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CAPE COD BANK & TRUST CO. v. AVRAM

July 28, 1988

CAPE COD BANK & TRUST COMPANY, Plaintiff,
v.
LLOYD D. AVRAM, et al., Defendants



The opinion of the court was delivered by: LAMBERTH

 ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE

 This action began as a suit for money owed against defendant Lloyd D. Avram. Plaintiff later amended its complaint to add defendants Homeowners' Guardian Title and Escrow Company ("Homeowners"), William B. Bryant, Jr., Richard C. Ridgeway, and James M. Griffin. Plaintiff alleges that Homeowners breached its duty to act as a reasonable settlement agent in Avram's sale of a piece of property to defendant Bryant. Defendants Ridgeway and Griffin are trustees of a note securing that sale. The case is now before the court on plaintiff's Motion for Partial Declaratory Judgment and defendants' motions for summary judgment. At issue is the validity of plaintiff's attempt to attach the aforementioned property prior to its conveyance from Avram to Bryant.

 Facts

 Plaintiff is a Massachusetts bank that allegedly loaned money in excess of $ 15,500 to defendant Avram. Sometime in late April of 1987, plaintiff sought to secure that debt by attaching Avram's property located at 2711 Ordway Street, N.W., Washington, D.C. *fn1" At about the same time, Avram was endeavoring to sell that piece of property to defendant Bryant. To this end, a contract of sale had been entered into on February 13, 1987, and ratified on February 19, 1987. Settlement took place on April 27, 1987, and on that date the deed was delivered to Bryant.

 On April 28, 1987, plaintiff filed this action, accompanied by a motion for writ of attachment; Judge Sporkin granted the motion the same day, and the Clerk of the Court issued the writ on April 29, 1987. At 11:29 a.m. on the 29th, plaintiff recorded the Court's order with the Recorder of Deeds for the District of Columbia. *fn2" On the same day, plaintiff delivered the order and writ to the United States Marshal.

 Bryant recorded the deed of sale for the subject property at 10:38 a.m. on April 30, 1987. At 3:05 p.m. on that date, Deputy U.S. Marshal Walter N. Rich posted the order and attachment on the front door of those premises.

 Analysis

 Plaintiff's dispute with defendants Bryant, Ridgway and Griffin turns on the question of whether the attachment of Avram's property was perfected prior to the transfer of that property to Bryant. If so, Bryant's interest in the property is subject to the attachment; if not, then the writ of attachment is invalid as to Bryant and should be quashed.

 The District of Columbia Code allows attachment before judgment in section 16-501; a writ issued under that section must be served in accordance with section 16-502:

 
(a) A writ issued pursuant to section 16-501 shall require the marshal to serve a notice on the defendant, if he is found in the District, and on any person in whose possession any property or credits of the defendant may be attached, to appear in the court on or before the twentieth day, exclusive of Sundays and legal holidays after service of the notice, and show cause, if any there be, why the property so attached should not be condemned and execution thereof had. The marshal's return shall show the fact of the service.
 
(b) If the defendant is returned "Not to be found," the notice shall be given by publication . . .
 
(c) published at least once a week for three successive weeks or oftener, or for such further time and in such ...

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