Rogoski v. Hammond , 9 Wash. App. 500 ( 1973 )

Williams, J.

(concurring specially) — I concur with that part of Judge Horowitz’ opinion which vacates the order authorizing the issuance of a ^vrit of attachment. I disagree, however, with the attempt to establish a procedure whereby a prejudgment attachment can legally issue when the action is brought to recover on a debt arising from a contract, express or implied.

For the most part, the prejudgment attachment statute, RCW 7.12, with its summary procedure, serves a useful purpose and does not, in my opinion, violate constitutional due process. The special reasons given for the immediate issuance of the writ are listed in the statute as follows:

(1) That the defendant is a foreign corporation; or

(2) That the defendant is not a resident of this state;

or.

(3) That the defendant conceals himself so that the ordinary process of law cannot be served upon him; or

(4) That the defendant has absconded or absented himself from his usual place of abode in this state, so that the ordinary process of law cannot be served upon him; or

(5) That the defendant has removed or is about to remove any of his property from this state, with intent to delay or defraud his creditors; or

(6) That the defendant has assigned, secreted, or disposed of, or is about to assign, secrete, or dispose of, any of his property, with intent to delay or defraud his creditors; or

(7) That the defendant is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or

(8) That the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or

(9) That the damages for which the action is brought are for injuries arising from the commission of some felony, or for the seduction of some female; or

(10) That the object for which the action is brought is to recover on a contract, express or implied.

ECW 7.12.020.

With the exception of subsection 10, these reasons apply to extraordinary or unusual circumstances which may justify issuance of the writ upon affidavit, a bond, and without hearing. Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972); Boddie v. Connecticut, 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971); Sniadach v. Family Fin. Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969); Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 511 P.2d 1002 (1973); and Lucas v. Stapp, 6 Wn. App. 971, 497 P.2d 250 (1972). The summary procedure of the statute should not be used for subsection 10, because it applies to a commonplace situation which requires no special protection of a public interest.

To make the issuance of a writ based upon subsection 10 constitutionally valid, the majority opinion formulates these rules:

(1) timely and adequate notice of hearing on the probable validity of the creditor’s claim which states the basis for the claim and allows the debtor adequate time to prepare for the hearing; (2) an independent and impartial decision maker; (3) the right to appear personally at the hearing, with or without retained counsel; (4) the right at the hearing to confront and cross-examine any adverse witness and to present evidence and oral argument in support of his claim or defense; (5) the right to a decision based on applicable legal rules and evidence adduced at the hearing.

In addition, it is specified in the majority opinion that

The creditor, by affidavit or by oral testimony or both, may set forth the basis of his claim. The debtor, by affidavit, oral testimony or both, may set forth his defense to the claim. He may deny the claim. He may also assert an affirmative defense described in CR 8 (c), such as

accord and satisfaction, arbitration and award, . . . discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, . . . payment, release, res judicata, statute of frauds, statute of limitations, waiver . . .

The debtor may assert a setoff or counterclaim to show that in fact the creditor has no net claim against the debtor on which to base a prejudgment writ of attachment.

Also, the court must enter some kind of informal findings and the proceedings must be reported so that a statement of facts can be prepared in the event of a review.

In my opinion, there is no need for this expensive prelude to an action upon a simple contract debt, even assuming that this court is authorized to devise such a procedure. If a creditor wants the debt secured, there are ample statutory means to accomplish that end, RCW Title 62A, without resorting to full-scale litigation in advance of trial on the merits. In any event, it is for the legislature, not this court, to determine the wisdom of establishing a cause of action for the conversion of an unsecured debt into a secured or priority one by court action.