The Vermont Statutes Online

Title 12: Court Procedure

Chapter 123: Attachment of Property

• Subchapter 001: ATTACHMENT GENERALLY

• § 3221. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• Subchapter 002: ATTACHMENT OF PERSONAL PROPERTY

• § 3251. Attachment or levy of execution by filing

  When personal property is taken upon a writ of attachment or execution, the officer serving such process may lodge a copy of the same, with his or her return, in the office or offices proper for the filing of a financing statement to perfect a security interest in such property under 9A V.S.A. § 9-401. Such lodgment shall hold the property against all subsequent sales, attachments, or executions as if it had been actually removed and taken into the possession of the officer, and different officers thereafter may serve in like manner other writs of attachment or execution so as to create a valid subordinate lien upon the same property. Where such process is required by this section to be lodged in any office other than that of the town clerk in the town where the property is found, it shall be sufficient if the officer sends a copy of the process by registered or certified mail, return receipt requested, to the appropriate office. (Amended 1971, No. 185 (Adj. Sess.), § 89, eff. March 29, 1972.)

• § 3252. Recording by clerk

  When a copy of a writ of attachment upon which personal property is attached is lodged in the office of a town clerk, he or she shall enter in a book to be kept by him or her, in alphabetical order, the names of the parties, the date of the writ, the time when and the court to which the same is returnable, and the amount demanded.

• §§ 3253, 3254. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 3255. Taking possession with or without filing

  (a) An officer, having attached personal property by lodging a copy in the appropriate office as provided in section 3251 of this title shall thereafter remove the property so attached or take it into his or her possession whenever the care, safety, or preservation of the property so requires, or he or she may accept a receipt for the same. In either case he or she shall withdraw the copy from the office where it was lodged, except that in a mixed attachment of real and personal property he or she shall make and cause to be recorded a certificate stating either that the personal property attached has been taken into his or her possession or receipted. Where the copy was originally lodged by mail, as provided in section 3251 of this title, such withdrawal or recording may also be accomplished by mail.

  (b) The officer taking personal property as provided in this chapter may remove the same and take it into his or her possession, in which case he or she need not leave a copy of the attachment or execution in any office of record. (Amended 1971, No. 185 (Adj. Sess.), § 90, eff. March 29, 1972.)

• § 3256. Custody of attached property; penalties

  When an officer has attached personal property and taken it into his or her custody and chained, locked, or otherwise secured the same, a person, except another officer duly authorized, shall not interfere with the first named officer’s custody of such property. A person who violates the provisions of this section shall be fined not more than $100.00 or be imprisoned not more than 60 days, or both.

• § 3257. Buildings erected by mortgagor or lessee

  An officer levying attachment of buildings or structures erected by a mortgagor or lessee, in addition to the copy lodged in the town clerk’s office, shall serve upon the mortgagee or lessor a like true and attested copy of the process, with a description of the property, and the return of the officer thereon, as is provided for the attachment of personal property held by a person as lessee or bailee. Upon sale on execution, the vendee shall succeed to the rights of the original lessee or mortgagor to the property.

• Subchapter 003: ATTACHMENT OF REAL PROPERTY

• § 3291. Service of copies of attachment

  When real estate is attached, in addition to serving the party whose estate is attached, the officer shall leave a true and attested copy of the attachment, with a description of the estate so attached, in the office where by law a deed of that estate is required to be recorded. (Amended 1971, No. 185 (Adj. Sess.), § 91, eff. March 29, 1972.)

• § 3292. Recording by town or Superior clerk

  When a copy of a writ of attachment, on which real estate is attached, is lodged in the office of a town or Superior clerk, such clerk shall enter in a book to be kept for that purpose the names of the parties, the date of the writ, the time when and the court to which the same is returnable, the nature of the action, the sum demanded, and the officer’s return thereon. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

• § 3293. Discharge of attachment lien

  (a) When an attachment or sequestration of real estate is made in an action at law, such real estate shall be discharged from such attachment lien and the party in whose favor the attachment or sequestration is made, his or her legal representative or attorney of record in the action shall discharge such attachment upon the record of attachment in the town clerk’s office, under any one of the following conditions:

  (1) when the action is discontinued or the demand on which it is founded is satisfied;

  (2) when the original writ or process is not returned to the court issuing the same within the time designated by such writ or process;

  (3) when final judgment is entered in such cause and the docket entries or court records of proceedings in such cause do not show that execution was issued therein within the time the attached property is held to respond to the judgment rendered thereon;

  (4) when execution has issued in such cause and returned with officer’s return thereon that the execution is satisfied; or

  (5) if such execution is not returned to the court issuing the same within two years from the date of issue as determined by the docket entries or court records, provided that service is not stayed by order or decree of any court or by operation of law.

  (b) If such attachment or sequestration is not discharged of record as above provided, any person having any title in or lien on such property may obtain from the court to which the original writ or process was made returnable, a certificate stating therein the fulfillment of any one of the conditions set forth above, and may file such certificate in the town or city clerk’s office in the town or city where such attachment was made. Such clerk shall thereupon discharge such attachment as follows:

  “Discharged by the town (city) clerk per court’s certificate on file.”

  (c) [Repealed.]

  (d) A clerk discharging an attachment as herein authorized shall receive a fee of $4.00. (Amended 1971, No. 84, § 7, eff. July 1, 1971; 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974; 1979, No. 161 (Adj. Sess.), § 12; 1993, No. 170 (Adj. Sess.), § 10.)

• § 3294. Liability for refusal to discharge attachment lien

  When such party or his or her representative refuses for 10 days after being thereto requested to discharge the lien so created, he or she shall be liable to the party injured for the damages occasioned thereby, to be recovered in an action of tort.

• § 3295. Attachment of real estate and personal property

  A writ of attachment of real estate or personal property shall be filled out as provided by rule adopted by the Supreme Court and issued to the plaintiff’s attorney by the clerk of the court in the county where the action is pending or the property is located. Such writ shall issue only upon the order of a Superior judge approving attachment in the same manner as is provided by the Vermont Rules of Civil Procedure for attachment of personal property that is to be removed or taken into possession. (Added 1977, No. 254 (Adj. Sess.), § 1, eff. April 19, 1978.)

• Subchapter 004: SUBSEQUENT ATTACHING CREDITORS

• § 3331. Subsequent attaching creditors of real or personal property permitted to defend

  When a subsequent attaching creditor of real or personal property wishes to contest the validity of the debt or claim on which a previous attachment is founded, the court before whom the process is returnable, on which the previous attachment was made, in its discretion, may permit such subsequent attaching creditor to appear by himself or herself or counsel and defend such action. The words “attaching creditor” shall include creditors claiming to hold by trustee process personal property or funds in the hands of any person against such previous attachments.

• § 3332. Admissions of defendant

  When a creditor has so appeared, an admission or declaration in writing or otherwise, afterwards made by the debtor in the cause, of the validity of the claim on which such previous attachment is founded, shall not be given in evidence against such creditor nor shall he or she be affected thereby.

• § 3333. Costs when plaintiff recovers in full

  When the plaintiff recovers final judgment for his or her whole debt or claim, he or she may have execution against such creditor for nominal damages and the costs that accrue in the cause after he or she so enters.

• § 3334. Costs when plaintiff recovers in part

  When such creditor defeats on trial a part of the plaintiff’s claim on the ground that it is fraudulent as against creditors, he or she shall have judgment and execution against the plaintiff for such costs accrued after entry by such creditor as the court may tax in its discretion.

• Subchapter 005: PERSONAL PROPERTY SUBJECT TO MORTGAGE, PLEDGE, OR LIEN; ATTACHMENT, LEVY OF EXECUTION, AND SALE

• § 3351. Attachment, taking in execution, and sale

  Personal property not exempt from attachment, subject to a mortgage, pledge, or lien, may be attached, taken in execution, and sold as the property of the mortgagor, pledgor, or general owner, in the same manner as other personal property, except as otherwise provided in this subchapter. (Amended 2018, No. 8 (Sp. Sess.), § 6, eff. June 28, 2018.)

• § 3352. Statement of secured debt

  The officer making such attachment or taking such property on execution may make a written demand of the mortgagee, pledgee, or the holder of such lien, for an account in writing, under oath, of the amount due upon the debt secured by such mortgage, pledge, or lien, and may retain such property in his or her custody until the same is given without tender or payment. Upon receiving such demand, the account shall be rendered within 15 days by a resident of the State and within 30 days by a nonresident. If the account is not rendered within the time aforesaid or if a false account is rendered, such property may be holden and sold, discharged from such mortgage, pledge, or lien.

• § 3353. Payment of debt if due

  When such debt is due at the time of rendering the account, the creditor so attaching or causing such property to be taken on execution may pay or tender, within 10 days after such account is rendered, the amount so rendered to the mortgagee, pledgee, or holder of such lien, and retain and sell such property free and clear of such mortgage, pledge, or lien.

• § 3354. Payment of debt becoming due before sale

  When such debt is not due at the time of rendering the account, but becomes due before the time fixed by the officer making such attachment or levy of execution for the sale of the property, within 10 days after the debt becomes due and before the sale, such creditor may pay or tender the amount thereof to such mortgagee, pledgee, or holder of such lien, and retain and sell such property as is provided in section 3353 of this title.

• § 3355. Payment of debt not due

  When such debt is not due at the time fixed by the officer for sale of the property, the creditor may offer to pay the debt to the mortgagee, pledgee, or holder of the lien. If such payment is accepted, the same proceedings may be had as provided in section 3353 of this title.

• § 3356. Subrogation of creditor by payment

  When such creditor pays or tenders such debt to the mortgagee, pledgee, or holder of such lien, as provided in sections 3353-3355 of this title, he or she shall be subrogated to all the rights of such mortgagee, pledgee, or holder, and may cause the same to be sold in the same manner that unencumbered personal property may be sold on mesne or final process; and the proceeds of such sale shall be applied first, in payment of the sum paid by such creditor to such mortgagee, pledgee, or holder and second, to satisfy the execution.

• § 3357. Sale of property subject to mortgage, pledge, or lien

  When the mortgagee, pledgee, or holder of a lien duly renders such account, whether or not the debt is due, the attaching creditor may cause the property to be sold subject to the mortgage, pledge, or lien, without first paying or tendering the amount due on the debt secured thereby.

• § 3358. Subrogation of purchaser

  When a mortgagor, pledgor, or conditional vendee of property sold on execution under the provisions of this subchapter fails or refuses to discharge such lien after it becomes due and payable, and within 10 days after written notice so to do is served upon him or her by the purchaser of the whole or part thereof, the person so purchasing may tender and pay to the holder of such mortgage, pledge, or lien, or the conditional vendor, the amount due such creditor upon the whole of such property. Upon such tender or payment, such purchaser shall be subrogated to all the rights of such original mortgagee, pledgee, or conditional vendor, and may hold the same as security for the amount so paid in discharge of such original claim, together with the sum paid by him or her on the execution sale, with interest upon such sums. He or she shall have the same benefit of foreclosure, sale, and disposition of such property that the original mortgagee, pledgee, or conditional vendor would have had under his or her claim.

• § 3359. Property subject to conditional sales contract—Attachment and execution

  If property, in pursuance of the terms of a conditional sales contract, has passed into the possession of the vendee and the purchase money or part thereof remains unpaid, a creditor of the vendee may attach or levy his or her execution upon the property, and, upon payment or tender of such unpaid purchase money to the vendor, his or her agent or attorney, within 10 days after notice of the amount thereof remaining unpaid, may hold the property discharged from the claim of such vendor.

• § 3360. Proceeds of sale

  The officer making such attachment or levy shall hold and dispose of such property like other personal property attached or levied upon, and from the proceeds of the sale thereof pay to the creditor the amount by him or her paid or tendered to the vendor and apply the residue upon the execution.

• § 3361. Defense in action by vendor

  If the vendor refuses to receive the amounts so tendered him or her and brings an action on account of the attachment or levy, the tender shall constitute a defense. On proof thereof and payment of the money tendered into court, the defendant may recover his or her costs, unless it appears that the amount so tendered, as the residue of the purchase money, was less than the sum due the vendor. (Amended 1971, No. 185 (Adj. Sess.), § 92, eff. March 29, 1972.)

• § 3362. Mortgagee taking possession; foreclosure of mortgage, pledge, or lien

  Sections 3351-3361 of this title shall not be construed so as to prevent or delay a mortgagee or a conditional vendor from taking possession of the secured property at any time for its necessary care and preservation, nor to prevent or delay the due foreclosure of a mortgage, pledge, or lien under the provisions of 9A V.S.A. Article 9. (Amended 1959, No. 262, § 27, eff. June 11, 1959; 1971, No. 185 (Adj. Sess.), § 93, eff. March 29, 1972.)

• § 3363. Property in hands of bailee—Taking of reversionary interest of lessor, bailor, pledgor, or other owner

  The reversionary title in personal property may be attached or levied upon as the property of the lessor, bailor, pledgor, or other person owning the same, subject to the contract rights of the party holding possession thereof.

• § 3364. Service of process on person holding property

  A valid lien on such property shall be created by delivering to the person so holding it a true and attested copy of the process upon which it is attached or levied, with the return of the officer thereon describing it, which shall have the same effect as though the property were taken into the possession of such officer.

• § 3365. Sale of reversionary interest

  The reversionary interest in the property may be sold at public sale, as personal property is required to be sold upon legal process, subject to the contract rights under which it is held.

• Subchapter 006: SALE OF PERSONAL PROPERTY ON ATTACHMENT

• § 3401. Sale by consent of parties

  When goods or chattels are attached on mesne process in one or more actions and the debtor and attaching creditors consent in writing to a sale thereof, the attaching officer shall sell the same in the manner prescribed by law for selling like property on execution. The proceeds of the sale, after deducting the necessary charges thereof, shall be paid into court and held to respond to judgments in such actions.

• § 3402. Attachment after advertisement

  After the property is advertised for sale, a creditor shall not have a right to prevent such sale by attachment of the same. The property may be charged by attachment or execution put into the hands of the officer holding it, as if the same were not advertised for sale, and the proceeds thereof shall be held subject to the attachments and executions in the officer’s hands, at the time of the sale, against the owner of the property.

• § 3403. Perishable property—Notice of sale; appraisers

  (a) When an attachment is made of living animals or of perishable goods or chattels which are liable to waste or liable to deteriorate appreciably in value by keeping or which cannot be kept without great or disproportionate expense, and the parties do not consent to the sale thereof, upon written application of either of the parties interested therein, made to the attaching officer, the property so attached shall be examined, appraised and sold, or otherwise disposed of and notice thereof given by the officer to the other parties in such manner as the Supreme Court shall by rule provide for service of summons.

  (b) Such officer shall prepare a schedule of the property and appoint three disinterested persons acquainted with its value as appraisers to be sworn by him or her. If such appraisers are satisfied that the defendant in the action has been informed of the attachment of the property, they shall appraise the same as provided by law. (Amended 1971, No. 185 (Adj. Sess.), § 94, eff. March 29, 1972.)

• § 3404. Duties of appraisers; sale

  The appraisers shall examine the attached property and, if the same or part thereof is liable to perish or waste or to be greatly reduced in value by keeping or cannot be kept without great and disproportionate expense, they shall appraise the same at its value in money. Such property shall thereupon be sold by the officer and the proceeds held and disposed of as hereinbefore provided in case of a sale by consent of parties, unless the property is taken by the defendant as hereinafter provided.

• § 3405. Return of sale

  When an attaching officer sells property pursuant to any of the preceding sections, within 30 days, he or she shall make a return of his or her sale and any action taken on the writ upon which the attachment was made and return the writ with his or her proceedings to the clerk who signed it or to the clerk of the court in which the action is pending. When the defendant confesses judgment to the plaintiff before he or she makes the return, the officer shall make return to the magistrate before whom the judgment is confessed. (Amended 1971, No. 185 (Adj. Sess.), § 95, eff. March 29, 1972.)

• § 3406. Delivery of property to defendant on giving security

  The property appraised and ordered sold under the provisions of this subchapter shall be delivered to the defendant, if he or she requires it, upon his or her depositing with the attaching officer the appraised value thereof in money, or giving to him or her satisfactory security for payment of such value, or to satisfy such judgments as are recovered in the actions in which the property is attached, if demanded within the time during which it would have been held by the respective attachments, and to indemnify the officer for such costs and damages as he or she may sustain if such payment is not made within the time aforesaid.

• § 3407. Officer to account for appraised value

  Such officer shall be accountable to the attaching creditor for the appraised value only of the property so delivered to the debtor.

• § 3408. Sale after return of process

  After the process has been entered in court and before final judgment, personal property attached on mesne process may be sold or disposed of upon the same requests and in the same manner as provided for the sale or disposal of property so attached, before the process has been entered in court.

• § 3409. Officer’s return

  When an officer sells property as provided in section 3408 of this title, he or she shall forthwith make return of his or her doings and sale to the clerk of the court or to the magistrate before whom the cause is pending. Such return shall be appended to and made part of the officer’s return on the original process.

• § 3410. Deposit or investment of proceeds

  When property is sold on mesne process returnable to the Superior Court under this subchapter, upon application of either party, the money realized from the sales shall be paid into court, and the clerk thereof shall invest or deposit such money during the pendency of the cause, as the court directs. When the officer has paid the money into court, he or she shall not be responsible to either party therefor. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)