Writ of Attachment in Debt Collection
When it comes to collecting debts outside of a bankruptcy action, the civil court system provides a number of tools to creditors. One of which is the writ of attachment, a particularly effective mechanism that allows plaintiffs to place a legal claim on a defendant's assets early on in the judicial process, before a judgment is even entered.
This form of judicial lien provides a two-fold benefit as it protects the plaintiff's right -- and ability -- to collect on any future judgment and also provides leverage to negotiate a settlement with the defendant early in the process. However, as effective as this tool may be, there are limits on how and when it can be used. Below you'll find more information on using a writ of attachment in debt collection.
Writ of Attachment: Requirements
Most all jurisdictions at the state and federal level allow plaintiffs to obtain writs of attachment, although the agencies and procedures involved may differ. At the federal level, the U.S. Marshals Service is typically the agency used to seize and hold any property subject to a writ of attachment, comparable to the role played by a local sheriff at the state court level.
In order to obtain a writ of attachment, courts typically require that the underlying claim be:
- One for money based on a contract;
- Of a fixed amount or an amount that is readily ascertainable;
- Unsecured or not fully secured; and
- Of a commercial nature.
In addition, for a court to issue relief before a judgment is entered, it will also usually require a plaintiff to show:
- That it will likely suffer great or irreparable harm absent the relief sought; and
- That it will more likely than not be successful in obtaining a judgment.
What Can be Attached?
If these elements are met, then a court may issue a writ of attachment for any non-exempt property. For business defendants, any property that they hold which is located within the jurisdiction is usually subject to attachment. In other words, if you're suing a business, most all of its assets, including its bank accounts, are fair game.
However, there are greater restrictions when seeking to attach the property of individual defendants. The most common form of exempt property for individuals are their earnings. Besides earnings, federal courts allow plaintiffs to attach any other property in which the defendant has "possession, custody or control." Other jurisdictions have additional restrictions for individual defendants. For example, California law prohibits the attachment of any property "which is necessary for the support of a defendant ... or the family of such defendant."
How Do You Obtain a Writ of Attachment?
As with any form of judicial relief, you must first file a civil lawsuit before a court has any authority to take action on your behalf. This means that you'll need to file and serve a complaint for recovery of the debts owed to you or your business. After that point, or simultaneous with those actions, you can initiate a proceeding to obtain a writ of attachment, usually requiring a hearing before the court.
This hearing may either be based on a regular noticed motion or, where there is an immediate need for relief, on an ex parte application. The difference between the two is largely the amount of notice that must be provided to the defendant. Regardless of the process used, a plaintiff is required to file and serve several documents, such as:
- An application form;
- A notice including the hearing date, time and location;
- Supporting declarations and evidence; and
- Drafts of court orders and writs.
Once granted, a plaintiff can usually obtain several issued writs to place liens in different counties where a defendant may own property.
Finally, courts can also require a plaintiff to obtain an undertaking (bond) as extra insurance in the event that the attachment is later shown to have been wrongful. The amount of the bond is determined by the court, but may be based on what probable damages could arise due to a wrongful detachment.
Get Legal Help with Writs of Attachment
The process of collecting debts owed to you or your business can sometimes be a fast-moving and circuitous process. Utilizing an experienced attorney can help you avoid common pitfalls and put forth a more effective strategy to collect what you're owed. Learn more by reaching out to a collections attorney in your area today.