Can you assist me in applying for a Writ of Attachment?
Yes. Every situation is different and it is important to explore the pro's and con's of applying for a Writ of Attachment (W/A). If it makes sense, we can do it. Gives us a call.
Can you assist me in defending against a Writ of Attachment?
Yes. As indicated below, not every debtor's assets can be subjected to a W/A.
What is a Writ of Attachment?
Attachment is a pre-judgment remedy that allows a creditor to assert a lien against a commercial debtor's assets before the creditor's claim is reduced to a judgment. When the attachment lien W/A is allowed by the court, the attached assets will be taken into custody by the sheriff or marshal. What "being taken into custody" means varies depending on the asset. Generally, after the levying of a W/A, the debt is secured unless a debtor files for bankruptcy within 90 days of the levying of the W/A. Obviously, a W/A is only effective if the debtor has "attachable assets." Therefore, it is advisable to locate attachable assets prior to the commencement of attachment procedures. While some assets of individuals are exempt from a W/A, corporations and other business entities have no such exemptions.
What are the pro's and con's of the Writ of Attachment?
On the plus side, attachment proceedings can effect a debtor's thinking on whether or not to satisfy or compromise a debt sooner, rather than later. An W/A ties up assets that can later be used to satisfy a judgment. This can prevent fraudulent conveyances of assets during the pendency of a drawn out litigation. On the other hand, attachment proceedings increase attorney fees and costs; a W/A may be subordinate to other preexisting liens or federal tax liens; attachment proceedings may cause a debtor to more vigorously prepare a defense because of the more immediate threat of losing control of assets; an W/A on a secured debt (e.g., a debt secured by a deed of trust) may forfeit the collateral as a result of California "one-action" rule; an unsuccessful plaintiff in the main action on the debt may be opened up to liability for a wrongful attachment; and a judgment creditor who seeks a W/A may waive alternate tort claims.
Can I obtain a Writ of Attachment in any litigation?
No. California, allows the issuance of an W/A if the claim sued upon meets the following requirements: (1) A claim for money . . . based upon a contract, express or implied";
(2) Of a "fixed or readily ascertainable amount not less than $500"; (3) That is either unsecured or secured by personal property, not real property (including fixtures); and (4) That is a commercial claim. These requirement do not apply to proceedings against non-residents and there are additional statutory exceptions available.
How do I obtain a Writ of Attachment?
After determining that a W/A would be beneficial and legally allowable, the creditor must follow strict statutory procedures in making application to the court. Ordinarily an application is made, followed by a hearing after notice motion. Plaintiff may apply for a temporary restraining order at the same time the application is filed in order to maintain the status quo pending the hearing. If the court determine that the claim is one upon which an W/A may issue, there is a probable validity that the applicant will prevail in its claim, and that the W/A is not sought for an improper purpose, the court will probably grant the application. An applying party will be required to post a bond or undertaking. In extreme circumstances, demonstrating "great or irreparable injury," the court in its discretion can issue a W/A Ex Parte.