What is a Writ of Attachment?
A writ of attachment is a court order that allows a law enforcement officer or other designated official to seize a defendant’s property. A judge issues the writ, then the law enforcement agency takes and maintains custody of the property under court supervision. A writ of attachment often serves as collateral for a contingent lien on property belonging to a defendant. If the plaintiff wins their case against the defendant, the court can issue a writ of execution. This enables the court to sell the property and ensure the defendant pays the plaintiff.
Issuing and serving a writ of attachment
When a defendant owes money to the plaintiff in a court case, the plaintiff may request a writ of attachment. Next, a judge issues an order for the writ. A clerk of the U.S. District or Bankruptcy Court usually issues the writ.
Serving the writ
The designated official that serves the writ is typically a U.S. Marshal under the supervision and order of the court. The official may also be a sheriff or another law enforcement officer. The seized property is held in custody and may be used to satisfy a judgment against a defendant.
Territorial limits of writs
Territories usually confine where the writ of attachment takes place. For example, it can be restricted to execution only in the state that holds the district court. This restriction remains unless the writ is extended by a federal statute, court order or rule.
Steps for service of a writ
Service of a writ of attachment should follow these guidelines.
- The law enforcement officer distributes the writ per the specific instructions contained in it. The officer must also follow any state regulations that govern the procedures for the writ of attachment.
- The requesting party may have to provide an indemnity bond and deposit that would cover estimated out-of-pocket expenses for the law enforcement officer.
- A decision should be made whether the law enforcement officer will maintain the attached property’s custody or if a substitute custodian will be named. The court can name a substitute custodian in the writ, or the officer and substitute custodian may form a written agreement.
- The party should also accompany the officer upon execution of the writ in case questions arise.
- The person who serves the writ must describe the actions they took to serve it. A written record on the writ provides proof of the service process.
Essentially, documenting each step of the service procedure helps eliminate legal loopholes. Guidelines may vary depending on whether the agent is serving a state or federal writ of attachment. Make sure you understand and comply with any legal requirements.
Custody of the property
Usually, a law enforcement agency maintains custody of attached properties under court supervision. The requesting party can be a substitute custodian if named through a written agreement with the law enforcement officer or by court order.
If named as a substitute custodian, the party is responsible for covering any losses or damages to the asset while it is in their custody. The custodian must have evidence of insurance and capability of any storage fee payments. The substitute custodian must also sign a statement that the law enforcement agency is not liable for loss or damage to the property.
Writ of attachment vs. writ of execution
With a writ of attachment, a court order mandates that legal custody of a person’s property changes. The property can be cash, real estate, goods, or financial earnings. A creditor or another claimant to which money is due then has legal rights to those assets.
The assets or goods become collateral for the financial debt the person owes. This prevents the debtor from selling certain assets and using the money before the case is finalized. If the debt is not paid, then the creditor has a guarantee of receiving the money the debtor owes them. Once the court issues a judgment against the debtor, the court may issue a writ of execution.
With a writ of execution, a court officer can sell the defendant’s property by court order. This sale is an attempt to satisfy a judgment against the accused. The sale of the property is called a sheriff’s sale. The writ of execution is used when a defendant must make a payment to the plaintiff, but will not do so willingly.
Limits to a writ of attachment or writ of execution
Depending on the circumstances, some funds may be exempt even with a writ of execution. These off-limits assets include unemployment income, IRA finances, and Social Security income.
Understanding a prejudgment writ of attachment
Usually, creditors will try to predict a borrower’s ability to repay a loan or credit offer. Income, assets, and property are considered to determine the likelihood of the capacity to pay. A traditional lawsuit may help lenders collection past-due debts. Filing a lawsuit is appropriate in most cases where a debtor cannot pay but may take 2-3 years to resolve.
However, sometimes there are fact-specific cases that require a quicker response. A few examples are if a borrower is trying to transfer, sell or divest assets. If a creditor feels there is a risk of never acquiring proper payment, and time is a critical factor, then the lender may pursue a prejudgment writ of attachment. The writ requires the debtor to sell certain assets and pay the outstanding debt.
Allegations of inability to pay are not usually enough for a prejudgment writ of attachment. Instead, the plaintiff must provide concrete proof that the defendant cannot pay. Sometimes this is determined in an evidentiary hearing. When evidence shows that a defendant could sell assets to pay for the debt, a prejudgment writ of attachment settles the issue much faster than a traditional lawsuit.
Defining a writ of body attachment
Sometimes a writ of body attachment can be filed as well. This type is when a court directs a law enforcement officer to bring in someone who is in civil contempt of court. This kind of attachment is also called a warrant for civil arrest or an order of commitment for civil contempt.
Writs of body attachment in jail
This can refer to two different things. One is a writ of habeas corpus, and the other is a writ of hold on a person already in custody.
A writ of habeas corpus
Habeas corpus means “to produce the body.” In other words, a prison warden or institution must bring someone that is already in custody before a court. When a defendant wants to challenge the legality of their imprisonment, they may apply for this. This writ may help a defendant against unlawful imprisonment or end inappropriate jail conditions.
A writ of hold
This is used when a person in jail is supposed to go to a different area or jurisdiction. In this case, a lawyer requests a writ of hold so that the person must stay in the same jail and cannot be transported. Usually, only a law enforcement agency, court or parole board or officer may place a writ of hold on someone who is in custody.
Filing a writ of attachment
States have different rules for issuing a writ of attachment. Therefore, the creditor must follow whatever guidelines are necessary for that state. The court then makes a preliminary determination based on the merits of the case. Under most circumstances, the writ of attachment is created through an application and hearing.
Filing a writ of attachment and other kinds of court orders is possible, depending on the type of legal case involved. You should thoroughly understand documents that require compliance before moving forward legally.