Ark. Code Ann. § 16-110-130 (2020)
Motion to discharge
- At any time before the attachment is sustained, the defendant, upon reasonable notice to the plaintiff or the plaintiff's attorney, may move the court to discharge the attachment, the hearing of which may be postponed by the court, upon sufficient cause, from time to time.
- Upon the hearing, if the court is of the opinion that the attachment was obtained without sufficient cause or that the grounds of attachment being controverted are not sustained, the attachment shall be discharged.
History. Civil Code, § 282; C. & M. Dig., § 572; Pope's Dig., § 609; A.S.A. 1947, § 31-149.
Case Notes
Constitutionality.
Absent a judge's participation or supervision, there is a significant risk that a writ of attachment will be issued even though the statutory attachment procedures have not been met; this expressly overrules Springdale Farms, Inc. v. McIlroy Bank & Trust, 281 Ark. 371, 663 S.W.2d 936 (1984), which held that the issue of prejudgment attachments by the clerk met the “safeguards test” and satisfied due process. McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).
The lack of prompt notice to the debtor of a prejudgment attachment and of possible state or federal exemptions and the lack of a prompt hearing at which the debtor can claim exemptions leaves the prejudgment attachment provisions inadequate to prevent an erroneous deprivation of property in violation of due process. McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).
In General.
This is a procedural section that provides for a court hearing when the attachment has been issued by the clerk of the court; the court may discharge the attachment issued by the clerk if it was obtained without sufficient cause, which means without a statutory ground, or if the existence of the asserted ground is successfully controverted by evidence presented to the court upon the motion to discharge the attachment. Sun Marine Terminals v. Tosco Corp., 287 Ark. 233, 697 S.W.2d 901 (1985).
Grounds Sufficient.
Where the pleading contained an allegation that the value of the security was diminishing and that the debtor was in the process of selling or disposing of the collateral and that the collateral was in danger of being sold, concealed, or moved from the premises in derogation of the rights and interest of the secured party, without the proceeds being applied to the debt and contrary to the terms of the security agreement, and where it was further alleged that if the property were not attached it would greatly diminish, the allegations made by the secured party stated a ground for attachment. Hackworth v. First Nat'l Bank, 265 Ark. 668, 580 S.W.2d 465 (1979).
Judgment.
Upon the discharge of an attachment, the defendant should have judgment for the return of the attached property. Jackman v. Anderson, 33 Ark. 414 (1878).