Attachment Before Judgment and the Grounds It Requires

Attachment is the oldest of the provisional remedies and the least uniform. It allows a plaintiff to freeze or seize property before anyone has decided the case, so that a judgment, if one comes, is not a piece of paper. Because it takes property from someone who has not yet lost, every state has surrounded it with conditions, and those conditions are the whole of the subject. There is no general right to attach; there is only whatever the governing statute permits.

What the remedy actually does

The mechanics vary by the kind of property. Real estate is normally attached by recording, which leaves the owner in possession but makes a clean sale impossible. Tangible goods are taken into the custody of a sheriff or levying officer. Bank balances and debts owed to the defendant are reached by service on the third party holding them, which turns that party into a garnishee with obligations of its own.

What every version has in common is priority. An attachment lien fixes the plaintiff's position against later creditors and later purchasers, so a plaintiff who attaches early is ahead of one who waits for judgment. That advantage is the reason the remedy is sought, and it is also the reason legislatures have made it hard to obtain.

Timing shapes the value of the remedy as much as the grounds do. Property that has already moved cannot be attached, and a plaintiff that waits until the defendant's difficulties are public is usually competing with other creditors for the same assets. Against that, an attachment obtained shortly before an insolvency may be undone as a preference, so the window in which the remedy is both available and durable is narrower than it appears.

Grounds that differ from state to state

Connecticut takes the broadest approach. Its statute makes a prejudgment remedy available in any civil action on a showing of probable cause that a judgment in the amount sought will be rendered in the plaintiff's favor, taking account of defenses, counterclaims and set-offs. There is no requirement that the defendant have done anything wrong with its assets. The trade-off is a mandatory hearing, which the same chapter supplies.

California goes the other way and restricts the class of claim. An attachment may be issued only on a claim for money based on contract, express or implied, where the total is a fixed or readily ascertainable amount of at least five hundred dollars. Claims secured by real property are excluded, and where the defendant is a natural person the claim must arise from that person's trade, business or profession. A consumer debt cannot be attached at all.

New York, Florida, North Carolina and Minnesota use conduct-based lists. New York permits attachment where the defendant is a nondomiciliary, cannot be personally served despite diligent efforts, or has disposed of or secreted property with intent to defraud creditors, among other grounds. Florida enumerates twelve situations turning on removal, absconding, concealment or fraudulent disposal. Minnesota requires intent to delay or defraud in most of its grounds, and adds intentional fraud giving rise to the claim.

The application and what it must contain

Every system requires a sworn application, and the contents are prescribed. California's statute lists the required statements: that the attachment secures a claim on which attachment may issue, the amount to be secured, that it is not sought for another purpose, that the claim is not discharged in bankruptcy or subject to a bankruptcy stay, and a description of the property to be attached. Minnesota requires an affidavit setting out the basis and amount of the claim and the facts constituting the statutory ground.

Amount matters as much as entitlement. California reduces the sum to be secured by unsatisfied judgments in the defendant's favor, by attachable cross-claims, and by the value of security the plaintiff already holds. An applicant that asks for the face value of the claim without those deductions invites a reduction and, in some courts, a refusal. The figure also drives the security the plaintiff must post, dealt with in the bond and the damages a wrongful writ produces.

Description of the property is a recurring source of failure. Where the defendant is a natural person, California requires the description to be adequate to let that person identify what is sought, which rules out a general reference to all assets. Where a bank account is targeted, the institution needs enough detail to identify it. Applications that describe the property loosely produce writs that levying officers decline to execute, which wastes the surprise the remedy depends on.

Reachable property, and what a federal court does

Statutes define reachable property either affirmatively or by exclusion. New York provides that any debt or property against which a money judgment could be enforced is subject to attachment, importing the post-judgment definitions wholesale. California takes the opposite route and lists what is exempt, including all property exempt from enforcement of a money judgment, property necessary for the support of a natural person defendant or that person's family, and earnings. What falls outside the writ is examined in the categories a writ cannot reach.

Federal courts do not have their own attachment regime for ordinary civil actions. Rule 64 adopts the seizure remedies of the state where the court is located, subject to any federal statute that applies, so a plaintiff in federal court asks for the state writ and satisfies the state conditions. The consequences of that borrowing, and the narrow federal alternatives, are set out in the account of asset freezes in federal litigation. Whatever the source of the remedy, the defendant's right to be heard is a matter of federal constitutional law, described in the hearing owed before property is frozen.