Table of Contents

Introduction....................... 1

Pre-Judgment Security Devices.......................3

               Attachment.......................3

               Keeper Attachment.......................12

               Trustee Process.......................13

               Reach and Apply.......................16

               Receivership.......................23

               Lis Pendens and Replevin.......................27

Post Judgment Enforcement Methods.......................29

Enforcement of Judgment.......................30

               Execution.......................30

               Execution on Personal Property.......................30

               Execution on Real Property.......................32

               Execution on Trustee Process.......................35

Discovery of Assets.......................36

               Discovery In Aid of Execution.......................36

               Supplementary Process.......................37

Conclusion.......................39

TABLE OF AUTHORITIES CASES

Hall v. Crocker, 44 Mass. 245 (1841)     32

Massachusetts Prejudgment Security Devices:  Attachment, Trustee Process and Reach and Apply, 69 Mass. L. Rev. 156 (1984)               21

Osborne v. Biotti, 404 Mass. 112, 533 NE 2d 1341 (1989)               30

 

Peebles v. Minnis, 402 Mass. 282, 521 NE 2d 1372 (1988)               10

 

Shapiro, Perlin and Conners, Massachusetts Collection Law, 1992, Lawyers’ Cooperative Publishing Co               21

STATUTES

 

M.G.L.C. 156 § 51....................... 25

M.G.L.C. 188 § 1A....................... 9

M.G.L.C. 201 § 1....................... 10

M.G.L.C. 214 § 3 (6-9)....................... 17

M.G.L.C. 214 § 3 (7)....................... 20

M.G.L.C. 214 § 3 (8)....................... 20

M.G.L.C. 214 § 3 (9)....................... 20

M.G.L.C. 223 § 42....................... 3

M.G.L.C. 223 § 42A....................... 5

M.G.L.C. 223 § 42-83A....................... 4

M.G.L.C. 223 § 74-75....................... 15

M.G.L.C. 223 § 74-83A....................... 31

M.G.L.C. 223 § 87-133....................... 4

M.G.L.C. 223 § 114A....................... 34

M.G.L.C. 223 § 130....................... 26

M.G.L.C. 224....................... 36

M.G.L.C. 223 § 71....................... 11

M.G.L.C. 235 § 34....................... 9

M.G.L.C. 235 § 35....................... 30

M.G.L.c. 236 § 4....................... 32

M.G.L.c. 236 § 31....................... 34

M.G.L.c. 246 § 40....................... 15

M.G.L.c. 247 § 7....................... 28

Mass. R. Civ. P. 4.1 (d)....................... 14

Mass. R. Civ. P. 4.1 (i)....................... 6

Rule 4.1 – Mass. Rules of Civil Procedures....................... 4

Rule 4.1(c)....................... 5

Rule 65.3 – Mass. Rules of Civil Procedures....................... 22

Rule 66 – Mass. Rules of Civil Procedures....................... 24

Rule 69 – Mass. Rules of Civil Procedures....................... 36

Superior Court Rule 9A....................... 6

12 U.S.C. § 1822(a)....................... 30

INTRODUCTION

Judgment collection begins before suit is filed.  For those who are responsible for collecting overdue loans, it may even appear that judgment collection begins before the credit is approved.  Judgment collection, viewed from vantage of one who has spent thousands of dollars to obtain a judgment for which there is no source of satisfaction, is comparable to the joke about sailing. It is like standing in a cold shower tearing up thousand dollar bills.

 

If you don’t begin thinking about judgment collection procedures until after the grant of a judgment by the court, you will probably be too late.  The source of payment of any judgment must be identified before suit is brought, must be monitored during the course of litigation in order to determine that circumstances have not changed the original economic analysis and must be pursued aggressively once judicial authority is in hand.

 

Therefore, this discussion of judgment collection will presume that in order to make the cost of suit worthwhile, the initial survey of the debtor’s financial condition indicates that sufficient assets are available to satisfy the judgment.  It should be remembered, however, that if the expectation that the judgment will be satisfied only out of debtor’s earned income, there is a very high probability that the debtor will declare bankruptcy.  Debtor’s financial condition must indicate that he/she has sufficient equity in his/her assets to make bankruptcy an unwelcome alternative and judgment collection possible.  This discussion will, therefore, not include bankruptcy issues and will presume that debtor’s filing for bankruptcy protection is either unlikely or is an acceptable alternative to the creditor.

 

As all of the discussion of debtor’s financial condition predicts, the first and most important legal step taken to collect a judgment is obtaining pre-judgment security.  The purpose of all of the actions the creditor may bring is to obtain security and to establish the order of priority of distribution upon liquidation of the debtor’s assets. [1]

 

In Massachusetts, there are three major pre-judgment security procedures available:  attachment, trustee process and reach and apply actions coupled with preliminary injunction.  In addition, in specific cases, a keeper attachment, a replevin action, filing of a notice of Lis Pendens or receivership may be considered.  In this memorandum, the legal and practical applications of each of these remedies and mechanisms will be discussed.

 

PRE‑JUDGMENT SECURITY DEVICES

 

Attachment

 

Tangible property, that is real estate, equipment, vehicles, and the like [2] (as distinguished from intangible property such as a partnership interest or shares of stock) is subject to attachment. A pre‑judgment attachment, in effect, grants to the creditor an involuntary lien on the debtor’s tangible property. [3] Of the various pre‑judgment security devices to be discussed, attachment is the simplest and most commonly used method of obtaining security for a judgment.

 

Attachments are authorized by Mass. Gen. Laws, Chapter 223 §42 but only in connection with or after bringing suit.

All real and personal property liable to be taken on execution, except such personal property as from its nature or situation has been considered as exempt according to the principles of the common law as adopted and practiced in the Commonwealth, or which is specifically exempt from . . . , may be execution attached upon a writ of attachment in any action in which the debt or damages are recoverable... (emphasis added).

 

 

 

The procedures for obtaining an attachment are governed by Rule 4.1 of the Massachusetts Rules of Civil Procedure and by sections 42-83A, 87-133 of Chapter 223 of the Gen. Laws.

 

To effect an attachment, it is necessary to obtain court approval. Under Rule 4.1, an attachment will be granted after hearing if the court finds

there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment.

 

Thus, the plaintiff, in order to obtain a pre-judgment attachment, must only show that a) there is a reasonable likelihood of recovery, and b) the amount of probable recovery. Most cases in which FDIC will have an interest will not involve insurance coverage. To obtain approval of an attachment, it is necessary to submit a motion to the court seeking approval of the attachment, an affidavit attesting to the facts supporting the likelihood of success and the amount of recovery, a notice of hearing and a writ of attachment. Although not specifically required, the motion and affidavit should set forth the amount for which attachment authority is sought and should set out the location of the property or the nature of the property interest to be attached. [4] (If an attachment of property alleged to have been fraudulently conveyed by debtor to transferee is sought, it is also necessary to support the allegations of fraudulent conveyance and to describe the chain of title.) Where suit is brought on a debt it is necessary to show the amount of the debt, accrued interest, and recoverable costs. The attachment may not exceed such amount. M.G.L. c. 223 §42A.

 

As noted above, an attachment may be applied for either at the time of the commencement of suit or at any time thereafter. An attachment may also be sought after judgment for the creditor, if the debtor seeks an appeal. [5]

 

The amount of the approved attachment represents the total value of the creditor's lien on the attached property, and subsequent creditors may obtain a lien, whether voluntary or involuntary, on any excess value of the property. Thus, calculation of the attachment amount should take into account the time between the commencement of the suit and the award of the judgment. Post judgment and post execution interest also must be calculated to be secured. If execution is suspended, as discussed below, and interest accrues in an amount in excess of the attachment allowed, it will not be secured.

 

In all but exceptional cases, prior to the grant of authority to attach property, the court will conduct a hearing. Typically the court will review the written materials presented and hear argument of counsel. It may conduct an evidentiary hearing. [6] Generally, however, the proceeding will turn on the affidavits of the creditor and the debtor. The opposing affidavit of the debtor must be served on the creditor at least ten days prior to the hearing. [7] The debtor is likely to argue that a) there is little likelihood of recovery; b) there are counterclaims which offset the claim of the creditor in whole or in part; c) or there are affirmative defenses to the claim. A debtor could argue, but in most instances is unlikely to do so, that the debtor's financial condition is sound and he is able to satisfy any judgment. [8]

 

The following represents a fairly typical example of an attachment process. The failed bank loaned $1 million to ABC, Inc. guaranteed by H. Cassidy and R. Rogers. The loan is secured by a pledge of ABC, Inc.’s assets but the guarantees are unsecured. At the time, the Receiver brings suit against the debtor and the guarantors it seeks an attachment of H. Cassidy's fleet of antique cars and R. Rogers vacation home. The Receiver, by affidavit, will show the terms of the loan transaction, will describe the events of default, will demonstrate that the guarantees are unconditional and that ABC, Inc.’s pledged assets have a value of only $75,000. Based on its estimates of loss and costs of collection, the Receiver anticipates recovery under the guarantees for the principal remaining, for interest to the date of litigation, for interest to the date of judgment, for interest to the date of execution and for interest to the date of payment, plus reasonable attorneys fees. Based on its calculations, the Receiver seeks an attachment of $1.75 million against each guarantor. The guarantors, of course, will defend on the basis of lender liability counterclaims, the value of ABC, Inc.’s assets being higher, the breach of conditions on the guarantee and failure to have acted in a commercially reasonable fashion. All defenses at this stage of the litigation are being raised only to demonstrate that it is either unlikely the Receiver will recover anything on the debt that the guarantors will be determined liable or that the judgment will be given in an amount approaching the asked for attachment. The court being relatively practical will, in all probability, grant the attachment because on balance more harm would befall the Receiver then the guarantors if no attachment is given.

 

In exceptional circumstances it is possible to obtain attachment authority without an adversarial hearing. Ex Parte attachments, i.e., attachments authorized without prior notice or an opportunity to object given to the debtor, are authorized when the court finds, in addition to the determination of the likelihood of recovery of judgment that i) the defendant is not subject to the jurisdiction of the court or ii) there is a clear danger that the defendant, if notified in advance, will convey the property, remove it from the state or conceal it, or iii) will damage or destroy the property.

 

The creditor's affidavit must address the additional matters of proof. In addition, the creditor must present a certificate of the amount of any liability insurance believed to be available to satisfy the judgment. In addition, it is useful to describe the basis of the creditors' allegations of insecurity such as prior misrepresentations to obtain credit, failure to respond to attempts to communicate, evidence of previous transfers in fraud on creditors, threatened transfers, significant business reversals, previous occasions involving destruction of property or previous or threatened efforts to remove or conceal property.

 

If one is granted authority to attach, the question then is what property, if any, is subject to such attachment. Clearly this information is necessary before authority is requested, but it is discussed after the procedural discussion since most tangible property is subject to attachment. There are some specific properties or interests in property, however, which are exempt or not reachable by attachment. The following represents a list of the more relevant types of property not subject to attachment:

 

                        a) Property held by the debtor as a trustee or custodian for another;

       b) Property exempt from attachment by common law: this includes property likely to be destroyed by seizure;

                        c) Stocks, bonds and other securities.

      d) Property exempt under M.G.L. c. 235 534. The list is relatively long and archaic (it included two cows, twelve sheep, two swine and four tons of hay. of interest is “an automobile necessary for personal inspection or to secure or maintain employment” up to a value of $700, cash and savings up to $125 and most importantly, “estates of homestead” as defined by M.G.L. c. 188 which exempts $100,000 of value.

                     e) 401(k) and IRA Accounts. [9]

Note: That all ERISA qualified plans are exempt from attachment or execution by federal law.

The general homestead exemption has been expanded for elderly and disabled persons to a value of $200,000. Such an exemption is declared by filing a notice at the Registry of Deeds. An elderly person is defined as being 62 years of age or older. [10]

 

Of particular interest to a creditor seeking to attach real estate is the manner in which debtor holds title. Clearly property standing only in debtor's name is subject to attachment as is property owned as a tenant in common or a joint tenant. Massachusetts, however, also recognizes, by statute, tenancies by the entirety. [11] A tenancy by the entirety is created by conveyance. However, the “interest of the debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the non-debtor spouse...” M.G.L. c. 201 51.

 

Under former law, a husband’s interest in a tenancy by the entirety property (but not the wife’s) was subject to attachment. Under the new law, a debtor's interest in such property is subject to attachment whether owned by the husband or the wife. [12] However, under former law, the husband's interest in the tenancy by the entireties could be executed against and the creditor of the husband could succeed to the husband's rights of possession, profits and rents subject only to the wife surviving the husband. Under current law, although attachment may be authorized, it is unclear that such attachment can ultimately be perfected as security for a judgment. Under Massachusetts practice, it is necessary to execute on an attachment within thirty days after rendition of a final judgment. Since under the statute execution is not permitted, serious question arises about the ultimate utility or efficacy of an attachment of property held by a husband and wife as tenants by the entirety. Note, however, that entirety property may include real estate other than a principal residence, and if such property exists, it will be subject to attachment, execution and levy.

 

In addition to property declared exempt from attachment, there are properties excluded from the reach of attachment. As described above, only tangible property is subject to attachment. Tangible property belonging to the debtor in the possession of a third party may not be attached and must be made the subject of a trustee process action. Intangible property, such as stocks, [13] notes and other negotiable securities and investments, partnership property and a beneficial interest in a trust to name a few, are subject only to actions of reach and apply. In actions to recover specific personal property and to effect pre-judgment security, a replevin action would be commenced and a notice of lis pendens would be used to secure an interest in a specific property. It is helpful if a creditor has a working understanding of these more specialized prejudgment security devices in order that appropriate pre-litigation analysis can be done.

 

Keeper Attachment

A keeper attachment simply extends the authority given the sheriff to retain property seized by attachment to a separate custodian. Although customarily used to relieve the sheriff from having to store and safeguard property and to assign the responsibility to one who can retain custody more conveniently and less expensively, i.e., an automobile garage storing a motor vehicle, the most important function of a keeper attachment from the FDIC’s perspective is the authority to allow property to be retained by the debtor but monitored by the keeper. Thus, if the debtor owns a manufacturing plant and the creditor wishes to attach debtor's machinery and equipment, it may do so by way of a keeper attachment. The assets will be watched over by the keeper while the debtor remains in business. If the debtor requests it, the keeper will be removed, but the property will then be removed from the premises. This is unlikely where the debtor desires to remain in business and be marginally cooperative. Where removal and storage would be expensive, however, a debtor may demand removal of the keeper as a tactic to force the creditor to dissolve the attachment.

 

A keeper attachment is obtained by following the same process used to obtain an attachment. In addition, the creditor must demonstrate that the appointment of a keeper is necessary.

 

A keeper attachment is also an effective post-judgment collection procedure. If the creditor wishes to secure an interest in income prior to judgment, however, it is necessary to seek the appointment of a receiver which is discussed below.

 

Trustee Process

Trustee process is the method by which a creditor can attach property of the debtor while it is in the possession of a third party. Once perfected, the transfer of the property by the trustee would subject the trustee to personal liability up to the amount or value of the property attached by the trustee process.

 

Frequently, trustee process will have more impact on the debtor than an ordinary attachment, since the property most often involved is money in bank accounts, accounts receivable, salary and wages.

 

Trustee process is obtained by seeking court authority in a manner similar to the attachment process and then serving a trustee summons on the person identified as holding debtor’s property. A trustee process attachment is effective upon service, but the trustee may deny liability or object to being made chargeable for debtor’s property. As noted, court authority for a trustee process attachment is required and as is customary for any attachment, notice of the motion and an opportunity to object and to be heard must usually be provided the defendant. [14]

After service of the trustee attachment on the trustee, the trustee has twenty days to file an answer. The answer must disclose “what goods, effects or credits, if any, of the defendant were in the hands or possession of the trustee when the trustee summons was served upon him.” [15] The Trustee may disclose that it holds no property or may object to a determination that it is liable.

 

If the trustee attachment is granted, it is important to note that the creditor must move to charge the trustee prior to entry of judgment in its action against the debtor. If the creditor fails to move to charge the trustee in time, the creditor may be unable to enforce any judgment against the trustee. This is true even where the trustee originally defaulted by failing to answer or object to its being determined a trustee. Where the trustee has admitted holding property belonging to the debtor, a simple motion to charge the trustee on its answer is sufficient. The motion to charge simply asks the court to make the trustee responsible to pay a specific sum or deliver property of a specific value to the creditor upon judgment in its favor. However, the trustee may challenge that he is chargeable as trustee by filing a written statement, on oath, setting forth in such facts which trustee may rely to escape his trustee obligation. Although the creditor may then propound interrogatories to the trustee which are aimed at determining facts which support trustee’s liability, the trustee's answer is considered true in determining chargeability. Nevertheless, if the creditor is able to show when it moves to charge that a false answer of the trustee has been knowingly and willfully made, the trustee is then personally liable for the full amount of any judgment, including interest.

 

The following is an example of a trustee proceeding which you may confront either as the creditor or as the representative of the Receiver named as trustee or sued for the failed banks alleged wrongful act.

 

Creditor sues ABC, Inc. on a debt and seeks a trustee process attachment against Really Tight Bank, N.A. for any accounts ABC, Inc. may maintain there. If Really Tight has no accounts, it will so disclose. But, if Really Tight has ABC, Inc. accounts and also holds ABC, Inc.'s unsecured note for $1 million, Really Tight will want to claim a set off security interest in the account. Really Tight should then file an answer denying it is chargeable because of its security interest, and it should notify creditor that creditor must pay it the value of Really Tight’s security interest in the account in order to proceed with its attachment. [16]

 

If the creditor has properly charged the trustee and receives judgment against the debtor, the creditor must execute on the trustee attachment within thirty days after final judgment. [17] If the creditor fails to execute within the time allowed, the attachment will be lost. [18] On the other hand, if execution is properly made and the trustee refuses or neglects to pay or deliver the property, the trustee may become personally liable to the creditor and is subject to suit by the creditor.

Reach and Apply

As with attachment and trustee process, an action to reach and apply provides pre-judgment security for a debt. Reach and apply actions will secure debtor's property whether it is in the possession of the debtor or in the possession of a third person. Reach and apply actions also provide a method of securing satisfaction of a judgment from property not otherwise subject to attachment or trustee process. There are two forms of reach and apply actions: common law and statutory.

 

The common law or non-statutory action can only be used where the debt upon which the reach and apply action is based has already been reduced to judgment. Thus the non-statutory action is a form of post-judgment collection remedy. The statutory actions for reach and apply permit the creditor to litigate the question of the debtor's liability and to secure payment from the debtor’s property. All actions for reach and apply must be commenced in the Superior Court, the Massachusetts District Courts having no jurisdiction. [19]

 

Four separate statutory reach and apply actions are described at M.G.L. c. 214 §3(6-9). The one most commonly used is provided for at clause (6):

Actions by creditors to reach and apply, in payment of a debt, any

Property, ...within or without the Commonwealth which cannot be

reached to be attached or taken on execution in an action of law...”

 

The general statutory reach and apply action must be grounded on a claim for payment of a debt. There are legal subtleties relating to the scope of the word debt, but for FDIC purposes the common understanding of the word debt will suffice. As defined, a reach and apply action is proper only when the property interests of the debtor are not susceptible to attachment or trustee process. Thus, reach and apply is the action to use to secure an interest in intangible property or property interests which are subject to some contingency. The following are representative of the types of property interests which are properly the subject of a general statutory reach and apply action.

 

Receivership

POST JUDGMENT ENFORCEMENT METHODS

Consideration of judgment collection has to this point focused on pre-judgment security devices and procedures. It is now time to turn to the enforcement of the attachment, trustee process or reach and apply judgment. Surprisingly, and I believe tellingly, the discussion of post-judgment remedies which do not involve recovery based on pre-judgment security, is relatively short and reflects the fact that the creditor is in a difficult position. The reasons should be apparent. An unsecured creditor generally has little leverage. When dealing with an uncooperative debtor, an unsecured and ill-informed creditor has its work cut out for it, and its investment of time and money assume more characteristics of gambling and fewer characteristics of debt collection. This does not mean that all hope is lost. It simply means that the pot of gold at the end of the litigation rainbow is mere uncertain.

 

For the purposes of this discussion, we will assume that a final non-appealable judgment has been entered in the creditor’s favor. We will consider first the enforcement of the creditor's prejudgment security and will then turn to discuss what rights the creditor may have to locate and collect against other property belonging to the debtor.

 

ENFORCEMENT OF JUDGMENTS

Execution

Enforcement of a judgment in all instances is effected by obtaining a writ of execution. Such a writ is simply described as an “execution” and it commands the sheriff to seize and sell defendants property. An execution must be obtained from the court within one year of the entry of the judgment. [27] The execution sets forth the amount to be recovered from the debtor and includes interest until the date of issuance of the writ of execution. An award of costs also carries interest, although an award of attorneys fees does not. [28] Interest also accrues from the issuance of the execution until it is satisfied. Once execution has been calculated and issued by the clerk of the court, it is to be served by the sheriff, constable or other appropriate officer (herein sheriff) and may be directed to the seizure of personal property or seizure of real estate. Such seizure is described as a levy upon the assets of the debtor.

 

Execution On Personal Property

To effect a levy on personal property, the sheriff must take possession of the property or place it under his control. The property levied on may be sold after advertisement, generally within 30 days of the seizure. Therefore, it is necessary to give the sheriff written instructions describing the location and types of property to be levied upon and sold. If the creditor does not give specific instructions, it is improbable that the sheriff will seize any property and will treat the execution as a demand for payment. [29]

Upon seizure of the personal property, notice of the time and place of the sale should be published in a newspaper either in the town where the debtor resides or in the county. Notice must be given to the debtor. The sale may be adjourned for seven days and for subsequent seven day periods by public declaration. A sale must be held unless the levy is suspended. Unlike levies upon real property, a levy on personal property may be suspended only if the property to be sold is subject to prior attachment or seizure. If no sale is held or the levy is not properly suspended, the lien created by the levy of execution is dissolved. With the exception of the need to provide a definite description of the property to be executed on, all of the foregoing is equally applicable whether the creditor has secured a pre-judgment attachment or not. The difference is not procedural but practical.

 

Once judgment is entered for the creditor who is secured by a personal property attachment, execution and levy are relatively easy matters. Since a personal property attachment typically is perfected by taking the property into possession, [30] direction to the sheriff is straightforward. The attachment lien continues for thirty days after final judgment. Upon levy within that time, the priority of the attachment will continue and will permit the timely sale of the property. The perfection of a real estate attachment by execution and levy is not as direct.

 

Execution on Real Property

Where the creditor has obtained a pre-judgment attachment of real property, the creditor can retain its priority only if it follows specific steps. After receipt of the execution, it is imperative that the execution, together with the property description and the payment of the correct fees be forwarded to the sheriff for each county in which the attached property is located. It is also necessary to request the sheriff to “levy and sell” or “levy and suspend.” The levy must be made within thirty days of the date of judgment. For the purposes of real estate security, a levy is the taking of real estate by the sheriff. A taking is effected by any symbolic act by which the sheriff declares control of the property. It has been found that simply writing a memorandum to the file that the sheriff took the land in execution is adequate. See Hall v. Crocker, 44 Mass 245 (1841). Within 40 days after the date upon which the execution was issued, the sheriff must record a copy of the execution and his memorandum of taking in the appropriate Registry of Deeds. [31]   The creditor, through the sheriff, must then proceed to either sell the property or suspend the levy. if sale is desired, notice must be given the debtor at least 30 days in advance and must be posted in the town where the property is located and the two adjoining towns. In addition, notice must be published once in each of three succeeding weeks. The sale is by public auction and the proceeds are disbursed to pay the expense of the sale and to satisfy the execution. Any excess is sent to the debtor.

 

Tactical difficulties surrounding the creditor's bid must be considered before the sale. The debtor has the right to redeem the property from sale for one year after the sale. This would imply that the creditor should bid the full amount of the execution so that the debtor would have to pay the full amount to redeem. If, however, a prior mortgagee should foreclose after the execution sale, the creditor's interest in the property will be lost. But because the full amount of the execution was bid, the debtor's obligation to the creditor has been marked satisfied in full. The creditor is left with nothing. On the other hand, if only a nominal value is bid, the debtor can file bankruptcy and his trustee may then redeem for the amount of the nominal bid. Bidding at such a sale requires a careful assessment of future possibilities. Although sale is a possible alternative, where there are precedent mortgages or attachments such a course may not be practical. Moreover, given the depressed real estate values in today's market a sale may not be advisable. What then can an attaching creditor do to continue the priority of its lien without causing the property to be sold.

 

The alternative is to direct that the levy be suspended. Suspension is a procedure which was not specifically authorized by statute until 1979.  Under M.G.L. C. 236 531, it is now provided that the sheriff may suspend the levy “by reason of a prior attachment or seizure of the same land, or on the written request of the creditor.” (emphasis added). [32]   Thus, where the creditor wishes to preserve its attachment priority without forcing a sale, either because of prior encumbrances, because the property is held as tenants by the entirety, or for other practical reasons, the creditor must request the sheriff to suspend the levy in writing. Notice of the execution and suspension of the levy should then be recorded within the 40 days allowed. Such action will continue the relative priority of the creditor’s attachment for six years from the date of recording of the execution and suspension. This six year period may be extended by recording a written request that the Registrar of Deeds bring forward the execution. [33]   Such request must be made within the original or subsequent six year p