0257-sb 0338

CHAPTER 257

SB 338 - FINAL VERSION

AN ACT relative to trustee process.

SPONSORS: Sen. Gordon, Dist 2; Sen. Wheeler, Dist 21; Sen. McCarley, Dist 6; Rep. Keans, Straf 16; Rep. J. Pratt, Ches 2; Rep. Withee, Hills 15

I. Provides a process whereby filing with the court an inventory of assets held by a third-party trustee and due defendant shall constitute an appearance and no other formalities need be satisfied by the trustee, unless the inventory is challenged.

II. Provides that if a bank, trust company, or similar corporation is named as third-party trustee, and receives notice of attachment after 3:00 p.m. on a business day, such trustee shall have until the beginning of the next business day to effect the attachment.

III. Provides what constitutes default and the consequences of such default by a third-party trustee.

IV. Provides for an evidentiary hearing if the plaintiff or defendant disputes the extent of a third-party trustee's chargeability, or if the trustee denies property is subject to trustee process.

V. Provides a procedure whereby a trustee may pay assets into the court or turn assets over to a court-appointed receiver.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to trustee process.

Be it Enacted by the Senate and House of Representatives in General Court convened:

257:1 Trustee Process; Writ; Trustee Disclosure Form. Amend RSA 512:3 to read as follows:

512:3 Writ. The trustee writ shall be an attachment and summons, and shall be served upon the defendant and trustee like a writ of summons, and the goods and estate of the defendant may be attached thereon. Concurrently therewith, the trustee shall be served with a trustee disclosure form in compliance with RSA 512:9-d. The first page of the attachment shall bear a notice in boldface, in at least 12-point type, advising the trustee to complete and file the enclosed disclosure of trustee form with the court, the plaintiff, and the defendant within 30 days of receipt or suffer the risk of default. Return of the trustee disclosure form shall operate as an answer and an appearance on behalf of the trustee. A corporation summoned as trustee may appear and answer through its cashier, treasurer, clerk, or such other officer or employee as it shall appoint.

257:2 Trustee Process; Bank Accounts; Service. Amend RSA 512:9-b to read as follows:

512:9-b Bank Accounts. When a bank, trust company, building and loan association, or similar corporation is named as trustee, the trustee shall be summoned by service [on an officer, person in charge, teller, or office employee of such bank, trust company, building and loan association, or similar corporation at its office if service is made during banking hours, and, if service is made at a time other than banking hours, by service on an officer of such bank, trust company, building and loan association, or similar corporation, and not otherwise. The trustee so served shall not be chargeable for any goods, rights, or credits of the defendant except as shall be in the hands of the trustee at the time of service] only upon a bank officer, branch supervisor, or head teller of a branch only from 8:00 a.m. to 3:00 p.m., Monday through Friday except bank holidays. The trustee so served shall be chargeable only for any money, goods, chattels, rights, or credits of the defendant in the trustee's hands at the time of service, subject to any reductions due the trustee for account fees, amounts alleged or determined not to belong to the defendant or other priority claims to defendant's money, goods, chattels, rights, or credits. If summoned by service after 3:00 p.m., the trustee shall have until the beginning of the next business day to effect the attachment.

257:3 New Sections; Trustee Process; Duties of Trustee; Trustee Disclosure Form; Extension for Filing Disclosure Form. Amend RSA 512 by inserting after section 9-b the following new sections:

512:9-c Duties of Trustee. The trustee so served shall place a hold on money, goods, chattels, rights, or credits of the defendant that are in the trustee's hands at the time of service, but shall have no duty to collect money, goods, chattels, rights, or credits either belonging to the defendant or that may become due or owing the defendant after that time.

512:9-d Trustee Disclosure Form. The trustee disclosure form served upon the trustee in compliance with RSA 512:3 shall include only the following interrogatories and nothing more:

"I. On what date were the trustee writ (including attachment and summons) and trustee disclosure form served upon you?";

"II. What money, rights, goods, chattels, and/or credits belonging to or due defendant did you hold at the time of service?";

"III. Are any of the money, rights, goods, chattels, and/or credits disclosed by you in response to interrogatory II subject to reductions for account fees and/or amounts alleged or determined not to belong to the defendant? If so, please state the amount and the basis."; and

"IV. At this time, are you aware whether the money, rights, goods, chattels, and/or credits disclosed by you in response to interrogatory II are subject to priority claims of other people? If so, please state the amount, the basis for the priority claims, and the claimants."

512:10 Default. No person summoned as trustee in an action shall be charged on default until [he] that person shall have neglected to [~~answer in the action~~] file a properly served trustee disclosure form in a timely manner, after such notice as the court [~~or justice, at the term when the action is entered or at some subsequent term,~~] may order.

512:11 Effect. If the trustee [~~makes default after the notice provided in RSA 512:10 he~~] fails to file a trustee disclosure form with the court within 30 days of service of the trustee writ on the trustee, the trustee [~~shall~~] may be adjudged chargeable [~~for the amount of the judgment which may be recovered by the plaintiff against the defendant~~] for a sum up to the amount of the judgment which may be recovered by the plaintiff against the defendant.

257:6 Trustee Process; Taking of Trustee's Deposition. Amend RSA 512:12 to read as follows:

512:12 Taking. [~~Disclosure of trustees may be given or taken by any party to the action at any time after the service of the writ upon the trustee,~~] Within 30 days of the filing of the trustee disclosure with the court, the plaintiff or defendant shall be entitled to take trustee's deposition on the issue of trustee's chargeability upon such notice to the [~~adverse party~~] trustee as is required in taking depositions under court rules and upon the payment [~~or tender~~] to the trustee of [~~his~~] fees for travel and attendance [~~as in the case of witnesses~~].

257:7 New Section; Trustee Process; Evidentiary Hearing. Amend RSA 512 by inserting after section 18 the following new section:

512:18-a Evidentiary Hearing. If the court receives no objection to a trustee disclosure within 30 days of the date of receipt of such disclosure, the disclosure shall determine the chargeability of the trustee. If the plaintiff or the defendant files a written objection to the trustee disclosure within 30 days of receipt of the trustee's disclosure, or if the trustee fails to file a trustee disclosure form with the court within 30 days of service of the trustee writ on the trustee, the court shall schedule an evidentiary hearing on the extent of the trustee's chargeability.

512:20 Charging Trustee. [~~If,~~] Upon the filing of trustee disclosure not objected to within 60 days of filing [~~depositions in the case~~], or, [~~if there is a trial by jury,~~] upon the [~~verdict of the jury~~] court's decision following an evidentiary hearing on the trustee's chargeability, [~~it appears that~~] the court shall charge the trustee [~~had in his possession at the time of the service of the writ upon him, or at any time after,~~] for any money, goods, chattels, rights, or credits of the defendant in the trustee's possession at the time of the service of the writ and not exempted from trustee process, [he] or subject to any reductions for account fees, amounts alleged or determined not to belong to the defendant [~~shall be adjudged chargeable therefor~~] or other priority claims to defendant's money, goods, chattels, rights, or credits.

257:9 Trustee Process; Receiver for Property Disclosed; Refusal to Deliver. Amend RSA 512:32 to read as follows:

512:32 Refusal to Deliver. If the [~~person summoned as~~] trustee [~~shall refuse~~] refuses to deliver to [~~the~~] a receiver[~~, agreeably to the order of court,~~] appointed under RSA 512:29 or RSA 512:30 any note, security for money, evidence of debt, chose in action or other property, [~~he shall be adjudged trustee for the value thereof~~] on the grounds that such property is not subject to trustee process, the court shall schedule an evidentiary hearing to determine the validity of such refusal. If, after the evidentiary hearing, the court determines that the property is subject to trustee process and orders the trustee to deliver the property, the trustee shall be adjudged chargeable for the value thereof.

512:39 Paying into Court. The defendant or trustee may discharge the liability of the trustee by paying into court the sum for which the trustee is charged. Payment into court by the trustee shall discharge the trustee as a party to the underlying lawsuit.

257:11 Trustee Process; Costs; Order of Court. Amend RSA 512:43 to read as follows:

512:43 Order of Court. The trustee shall recover [~~his~~] the trustee's costs in all cases from the plaintiff except as provided in this chapter, unless otherwise ordered by the court, and the court shall adjust all costs in matters relating to trustee process as between the plaintiff and trustee or any claimant of property in the hands of the trustee as shall seem equitable. Such costs shall be retained by the trustee from the amount chargeable.

257:12 Trustee Process; Application of Provisions. Amend RSA 512:48 to read as follows:

512:48 Application of Provisions. The provisions of this chapter, so far as they are applicable to actions in municipal and district courts, shall apply to actions and proceedings therein and to process issued therefrom[~~, but no party summoned as trustee shall have judgment entered against him until after notice has been given him to disclose, or after disclosure made~~].