What Is a Writ of Attachment?
A writ of attachment is a form of prejudgment process in which a court orders the attachment or seizure of property specifically described in the writ. The property is seized and maintained in the custody of a designated official, who is usually a U.S. Marshal or law enforcement officer, under court supervision.
A writ of attachment demands the creditor's property prior to the outcome of a trial or judgement, whereas a writ of execution directs law enforcement to begin the transfer of property as the result of the conclusion of a legal judgment.
- A writ of attachment is a court order demanding a debtor's property be seized prior to a judgement in the creditor's favor.
- A writ of attachment may be used in bankruptcy cases and in eviction cases (when a tenant will not leave on their own and will not pay rent).
- In the event that the judge rules in favor of the debtor, the property will be returned unto them.
- If the creditor instead prevails, the seized property may be sold at auction to satisfy the unpaid debts.
Understanding Writs of Attachment
A writ of attachment is generally used to freeze assets of a defendant pending the outcome of a legal action. That is, the plaintiff obtains a contingent lien on the defendant's assets that can be exercised should the plaintiff be successful in obtaining a judgment against the defendant. There are a number of different types of attachment, including garnishment, replevin and sequestration.
In debt collection outside of bankruptcy action, a writ of attachment from the civil court system is one tool available to creditors. It 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. It also provides leverage to negotiate a settlement with the defendant earlier in the process.
Elements of a Writ of Attachment
Most jurisdictions at the state and federal level allow plaintiffs to obtain writs of attachment, although the agencies and procedures involved may differ. Typical courts require a 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
To 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 requires filing and serving a complaint for recovery of the debts owed to you or your business. After that, or simultaneous with these actions, you can initiate a proceeding to obtain a writ of attachment, usually requiring a hearing before the court.