Prejudgment Attachment

Question 1

Prejudgment Attachment in General

Answer 1

Attachment can be used to preserve a debtor’s property and establish priority over other creditors

Functions to create a provisional lien on debtor’s property

Question 2

Grounds for Issuance of Attachment

Answer 2

FUL of CRAS

Defendant is:

(1) FOREIGN corporation or non resident
(2) Person whose residence and whereabouts are UNKNOWN
(3) LEAVING of has left IN with intent to defraud creditors
(4) CONCEALED so that summons cannot be served
(5) REMOVING or about to remove property from IN that creditor seeks
(6) ABOUT to sell or dispose of property creditor seeks with intent to cheat, hinder, or delay creditors
(7) SOLD or disposed of creditor seeks with intent to cheat, hinder, or delay creditors

Question 3

Procedure for Prejudgment Attachment

Answer 3

(1) File Action
(2) Bond
(3) Order of Attachment
(4) Levy
(5) Custody/Notice
(6) Return
(7) Care of Property

Question 4

Procedure for Prejudgment Attachment: File Action

Answer 4

Action for attachment may be filed WITH ACTION FOR JUDGMENT or anytime thereafter

Must be supported by AFFIDAVIT

Question 5

Procedure for Prejudgment Attachment: Bond

Answer 5

BEFORE order of attachment issued, creditor must execute bond in sufficient amount payable to debtor in the event that attachment is found to be WRONGFUL and OPPRESSIVE

Question 6

Procedure for Prejudgment Attachment: Order of Attachment

Answer 6

Issued to sheriff of county where property is located

Requires sheriff to seize debtor’s non-exempt property

Question 7

Procedure for Prejudgment Attachment: Levy

Answer 7

Act of seizing the property by the sheriff in the name of the creditor

Sheriff attaches it and makes an inventory and appraisal

Personal property attached first, then real property

Question 8

Procedure for Prejudgment Attachment: Custody/Notice

Answer 8

PERSONAL PROPERTY: must be taken into sheriff’s actual custody

REAL PROPERTY: Sheriff must file notice of lis pendens with clerk of court in county where property is located

Question 9

Procedure for Prejudgment Attachment: Return

Answer 9

Sheriff must return order of attachment to court once it has been executed

Question 10

Procedure for Prejudgment Attachment: Care of Property

Answer 10

Sheriff must use ORDINARY CARE to keep property safe and maintain its value

Debtor may keep custody of property by providing a delivery bond to the sheriff

Question 11

Provisional Lien: Establishment

Answer 11

When sheriff receives order of attachment, creditor has a right to a lien on debtor’s property

For lien to attach, sheriff must LEVY on the property

Question 12

Provisional Lien: Priority

Answer 12

Subordinate to PRIOR rights attached to particular piece of property

Takes priority over rights attached AFTER the levy

Question 13

Provisional Lien: Duration

Answer 13

Lien remains on particular piece of property until final determination of case

Question 14

Sale of Attached Property After Judgment for Creditor

Answer 14

Attached property may be sold on execution

Any surplus paid to debtor

Question 15

Discharging an Attachment

Answer 15

On debtor’s motion court will discharge attachment if:

(1) INVALID on its face;
(2) Order was issued INCORRECTLY; or
(3) Issued WITHOUT SUFFICIENT GROUNDS

Question 16

Wrongful Attachment

Answer 16

If creditor loses case on the merits or if attachment discharged, debtor is entitled to action on creditor’s bond if it appears the proceedings were WRONGFUL AND OPPRESSIVE