Rule 64A. Prejudgment writs in general.
(a) Availability. A writ of replevin, attachment or garnishment is available after the
claim has been filed and before judgment only upon written order of the court.
(b) Motion; affidavit. To obtain a writ of replevin, attachment or garnishment before judgment,
plaintiff shall file a motion, security as ordered by the court and an
affidavit stating facts showing the grounds for relief and other information
required by these rules. If the plaintiff cannot by due diligence
determine the facts necessary to support the affidavit, the plaintiff
shall explain in the affidavit the steps taken to determine the facts and why
the facts could not be determined. The affidavit supporting the motion shall
state facts in simple, concise and direct terms that are not conclusory.
(c) Grounds for prejudgment writ. Grounds
for a prejudgment writ include, in addition to the grounds for the specific
writ, all of the requirements listed in subsections (c)(1) through (c)(3) and
at least one of the requirements listed in subsections (c)(4) through (c)(10):
(c)(1) that the
property is not earnings and not exempt from execution; and
(c)(2) that the
writ is not sought to hinder, delay or defraud a creditor of the defendant; and
(c)(3) a
substantial likelihood that the plaintiff will prevail on the merits of the
underlying claim; and
(c)(4) that the
defendant is avoiding service of process; or
(c)(5) that the
defendant has assigned, disposed of or concealed, or is about to assign,
dispose of or conceal, the property with intent to defraud creditors; or
(c)(6) that the
defendant has left or is about to leave the state with intent to defraud
creditors; or
(c)(7) that the
defendant has fraudulently incurred the obligation that is the subject of the
action; or
(c)(8) that the
property will materially decline in value; or
(c)(9) that the
plaintiff has an ownership or special interest in the property; or
(c)(10) probable
cause of losing the remedy unless the court issues the writ.
(d) Statement. The affidavit supporting the
motion shall state facts sufficient to show the following information:
(d)(1) if known, the nature, location,
account number and estimated value of the property and the name, address and
phone number of the person holding the property;
(d)(2) that the
property has not been taken for a tax, assessment or fine;
(d)(3) that the
property has not been seized under a writ against the property of the plaintiff
or that it is exempt from seizure;
(d)(4) the name and
address of any person known to the plaintiff to claim an interest in the
property; and, if the motion is for a writ of garnishment,
(d)(5) the name and
address of the garnishee; and
(d)(6) that the
plaintiff has attached the garnishee fee established by Utah Code Section
78A-2-216.
(e) Notice, hearing. The court may order
that a writ of replevin, attachment or garnishment be
issued before judgment after notice to the defendant and opportunity to be
heard.
(f) Method of service. The affidavit for the
prejudgment writ shall be served on the defendant and any person named by the
plaintiff as claiming an interest in the property. The affidavit shall be
served in a manner directed by the court that is reasonably calculated to
expeditiously give actual notice of the hearing.
(g) Reply. The defendant may file a reply to
the affidavit for a prejudgment writ at least 24 hours before the hearing. The
reply may:
(g)(1) challenge
the issuance of the writ;
(g)(2) object to the sufficiency of the
security or the sufficiency of the sureties;
(g)(3) request
return of the property;
(g)(4) claim the
property is exempt; or
(g)(5) claim a set
off.
(h) Burden of proof. The burden is on the
plaintiff to prove the facts necessary to support the writ.
(i) Ex parte writ
before judgment. If the plaintiff seeks a prejudgment writ prior to a hearing,
the plaintiff shall file an affidavit stating facts showing irreparable injury
to the plaintiff before the defendant can be heard or other reason notice
should not be given. If a writ is issued without notice to the defendant and
opportunity to be heard, the court shall set a hearing for the earliest
reasonable time, and the writ and the order authorizing the writ shall:
(i)(1)
state the grounds for issuance without notice;
(i)(2)
designate the date and time of issuance and the date
and time of expiration;
(i)(3)
designate the date, time and place of the hearing;
(i)(4)
forthwith be filed in the clerk's office and entered
of record;
(i)(5)
expire 10 days after issuance unless the court establishes an earlier
expiration date, the defendant consents that the order and writ be extended or
the court extends the order and writ after hearing;
(i)(6)
be served on the defendant and any person named by the plaintiff as claiming an
interest in the property in a manner directed by the court that is reasonably calculated
to expeditiously give actual notice of the hearing.