First Insurance Funding v. Eddins et al
ORDER denying 4 Motion for Prejudgment Attachment. Signed by District Judge William H. Steele on 2/16/2018. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
FIRST INSURANCE FUNDING, etc.,
SHEILA EDDINS, etc., et al.,
) CIVIL ACTION 18-0038-WS-M
This matter is before the Court on the plaintiff’s motion for prejudgment
attachment. (Doc. 4). The plaintiff invokes Alabama Rule of Civil Procedure
64(b), by way of Federal Rule of Civil Procedure 64(a).
The defendants are Eddins Corporation (“Eddins”), Sheila Eddins
(“Sheila”), and Billy Eddins (“Billy”). The amended complaint, (Doc. 8), asserts
that Eddins (an insurance agency) received from the plaintiff (an insurance
premium finance lender) almost $2 million in 2017 and that it now appears that in
many cases there was in fact no underlying insured and/or insurance carrier to
which Eddins forwarded the funds received from the plaintiff. The amended
complaint further asserts that Eddins’ bank accounts contain only about $25,000.
The amended complaint additionally asserts, on information and belief, that Sheila
(the president of Eddins) absconded with these funds, transferring them from
Eddins’ account to her personal accounts. The amended complaint further asserts
that Sheila “may have” transferred some of the disputed funds to accounts owned
The plaintiff’s motion seeks to attach 21 listed bank accounts. The plaintiff
states in its motion that “[t]his account information comes from various accounts
that Defendants submitted as belonging to insureds. Upon further investigation,
[the plaintiff] discovered that these accounts most likely belong to defendants.”
(Doc. 4 at 5). For this proposition, the plaintiff relies on the declaration of its
executive vice president. (Id.). The declarant states as follows:
Based on its investigation into accounts where the Agency
made payments to [the plaintiff] purportedly on behalf of an insured,
[the plaintiff] was able to identify numerous accounts that it believes
are owned by Sheila Eddins, Billy Eddins, or the Agency. [The plaintiff]
believes that some of its funds that Ms. Eddins, Mr. Billy Eddins, and/or
the Agency absconded with may be contained in these accounts.
(Doc. 4-1 at 3).
To trigger the remedy of pre-judgment attachment, Rule 64(b) requires the
filing of an affidavit containing certain information, including “[a] statement that
the plaintiff is the owner of the claimed property or is entitled to possession of it
….” Ala. R. Civ. P. 64(b)(1)(B). The declaration quoted above contains no such
statement. Instead, the declarant asserts that, through a process the contours of
which are unexplained, the plaintiff identified 21 accounts where it “believes” that
some of its funds “may be” contained. These hedging words would appear to fall
far short of the definitive “is” that Rule 64(b)(1)(B) requires. Moreover, “[t]he
affidavit … must be based on personal knowledge except where information and
belief is permitted by ARCP 64(b)(1)(C) dealing with the cause of wrongful
detention ….” Id. committee comments. It seems doubtful that a declaration
limited to the declarant’s “belie[f]” could satisfy the personal knowledge
requirement. Certainly the plaintiff has not explained how its qualified suspicion
satisfies the rule.
The Court’s reluctance to find Rule 64(b)(1)(B) satisfied is heightened by
events since the filing of the plaintiff’s motion. The plaintiff has, with admirable
integrity, supplemented its motion in order to withdraw the motion as to 15 of the
21 accounts listed therein, on the grounds that it “has recently learned information
that makes it suspect that certain accounts listed in its request for prejudgment
attachment may not be owned by Defendants.” (Doc. 9 at 1). That the plaintiff
concedes its error as to over 70% of the accounts it originally listed does not instill
confidence as to the remaining 30%.
“[P]arties seeking to have the trial court seize an opposing party’s assets
must strictly comply with Rule 64 ….” Norman v. Occupational Safety
Association, 811 So. 2d 492, 502 (Ala. 2001). This includes the requirement that
an affidavit provide the information required by Rule 64(b)(1). Id. On the present
record and argument, the Court cannot conclude that the plaintiff has complied
with the affidavit requirement.
The plaintiff seeks issuance of a writ of seizure without a hearing or, failing
that, after a hearing. (Doc. 4 at 4). The plaintiff has not attempted to show that it
may obtain a hearing under Rule 64(b)(2) without first satisfying the affidavit
requirement under Rule 64(b)(1), and Norman indicates this is not sanctioned. See
611 So. 2d at 501 (“The procedure a party must follow to have the trial court seize
the property of an opposing party is set forth in Rule 64(b)(1) ….”) (emphasis
For the reasons set forth above, the plaintiff’s motion for prejudgment
attachment is denied, without prejudice to the plaintiff’s ability to seek such relief
upon a proper showing.1
DONE and ORDERED this 16th day of February, 2018.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
The Court does not warrant that curing the noted deficiency in the declaration
will of itself resolve all issues with the plaintiff’s motion. The Court notes, for example,
that the file fails to reflect that Sheila and Billy have received notice of the motion.
(Docs. 5, 6). Nor does the motion satisfactorily address the existence or parameters of
any bond requirement. Nor has the plaintiff demonstrated that the affidavit requirement
may be satisfied by a declaration.
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