United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on the plaintiff's motion for
prejudgment attachment. (Doc. 4). The plaintiff invokes
Alabama Rule of Civil Procedure 64(b), by way of Federal Rule
of Civil Procedure 64(a).
defendants are Eddins Corporation (“Eddins”),
Sheila Eddins (“Sheila”), and Billy Eddins
(“Billy”). The amended complaint, (Doc. 8),
asserts that Eddins (an insurance agency) received from the
plaintiff (an insurance premium finance lender) almost $2
million in 2017 and that it now appears that in many cases
there was in fact no underlying insured and/or insurance
carrier to which Eddins forwarded the funds received from the
plaintiff. The amended complaint further asserts that
Eddins' bank accounts contain only about $25, 000. The
amended complaint additionally asserts, on information and
belief, that Sheila (the president of Eddins) absconded with
these funds, transferring them from Eddins' account to
her personal accounts. The amended complaint further asserts
that Sheila “may have” transferred some of the
disputed funds to accounts owned by Billy.
plaintiff's motion seeks to attach 21 listed bank
accounts. The plaintiff states in its motion that
“[t]his account information comes from various accounts
that Defendants submitted as belonging to insureds. Upon
further investigation, [the plaintiff] discovered that these
accounts most likely belong to defendants.” (Doc. 4 at
5). For this proposition, the plaintiff relies on the
declaration of its executive vice president. (Id.).
The declarant states as follows:
Based on its investigation into accounts where the Agency
made payments to [the plaintiff] purportedly on behalf of an
insured, [the plaintiff] was able to identify numerous
accounts that it believes are owned by Sheila Eddins, Billy
Eddins, or the Agency. [The plaintiff] believes that some of
its funds that Ms. Eddins, Mr. Billy Eddins, and/or the
Agency absconded with may be contained in these accounts.
(Doc. 4-1 at 3).
trigger the remedy of pre-judgment attachment, Rule 64(b)
requires the filing of an affidavit containing certain
information, including “[a] statement that the
plaintiff is the owner of the claimed property or is entitled
to possession of it ….” Ala. R. Civ. P.
64(b)(1)(B). The declaration quoted above contains no such
statement. Instead, the declarant asserts that, through a
process the contours of which are unexplained, the plaintiff
identified 21 accounts where it “believes” that
some of its funds “may be” contained. These
hedging words would appear to fall far short of the
definitive “is” that Rule 64(b)(1)(B) requires.
Moreover, “[t]he affidavit … must be based on
personal knowledge except where information and belief is
permitted by ARCP 64(b)(1)(C) dealing with the cause of
wrongful detention ….” Id. committee
comments. It seems doubtful that a declaration limited to the
declarant's “belie[f]” could satisfy the
personal knowledge requirement. Certainly the plaintiff has
not explained how its qualified suspicion satisfies the rule.
Court's reluctance to find Rule 64(b)(1)(B) satisfied is
heightened by events since the filing of the plaintiff's
motion. The plaintiff has, with admirable integrity,
supplemented its motion in order to withdraw the motion as to
15 of the 21 accounts listed therein, on the grounds that it
“has recently learned information that makes it suspect
that certain accounts listed in its request for prejudgment
attachment may not be owned by Defendants.” (Doc. 9 at
1). That the plaintiff concedes its error as to over 70% of
the accounts it originally listed does not instill confidence
as to the remaining 30%.
seeking to have the trial court seize an opposing party's
assets must strictly comply with Rule 64 ….”
Norman v. Occupational Safety Association, 811 So.2d
492, 502 (Ala. 2001). This includes the requirement that an
affidavit provide the information required by Rule 64(b)(1).
Id. On the present record and argument, the Court
cannot conclude that the plaintiff has complied with the
plaintiff seeks issuance of a writ of seizure without a
hearing or, failing that, after a hearing. (Doc. 4 at 4). The
plaintiff has not attempted to show that it may obtain a
hearing under Rule 64(b)(2) without first satisfying the
affidavit requirement under Rule 64(b)(1), and
Norman indicates this is not sanctioned.
See 611 So.2d at 501 (“The procedure a party
must follow to have the trial court seize the
property of an opposing party is set forth in Rule 64(b)(1)
….”) (emphasis added).
reasons set forth above, the plaintiff's motion for
prejudgment attachment is denied, without
prejudice to the plaintiff's ability to seek such relief
upon a proper showing.