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 described in the writ. The property is seized and held in the custody of an appointed official, such as 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 judgment, 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 judgment 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.
How a Writ of Attachment Works
A writ of attachment is generally used to freeze a defendant's assets pending the outcome of legal action. That is, the plaintiff—who is the party bringing the legal action against the defendant—obtains a contingent lien on the defendant's assets. The lien is a legal charge to take ownership of the defendant's property to satisfy a debt. The writ of attachment allows the lien to be exercised should the plaintiff successfully obtain a judgment against the defendant.
There are several different types of attachment.
- A garnishment is a court order directing a third party to seize assets, such as wages or money, from a person's paycheck or bank account to settle an unpaid debt.
- A writ of replevin is usually put in place to take property held by a person wrongfully, while sequestration preserves the property pending litigation.
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.
Requirements for 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 a readily ascertainable amount
- Unsecured or not fully secured
- 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.