A Three-Judge Court has been convened pursuant to 28 U.S.C. § 2281 and 2284 to consider the plaintiff's challenge to the constitutional validity of the New Hampshire statute. Since the Judges designated to comprise this Three-Judge Court recently decided the same issue with respect to the Maine statute authorizing the prejudgment attachment of real estate, counsel have agreed to waive oral argument and submit the case for determination on the basis of a written stipulation of facts and legal briefs. See Gunter v. Merchants Warren National Bank, Civil Action No. 13-117, decided June 25, 1973, 360 F. Supp. 1085 and its companion case, Lake Arrowhead Estates, Inc. and Leisure Living Communities, Inc. v. Cumming, et al., Civil Action No. 14-20, which are attached hereto as an Appendix. These cases contain a more detailed exposition of the case law and legal reasoning on this constitutional issue.

Because the Bankruptcy Judge further concluded that the failure of an insolvent corporation to vacate or discharge a voidable attachment lien within 30 days after it took effect did not constitute an act of bankruptcy, he dismissed the Creditors' Petition. In so ruling, the Bankruptcy Judge recognized that retrospective effect was not to be given to Gunter v. Merchants, etc., National Bank, 360 F. Supp. 1085 (D.Me. 1973), in which a three-judge panel of this Court, relying on principles declared by the Supreme Court in Fuentes, held on June 25, 1973 that the provisions of Chapter 507 of Title 14 M.R.S.A., 14 M.R.S.A. § 4451 et seq., and Rule 4A of the Maine Rules of Civil Procedure, insofar as they permitted the prejudgment attachment of real estate without prior notice and hearing, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. He reasoned, however, that, at least in the special context of bankruptcy proceedings, the Gunter mandate that its judgment be accorded purely prospective application should not be interpreted to render a post- Fuentes attachment, obtained without prior notice and hearing, impervious to constitutional attack by application of the Due Process principles announced in Fuentes.

Numerous creditors' remedies were subsequently invalidated. See, e. g., Hall v. Garson, 468 F.2d 845 (5th Cir. 1972); Barber v. Rader, 350 F. Supp. 183 (S.D.Fla. 1972) (3 Judge Court); MacQueen v. Lambert, 348 F. Supp. 1334 (M.D.Fla. 1972) (landlord summary remedies); Mason v. Garris, 360 F. Supp. 420 (N.D.Ga. 1973) (3 Judge Court); Straley v. Gassaway Motor Co., Inc., 359 F. Supp. 902 (S.D.W.Va. 1973) (garagemen's lien remedies); Bay State Harness Horse Racing and Breeding Ass'n., Inc. v. PPG Industries, Inc., 365 F. Supp. 1299 (D.Mass. 1973) (3 Judge Court); Gunter v. Merchants Warren National Bank, 360 F. Supp. 1085 (D.Me. 1973) (3 Judge Court) (prejudgment attachment statutes). Despite the pronouncements in Sniadach and Fuentes, two courts have upheld mechanics' lien laws similar to those attacked sub judice.

On June 25, 1973, a three-Judge Federal District Court declared that portion of Rule 4A violated established principles of due process and was therefore unconstitutional. Gunter v. Merchants Warren National Bank et al., 360 F. Supp. 1085 (D.Me. 1973). In response to Gunter, this Court amended Rule 4A, effective August 1, 1973, to include the attachment of real estate within the prior notice and hearing requirement.

Indeed, most state and federal courts which have been called upon to strike down specific state statutory schemes under Fuentes specify that their own holding of invalidity is prospective only. See, e. g., Bay State Harness Horse R. B. Ass'n v. PPG Industries, Inc., 365 F. Supp. 1299, 1307 (D.Mass. 1973) (three-judge court); Trapper Brown Construction Co. v. Electromech, Inc., 358 F. Supp. 105, 108 (D.N.H. 1973) (three-judge court); Gunter v. Merchants Warren National Bank, 360 F. Supp. 1085, 1091 (D.Me. 1973) (three-judge court); Hampton National Bank v. Desjardins, 114 N.H. 68, 314 A.2d 654, 658 (1974). We here refer to the date of the Fuentes decision, June 12, 1972, and not, as the dissent supposes, to the date of the Sniadach decision, June 9, 1969.

We note, additionally, that this facet of the Mississippi scheme may be subject to attack on grounds of the due process "minimum contacts" requirements espoused in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). In Gunter v. Merchants Warren National Bank, 360 F. Supp. 1085 (D.Me. 1973) (three-judge court), striking down the Maine attachment procedure of real property in civil actions, District Judge Gignoux made an excellent articulation: A restriction on the power of a real estate owner to alienate his property is such a deprivation.

The Court recognizes that the constitutionality of nonpossessory attachment procedures, such as those presented by Vt.R.Civ.P. 4.1, is a much discussed and unsettled issue. See Terranova, supra, 396 F. Supp. at 1407; compare United States General, Inc. v. Arndt, 417 F. Supp. 1300 (E.D.Wis. 1976) (three-judge court); Hutchison v. Bank, 392 F. Supp. 888, 894 (M.D.N.C. 1975) (three-judge court); Bay State Harness Horse Racing and Breeding Association, Inc. v. PPG Industries, Inc., 365 F. Supp. 1299 (D.Mass. 1973) (three-judge court); Gunter v. Merchants Warren National Bank, 360 F. Supp. 1085 (D.Me. 1973) (three-judge court); Clement v. Four North State Street Corp., 360 F. Supp. 933 (D.N.H. 1973) (three-judge court); with Hansen v. Weyerhaeuser Co., 526 F.2d 505 (9th Cir. 1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1501, 47 L.Ed.2d 758 (1976); In re Thomas A. Cary, Inc., 412 F. Supp. 667 (E.D.Va. 1976); The Oronoka, 393 F. Supp. 1311 (D.Me. 1975) (Gignoux, J., questioning Gunter, supra); Brook Hollow Associates v. J.E. Greene, Inc., 389 F. Supp. 1322 (D.Conn. 1975); and Central Security National Bank v. Royal Homes, Inc., 371 F. Supp. 476 (E.D.Mich. 1974).

See Swarb v. Lennox, 405 U.S. 191, 200, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972); Bryant v. Jefferson Federal Savings Loan Association, 166 U.S.App.D.C. 178, 509 F.2d 511, 515-16 (D.C. Cir. 1974). See also Gunter v. Merchants Warren National Bank, 360 F. Supp. 1085 (D.Me. 1973) (three-judge court) (invalidating prejudgment attachment statute); Kramer v. Inhabitants of the Town of Linneus, 144 Me. 239, 67 A.2d 536 (1949) (invalidating tax lien foreclosure statute as applied to nonresident); Henry and Cole, Are Maine's Real Property Mortgage Foreclosure Statutes Constitutional?, 8 Me.Bar Bull., May 1974, at 1. As a result of the ruling in this case, it will be for FmHA to determine whether to institute new foreclosure proceedings or to make other attempts to enforce the loans made to the Rickers; that agency is the appropriate forum for determination of the validity of the loans, at least in the first instance. Judicial consideration at this time would be premature.

Section 1-440.7(a) provides that attachment may be issued before personal service; if so, personal service must be had within thirty days of the issuance of the order of attachment. This possibility of attachment before service bothered a three-judge court in the First Circuit faced with a prejudgment attachment statute since it allows attachment for a substantial time without the debtor's knowledge and, thus to an extent, diminishes the effect of a provision permitting a motion for dissolution. Gunter v. Merchant's Warren Nat'l Bk., 360 F. Supp. 1085, 1088 (1st Cir. 1973). In this case, the plaintiff was served, apparently as required by court rule pursuant to N.C.G.S. § 1-440.

With its decisions in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the Supreme Court of the United States has inspired a massive judicial assault on summary creditors' remedies. Among the casualties have been landlords' lien remedies, Hall v. Garson, 468 F.2d 845 (5th Cir. 1972); MacQueen v. Lambert, 348 F. Supp. 1334 (M.D. Fla. 1972); Gross v. Fox, 349 F. Supp. 1164 (E.D. Pa. 1972), creditors' self-help repossession remedies, Adams v. Egley, 338 F. Supp. 614 (S.D. Cal. 1972), garagemen's lien remedies, Straley v. Gassaway Motor Co., Inc., 359 F. Supp. 902 (U.S.D.C.S.W.Va. 1973), Mason v. Garris, 360 F. Supp. 420 (U.S.D.C.N.Ga. 1973), prejudgment real property attachment remedies, Lake Arrowhead Estates, Inc. v. Cumming, 360 F. Supp. 1085 (U.S.D.C. Me. 1973), Idaho First National Bank v. Rogers, 41 U.S.L.W. 2492 (Idaho Dist. Ct., First Jud.Dist., Feb. 21, 1973), and remedies available to municipal and privately-owned utility companies by which they can terminate service without prior hearing, Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir. 1972); Lamb v. Hamblin, 57 F.R.D. 58 (D. Minn. 1972). Rationale once deemed sufficient to justify these summary remedies have fallen to the superior interest of the individual in a fair and timely process of decisionmaking when the possession of his property is threatened.