Prejudgment Attachment in Kentucky

PreJudgment Attachment in Kentucky

By: Jamie L. Harris, Esq.

In Kentucky, in order to obtain a prejudgment attachment, the plaintiff must comply with the requirements of KRS 425.301 et seq.to justify attachment. Under KRS § 425.301(3), 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. 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. Id. Additionally, KRS 425.309(1) provides as follows: “An order of attachment shall not be issued [before final judgment] until a bond has been executed by one (1) or more sufficient sureties of the plaintiff in an amount not less than double the amount of the plaintiffs claim.” Thus, the plaintiff must secure a bond of at least double the amount of the total claim against the defendant.

Funds  that are the subject of a litigation dispute may also be ordered to be deposited into court based on Kentucky Rule of Civil Procedure CR 67.02 which provides:  “When it is admitted by the pleading or examination of a party that he has in his possession or control any money or other thing capable of delivery which being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court or delivered to such other party, with or without security, subject to further direction.” CR 67 provides the procedural framework that enables parties in possession of money or other tangible property which is the subject of a dispute to: 1) voluntarily and with leave of the court deposit the property with the court, CR 67.01; or 2) divest themselves of such property which they admittedly hold “as trustee for another party, or which belongs or is due to another party[.]” CR 67.02. See also PremierTox 2.0 v. Miniard, 407 S.W.3d 542, 547 (Ky. 2013).

Comments

Leave a Reply

Your email address will not be published. Required fields are marked *