Idaho State Statutes - Idaho Attorney Directory

APPLICATION -- COURT EXAMINATION -- ORDER TO SHOW CAUSE -- NOTICE
-- HEARING -- TEMPORARY RESTRAINING ORDER. (a) A plaintiff desiring the
issuance of a writ of attachment shall file with the court an application
therefor supported by an affidavit made by or on behalf of plaintiff setting
forth:
1. That the defendant is indebted to the plaintiff (specifying the amount
of such indebtedness over and above all legal setoffs or counterclaims)
and whether upon a judgment or upon a contract for the direct payment of
money, and that the payment of the same has not been secured by any
mortgage, deed of trust, security interest or lien upon real or personal
property, or if originally secured, that such security has, without an act
of the plaintiff, or the person to whom the security was given, become
valueless.
2. When the defendant is a nonresident of this state, that such defendant
is indebted to the plaintiff (specifying the amount of such indebtedness
over and above all legal setoffs or counterclaims), and that defendant is
a nonresident of the state.
3. That the attachment is not sought and the action is not prosecuted to
hinder, delay or defraud any creditor of the defendant.
(b) The court shall, without delay, examine the complaint and affidavit,
and if satisfied that they meet the requirements of subdivision (a), it shall
issue an order directed to the defendant to show cause why a writ of
attachment should not issue. Such order shall fix the date and time for the
hearing thereon, which shall be no sooner than five (5) days from the issuance
thereof, and shall direct the time within which service thereof shall be made
upon the defendant. Such order shall inform the defendant he may file
affidavit on his behalf with the court and may appear and present testimony on
his behalf at the time of such hearing, or he may, at or prior to such
hearing, file with the court a written undertaking to stay the issuance of the
writ of attachment in accordance with the provisions of section 8-506C, Idaho
Code, and that if he fails to appear plaintiff will apply to the court for a
writ of attachment without further notice to defendant. If the attachment has
issued prior to the hearing, the defendant may apply to the court to have the
hearing set at an earlier date. Such order shall fix the manner in which
service thereof, together with a copy of the complaint and affidavit, shall be
made, which shall be by personal service, or in such manner as the judge may
determine to be reasonably calculated to afford notice thereof to the
defendant under the circumstances appearing from the complaint and affidavit.
The plaintiff shall cause proof of service to be filed with the court prior to
the hearing.
(c) Upon examination of the complaint and affidavit and such other
evidence or testimony as the judge may, thereupon, require, a writ of
attachment may be issued prior to hearing, if probable cause appears that any
of the following exist:
(1) The jurisdiction of the court is predicated upon attachment of the
defendant's property within this state;
(2) The property specifically sought to be attached consists of one (1)
or more negotiable instruments. In such case the writ shall by its terms
restrict the levy by the sheriff thereunder, to such negotiable
instruments;
(3) By reason of specific facts shown, the property specifically sought
to be attached is a bank account subject to the threat of imminent
withdrawal, or is perishable, and will perish before any noticed hearing
can be had, or is in immediate danger of destruction, serious harm,
concealment, or removal from this state, or of sale to an innocent
purchaser, and the holder of such property threatens to destroy, harm,
conceal, remove it from the state, or sell it to an innocent purchaser. In
such case the writ shall by its terms limit the levy by the sheriff
thereunder to such specific property.
Where a writ of attachment has been issued prior to hearing under the
provisions of this section, the defendant or other person from whom possession
of such property has been taken may apply to the court for an order shortening
the time for hearing on the order to show cause, and the court may, upon such
application, shorten the time for such hearing, and direct that the matter be
heard on not less than forty-eight (48) hours' notice to the plaintiff.
(d) Under any of the circumstances described in subsection (a), or
paragraph (1) of subsection (c) of this section, or in lieu of the immediate
issuance of a writ of attachment under any of the circumstances described in
paragraphs (2) and (3) of subsection (c) of this section, the judge may, in
addition to the issuance of an order to show cause, issue such temporary
restraining orders, directed to the defendant, prohibiting such acts with
respect to the property, as may appear to be necessary for the preservation of
rights of the parties and the status of the property.
(e) Upon the hearing on the order to show cause, the court shall consider
the showing made by the parties appearing, and shall make a preliminary
determination of whether there is a reasonable probability that the plaintiff
will prevail in its claim. If the court makes this determination favorably to
the plaintiff, it shall, upon examination of the evidence or testimony
submitted and such other evidence or testimony as the judge may thereupon(,)
require, determine the proper amount to be specified in the undertaking
required by section 8-503, Idaho Code, and if requested, the value of any
property sought to be retained by or returned to defendant and the proper
amount to be specified in any undertaking which may be or has been filed by
defendant pursuant to section 8-506C, Idaho Code. If the court determines that
the action is one in which a writ of attachment should issue, it shall direct
the issuance of such writ. The court may direct the order in which the writ
shall be levied upon different assets of the defendant, if, in the aggregate,
they exceed in value an amount clearly adequate to secure any judgment which
may be recovered by the plaintiff.

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