Attachments (Detinue)

Question 1

What will VA allow you to do before you have a judgment?

Answer 1

Allows attachment, which is a prejudgment remedy by which a plaintiff may obtain a lien on D’s property before judgment to satisfy an anticipated money jdugment

Question 2

How may a prejudgment lien be obtained?

Answer 2

By a writ of attachment (also called detinue), which may be issued as an ancillary proceeding in ocnnection with a pending suit
* Plaintiff must post bond

Question 3

What are the grounds for attachment?

Answer 3

(1) D is nonresident of VA or is a foreign corporation
(2) D has made or is about to make a fraudulent conveyance
(3) D has removed or is about to remove his property from the state
(4) D has concealed or is about to conceal his property with the intent to hinder or delay creditors
(5) D has left VA or is about to with intent to change domicile

Question 4

When does the lien attach for tangible personal property in possession of the defendant?

Answer 4

When the sheriff makes a proper levy

Question 5

How does P obtain an attachment lien for tangible personal property in possession of a third party?

Answer 5

The third party must be named as a co-defendant
* Lien arises when the third party is served a copy of the attachment

Question 6

When does the attachment lien arise for real property?

Answer 6

When: (1) a copy of the attachment is served on the person in possession and (2) the officer’s return (doc prepared by sheriff in response to court’s writ of attachment) describes the property

Question 7

What effect does final judgment have on the lien?

Answer 7

It takes the unconsumated lien and makes the lien consummate
* This gives the creditor priority in the property against third parties back to time of attachment–not the later point of judgment when P prevailed

Question 8

How does a lien become effective against a BFP?

Answer 8

Creditor must file a memorandum of lis pendens prior to purchase by BFP
* Document placed in the real estate recording office indicating that real property is subject to litigation

Question 9

What must P who wants a writ of attachment do to comport with due process?

Answer 9

(1) File with a judge, alleging specific facts supporting grounds for attachment
(2) Judge will then have an ex parte hearing
(3) D has 10 days to challenge the lien and can quash the lien if:
* The lien is invalid (i.e., awarded on improper grounds–thinking D is ‘dishonest’)
* The lien is unsupported (i.e., proper ground alleged, but in fact ground does not exist)
* P unlikely to prevail in the underlying lawsuit