Updated on December 19, 2023
Attachment is defined as a remedy where a plaintiff can seize defendant’s property before judgment to secure any recovery the plaintiff may recover in a pending lawsuit. It can only be used where there is a lawsuit on file claiming that money is owed.
Writ of Attachment is a powerful tool. It allows a plaintiff, who is suing for a monetary claim, to seize the defendant’s property before the court has given a final judgment. The primary purpose of this remedy is to secure the plaintiff’s potential recovery in the ongoing lawsuit.
Let’s break this down further for clarity. Imagine you, as a real estate developer, have entered into a contract with a contractor. However, the contractor breaches the contract, causing you significant financial loss. You decide to file a lawsuit against the contractor for the money owed. In such a scenario, a Writ of Attachment could be a strategic move.
By obtaining a Writ of Attachment, you can essentially freeze or take possession of the contractor’s property, such as bank accounts, real estate, or other valuable assets, at the onset of the lawsuit. This action ensures that if you win the case, the contractor will have sufficient assets to pay the judgment.
However, it’s important to note that obtaining a Writ of Attachment is not automatic. You must convincingly demonstrate to the court that your claim is probably valid and that there’s a significant risk the defendant might dispose of their assets before judgment. This typically requires a hearing where evidence is presented.
Moreover, California law requires plaintiffs seeking an attachment to post a bond. This bond protects the defendant against wrongful attachment, compensating them for any damages if the court later finds the attachment was improper.
In real estate disputes, where large sums of money and valuable property are often at stake, the Writ of Attachment becomes a critical tool. It provides a layer of financial security, ensuring that the defendant cannot simply liquidate or hide assets while the lawsuit is pending.
In order to obtain a writ of attachment, a plaintiff must satisfy all of the following requirements:
Because attachment is a harsh remedy, the creditor has the burden of proving that the claim on which an attachment may be based is probably valid. However, when used correctly, an attachment can be a very powerful tool for a creditor to force an early resolution at the outset of litigation.
The real estate attorneys at Schorr Law have experience with writ of attachments. To see if you qualify for a free 30-minute consultation contact us by phone at (310) 954-1877 or by email at [email protected]. You can also fill out the Contact Form on the contact page.