What is a Writ of Attachment and How Can It Help You Get Money That is Owed to You?
A writ of attachment is a court order that is usually directed toward the county Sheriff or Constable to seize the property of a defendant in a money collection dispute. These writs are provisional or prejudgment remedies that are used before a potential judgment is obtained.
Who Can Get a Writ of Attachment?
Writs of attachment are usually only available to commercial creditors such as banks and other financial lenders or for lessors pursuant to an express or implied contract or lease agreement. Usually, the amount in controversy must be over a certain amount, generally over $500, and the claim must not be secured or is inadequately secured by an interest in real property. The dollar amount of the underlying claim must be readily ascertainable such as by being stated in the contract or is subject to calculation based on the contract’s terms.
Check with an attorney or your state’s laws as to who can obtain a writ of attachment and the requirements for requesting one.
What Does a Writ of Attachment Do?
As a commercial creditor or lessor, you would want to obtain a writ of attachment to create a lien on money or personal property to prevent the defendant from transferring, selling, concealing or encumbering the assets that can satisfy the judgment you are seeking. Its purpose is to provide security for you while you pursue a judgment or settlement. The writ brings the property within the court’s custody so that the defendant cannot abscond with the property
How Do I Get a Writ of Attachment?
Typically, you have to file a complaint against the defendant before applying for the writ.
Further, to get a writ of attachment from the court, the court must have jurisdiction over the defendant. Usually, the defendant resides within the state or committed some wrongful act (fraud) here or was doing business in the state. If the defendant only owns property in the state, the court can still assert its authority through in rem jurisdiction.
Once a connection is established, you can apply for a writ. The application describes the cause of action you have against the defendant such as breach of contract. You will probably have to submit documents such as the underlying contract to support your claim and the likelihood that you will prevail. Depending on your state, you may have to post a bond that protects the defendant in the event you lose on the merits or it turns out you were not entitled to the writ.
If the court agrees and issues the writ, it is directed to the Sheriff or Constable to serve on the defendant and to seize property that is equivalent in value to the amount stated on the writ. The defendant can challenge the writ or even post his or her own bond in lieu of seizure.
An order of attachment is not unlimited and will expire after time is allowed for the suit to go to court or for resolution of the dispute.