What is a Writ of Attachment?
In California law, there is a writ that can be filed before the beginning of a debt collection proceeding outside of a bankruptcy action. A writ is a legal document written by a judge or other body with administrative or judicial jurisdiction, such as a court.
When are the attachments filed?
A creditor may file a writ of attachment if four criteria are met. They may file it in cases involving:
- A debt which arises from his trade, business, or profession
- Is based on a real or implied contract, on a claim which
- Is worth $500 or more and
- It is not secured or is secured for a value that is less than the value of the claim.
The creditor bears the burden of proof when establishing that this measure is necessary. One type of creditor that often has to file writs of attachment is commercial landlords. When a commercial tenant breaches a lease, the landlord may file a writ of attachment before suing them for the unpaid amount.
How can the creditor prove that the writ is necessary?
Before the trial begins, a plaintiff interested in securing a writ must file a complaint. Only then may they apply for an attachment. Taking this course of action will occur in cases where the creditor believes it likely that the debtor will attempt to move assets out of the state of California, or otherwise make them impossible to collect before the trial ends. At the hearing, the judge will determine whether the plaintiff has a right to attach any property and what property may be attached. Writs of attachment typically are not granted in cases in which the plaintiff is not considered likely to prevail.
What can be attached?
Anything that can be included in a money judgment can be included in a writ of attachment. That includes money, chattel paper, deposit accounts, and even other money judgments. In cases where the debtor is a business, any property held by the company can be attached. That includes properties like the business's inventory and equipment. Some types of property that cannot be attached include property that is outside the state, earnings, and property that is necessary for the defendant's support. For more details on what property is exempt from judgments, see the Enforcement of Judgment Law, Ca Civ Pro § 487.020(a).
Issuing the order
The order the court will issue if the plaintiff's petition was successful is called a right to attach order. The plaintiff must then file an undertaking. The defendant then has the chance to object to the writ by motion. If the writ is found to be wrongful at any point, the plaintiff runs the risk of having to pay damages. However, if the defendant does not object or objects unsuccessfully, then the order goes into effect. The officer can then take the property mentioned in the writ into custody or subject it to a lien.
In some cases, a creditor can file a writ of attachment that secures some of the debtor's assets before the start of proceedings. When a creditor sues a debtor for unpaid money, it's crucial to ensure that the debtor is not using the trial to buy time to move assets out of the state. When that is likely, the creditor has the right to file a writ of attachment before the trial begins on an ex parte basis. That way, the property is already secured by the creditor if the trial is successful.
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