Writ of Attachment

Writ of Attachment: Definition and Purpose

A writ of attachment is a court order that seizes or “attaches” a debtor’s specific property before a final judgment is entered. The property is held under court supervision—often by a law enforcement officer or marshal—to secure satisfaction of a potential future judgment. It is a prejudgment remedy meant to prevent a defendant from dissipating assets and to protect a creditor’s ability to collect if the creditor ultimately prevails.

Key distinctions
* Prejudgment vs. post-judgment: a writ of attachment acts before a final judgment. A writ of execution enforces a judgment after it is entered.
* Attachment creates a contingent lien on the defendant’s assets that becomes enforceable if the plaintiff wins.

Common Uses

• Debt collection outside bankruptcy proceedings.
• Bankruptcy and insolvency matters.
• Eviction cases where a tenant refuses to leave or pay rent and the landlord seeks to secure remedy.
• Any civil case where a plaintiff needs to preserve assets that could otherwise be hidden, transferred, or dissipated.

How It Works

1. Plaintiff files a civil lawsuit seeking monetary relief.
2. Plaintiff petitions the court for a writ of attachment (often by motion or separate proceeding).
3. The court assesses whether the legal standards for attachment are met; some jurisdictions allow ex parte emergency attachments.
4. If granted, specified property is seized or frozen and held in custody pending the lawsuit outcome.
5. If the plaintiff wins, the attached property may be sold (e.g., at auction) to satisfy the judgment. If the defendant prevails, the property is returned.

Types of Attachment and Related Remedies

• Garnishment: directs a third party (employer, bank) to surrender funds (wages, bank balances) to satisfy a debt.
• Replevin: a remedy to recover personal property wrongfully held by another person (focuses on possession).
• Sequestration: preserves property from interference or dissipation during litigation.
• Attachment (general): a judicial lien on the defendant’s property prior to judgment.

Typical Requirements

While rules vary by jurisdiction, courts commonly require that the plaintiff’s claim:
* Seeks a money judgment (often based on contract),
* Is for a fixed or readily ascertainable amount,
* Is unsecured or not fully secured,
* Often arises from commercial transactions (some courts limit attachments to commercial claims).

Courts also typically require the plaintiff to demonstrate a prima facie case, risk of asset dissipation, and sometimes irreparable harm or that the defendant is a nonresident or a flight risk.

Protections and Limitations

• Bond or Undertaking: Many courts require the plaintiff to post a security (bond) to cover potential damages to the defendant if the attachment is wrongful.
• Notice and Hearing: Some attachments require notice and a hearing; others permit temporary ex parte relief in emergencies, to be followed promptly by a hearing.
• Return of Property: If the defendant prevails, attached property is returned and the plaintiff’s bond may be forfeited if attachment was wrongful.
• Jurisdictional Variation: Procedures, allowable property, and standards differ by state and federal court rules.

Practical Considerations

• Strategic use: Attachment can give plaintiffs leverage for settlement by preserving assets early in litigation.
• Cost and risk: Posting a bond and the risk of liability if attachment is improper mean plaintiffs should weigh benefits versus costs.
• Legal counsel: Because rules and procedures vary and wrongful attachments can lead to damages, parties should consult an attorney experienced in the relevant jurisdiction.

Summary

A writ of attachment is a prejudgment legal tool to freeze or seize a defendant’s property to secure a potential future judgment. It helps prevent asset dissipation and can aid settlement, but it brings procedural requirements, usually a bond, and significant jurisdictional differences. If a plaintiff secures a judgment, attached assets may be sold to satisfy the debt; if not, the property must be returned.