's right to the writ, the court by order shall direct the issuance of the writ fixing the amount or value of property to be attached, and providing the manner in which notice of the attachment shall be given to the defendant, and such terms and conditions as the court deems appropriate.
(d) Bond by Plaintiff. Before or after issuance of the writ, the court may, in its discretion, order the plaintiff to post a bond with sufficient sureties and in an amount sufficient to indemnify defendant for all damages resulting from the attachment and for taxed costs, if the writ is vacated, or if the action is dismissed, or if judgment therein is given for defendant.
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