Section 4.3 Constitutionality

• Library: Creditors' Remedies (2009 Ed. + 2014 Supp)

C. (§4.3) Constitutionality

There is no constitutional right to an attachment. State ex rel. Froidl v. Tillman, 662 S.W.2d 907 (Mo. App. E.D. 1983). But there may be constitutional due process objections to prejudgment seizures without notice and opportunity for a hearing.

The constitutional problem first arose in 1967 when the United States Supreme Court decided Sniadach v. Family Financial Corp. of Bay View, 395 U.S. 337 (1969), and was further developed by Fuentes v. Shevin, 407 U.S. 67 (1972). These cases enunciated the doctrine that prejudgment seizures, absent "extraordinary situations," violate due process under the Fourteenth Amendment to the Constitution unless the owner is given a meaningful opportunity for and notice of a pre-seizure hearing. These cases left the constitutionality of attachments very much in doubt.

The Supreme Court of Missouri considered the constitutional questions of prejudgment seizures in the context of a replevin case in 1973. State ex rel. Williams v. Berry, 492 S.W.2d 731 (Mo. banc 1973). Based on Fuentes, 407 U.S. 67, the Court held that the Missouri replevin...