§ Rule 1075.2 Ex Parte Issuance of Writ of Seizure

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Rule 1075.2. Ex Parte Issuance of Writ of Seizure

    (a) After the complaint has been filed, a writ of seizure may be issued by the court ex parte at any time upon motion of the plaintiff, upon the filing of a bond as provided by Rule 1075.3 if plaintiff satisfies the court of the probable validity of the claim to possession and that there is probable cause to believe that before notice can be given or hearing held,

        (1) the value of the property and the plaintiff's interest therein will be adversely affected by the continued possession and use by the defendant; or

        (2) the defendant or other person in possession will conceal, dispose, encumber, waste the property or the revenues therefrom, if any, or remove the same from the county.

    If the motion includes additional facts not averred in the complaint, it shall be verified in the same manner as a complaint.

    (b) A copy of the complaint and the motion for ex parte issuance of the writ of seizure shall be served with the writ of seizure.

    (c) If a writ has been issued and the property has been seized, a hearing shall be held within seventy-two hours after the seizure of the property. The notice of the hearing shall be substantially in the form provided by Rule 1353. It shall inform the defendant and any other person found in possession of the property of the place, date and time of the hearing. Service of the notice shall be in the manner provided by Rule 1075.1(d).

    (d) The hearing shall be held whether or not the defendant or other person found in possession of the property is served or appears. If the court determines that no notice as required by this rule has been given or no reasonable attempt to give such notice has been made, it shall vacate the writ and the property shall be returned to the person from whom it was taken. If the court is satisfied that notice as required by this rule has been given or a reasonable attempt to give such notice has been made, it shall determine from the complaint, affidavits, testimony, admissions or  other evidence whether the plaintiff has established the probable validity of the claim to possession and of the grounds for the ex parte issuance of the writ. If the court has determined that plaintiff has established such validity, it shall enter an order confirming the ex parte issuance of the writ.

        (1) If the plaintiff fails to establish the probable right to possession, the court shall vacate the writ and the property shall be returned to the person from whom it was taken. Thereafter, subject to the payment of expenses as hereinafter provided, the action shall then proceed as if no writ of seizure has been issued.

        (2) If the plaintiff establishes the probable right to possession but fails to establish the probable validity of the grounds for ex parte issuance of the writ, the court, upon payment by the plaintiff of the expenses as hereinafter provided, may permit the plaintiff to retain possession pending judgment subject to the right of a party to file a counterbond or to exercise any other right under these rules.

        (3) The expenses referred to in subdivisions (1) and (2) above shall be limited to reasonable expenses of a defending party which may include attorney's fees in litigating the issues of probable right to possession or probable validity of the grounds for ex parte issuance of the writ. The allowance of any expenses shall in all cases be  discretionary with the court. A plaintiff required to pay such expenses may not without leave of court take any further steps in the action so long as such expenses remain unpaid.

    Note: The expenses referred to in subdivision (d) are imposed upon plaintiff for the failure to sustain the ex parte issuance of the writ of seizure. They are distinct from special damages which will be adjudicated at the final disposition. See Rules 1084 and 1085.

    (e) The failure of a defendant or other person found in possession of the property to appear or be represented at the hearing shall not be considered a waiver of any right to defend the action or to file a counterbond.