(a) Orders to Preserve Property. The court shall fix the compensation and other costs and expenses of safekeeping the personal property attached, and shall provide for payment thereof by the parties or out of the proceeds of the attached property. The court may order sale of personal property before judgment, and may order the sheriff to take possession of attached real estate, to collect the rents, issues and profits thereof, and to manage the same. The court may order the institution and prosecution of appropriate actions and proceedings by the sheriff to obtain possession of any attached property in the hands of a third person, including the collection of attached choses in action, trust income or corpus, and legacies or distributive shares in the estate of a decedent, and may make such further orders as are necessary to protect and preserve the attached property pending the determination of the proceedings.
(b) Appointment of Receiver. The court may appoint a receiver of any attached real or personal property and may direct the sheriff to deliver the same to such receiver and may empower the receiver to perform any of the aforesaid duties and any other acts necessary to preserve the property, to collect attached assets, and to apply them as the court directs.
Wednesday, August 5, 2009
4:60-16. Consolidation of Actions
Whenever 2 or more plaintiffs in separate actions shall obtain writs of attachment against the same defendant and levy upon the same property, the several actions may be consolidated for the purpose of determining the disposition of the attached property. The plaintiff whose writ of attachment first became a lien on the property shall be deemed to be the plaintiff in the consolidated action and all other plaintiffs shall be in the position of applying claimants. If such actions are pending in the same court and are triable in the same county or vicinage, the order ofconsolidation shall be made by any judge sitting in the court. If any of such actions are pending in different courts or are triable in different counties or vicinages, the order of consolidation shall be made by the Assignment Judge of the county where the first writ of attachment was issued, and the procedure shall be governed by R. 4:38-1 insofar as applicable.
4:60-15. Applying Claimants
(a) Order of Admission. At any time before the defendant shall have entered an appearance of record in the action, any person having a liquidated or unliquidated claim againstthe defendant, whether the claim is due or not, may apply to the court to be admitted as an applying claimant under the attachment, on verified complaint entitled in the action, and on notice to the plaintiff and to all applying claimants previously admitted, and the court shall make an order admitting such claimant upon prima facie proof of the cause of action alleged.
(b) Notice of Order. Within 10 days after the date of the order admitting the claimant as a party to the action, or within such other period of time as the court may designate in the order, the applying claimant shall serve notice thereof and, if possible, a copy of the verified complaint and order of admission as a party to the action upon the defendant in the same manner as hereinabove provided for the service by the plaintiff of notice of the attachment, and the defendant shall have the same time after such service within which to answer or move against the complaint as is allowed for answering the plaintiff's complaint.
(c) Proceedings After Admission. Proceedings on the claims of applying claimants shall not suspend or affect the course of the plaintiff's action against the defendant. Each applying claimant may defend against the claim of the plaintiff and of any other applying claimant by serving and filing notice of contest of such claim at least 10 days prior to the time fixed for the trial or proof thereof. Pending final judgment as to all claims, any surplus funds available to be applied to the judgments of applying claimants may be ordered retained by the sheriff or other officer holding the same subject to court order, or may be ordered paid into court to be paid out on court order.
(d) Special or General Judgment. If the defendant does not enter an appearance in the action, any judgment in favor of an applying claimant shall be special against the attached property only. If the defendant enters an appearance in the action, the claim of each applying claimant previously admitted to the action shall proceed in the same manner as a separate action and any judgment obtained against the defendant shall be a general judgment.
(e) Participation in Proceeds. Applying claimants shall participate, in proportion to but not in excess of their respective judgments against the defendant and costs, in the surplus, if any, of the proceeds of the attached property after the payment of costs and charges directed by court order to be paid therefrom and after payment of the plaintiff's judgment and costs, if any.
(b) Notice of Order. Within 10 days after the date of the order admitting the claimant as a party to the action, or within such other period of time as the court may designate in the order, the applying claimant shall serve notice thereof and, if possible, a copy of the verified complaint and order of admission as a party to the action upon the defendant in the same manner as hereinabove provided for the service by the plaintiff of notice of the attachment, and the defendant shall have the same time after such service within which to answer or move against the complaint as is allowed for answering the plaintiff's complaint.
(c) Proceedings After Admission. Proceedings on the claims of applying claimants shall not suspend or affect the course of the plaintiff's action against the defendant. Each applying claimant may defend against the claim of the plaintiff and of any other applying claimant by serving and filing notice of contest of such claim at least 10 days prior to the time fixed for the trial or proof thereof. Pending final judgment as to all claims, any surplus funds available to be applied to the judgments of applying claimants may be ordered retained by the sheriff or other officer holding the same subject to court order, or may be ordered paid into court to be paid out on court order.
(d) Special or General Judgment. If the defendant does not enter an appearance in the action, any judgment in favor of an applying claimant shall be special against the attached property only. If the defendant enters an appearance in the action, the claim of each applying claimant previously admitted to the action shall proceed in the same manner as a separate action and any judgment obtained against the defendant shall be a general judgment.
(e) Participation in Proceeds. Applying claimants shall participate, in proportion to but not in excess of their respective judgments against the defendant and costs, in the surplus, if any, of the proceeds of the attached property after the payment of costs and charges directed by court order to be paid therefrom and after payment of the plaintiff's judgment and costs, if any.
4:60-14. Claim of Property
Any person claiming any of the property attached may proceed in the action on order to show cause pursuant to R. 4:67. The right to trial by jury or by the court without a jury shall be governed by R. 4:35.
4:60-13. Discharge From Attachment
The defendant or any person who had possession or control of the attached property at the time levy was made thereon under the writ may, at any time during the course of the action, secure the discharge of the property, in whole or in part, from the lien of the attachment and obtain the return thereof to defendant, by filing with the clerk a bond in such amount and form and with such sureties as the court by order directs and approves, after notice to the plaintiff and any applying claimants. The bond shall be conditioned to pay any judgments obtained by plaintiff and by any applying claimants, and costs, to an amount not exceeding the value of the attached property to be discharged. The filing of such bond shall not constitute a general appearance in the action.
4:60-12. Appearance; Judgment
(a) Effect of Appearance. At any time before final judgment defendant may enter an appearance of record in the action, and thereafter no applying claimant may intervene. Notwithstanding the appearance, the lien of the attachment, unless discharged, shall continue in favor of the plaintiff and applying claimants theretofore admitted; and proceedings may be had with respect to the attached property.
(b) Special or General Judgment. If the defendant has not been legally served with summons in the action and does not enter an appearance therein, any judgment in favor of the plaintiff shall be special against the attached property only. If the defendant has been legally served with summons in the action or if the defendant has entered an appearance therein, any judgment in favor of the plaintiff shall be general.
(b) Special or General Judgment. If the defendant has not been legally served with summons in the action and does not enter an appearance therein, any judgment in favor of the plaintiff shall be special against the attached property only. If the defendant has been legally served with summons in the action or if the defendant has entered an appearance therein, any judgment in favor of the plaintiff shall be general.
4:60-11. Motion to Vacate Writ or Levy
(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.
(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.
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