Business litigation attorneys have a variety of tools at their disposal for use in prosecuting business lawsuits. One of the most powerful tools that a plaintiff can use in forcing an early resolution of a lawsuit is a writ of attachment.
1. The Basics of a Writ of Attachment
A writ of attachment is a provisional remedy, meaning a temporary remedy that allows a party to protect its interests or rights in property, money or the status quo during the pendency of the litigation. Normally a party may not lien a property or freeze a bank account until that party has won the litigation and secured a judgment. A writ of attachment allows such a lien before the litigation has gone to trial.
2. Why Is A Writ of Attachment So Powerful?
A writ of attachment is so powerful because it allows a party to exert control over a defendant’s property or bank account at the outset of the litigation. The plaintiff does not get access to the property or the money, but the defendant is prevented from using, dissipating or transferring the property. In other words, although the writ of attachment is not a final determination on the merits of the case, it gives the plaintiff incredible leverage at the beginning of the case. An ongoing business can be hobbled by a writ of attachment that prevents the use of certain property or money.
3. Ex Parte Application or Noticed Motion?
An application for a writ of attachment can be brought by ex parte (emergency) application or by noticed motion. A writ of attachment will only be granted upon a showing that the plaintiff has a probability of prevailing in the lawsuit. To bring an ex parte application, a plaintiff must also establish the likelihood of irreparable harm, such as a showing that the defendant intends to transfer the property or money in order to avoid paying plaintiff.
4. Attorneys Beware: The Requirements for a Writ of Attachment
Business litigation attorneys should apply for a writ of attachment when possible. But there are specific requirements that the attorney should be careful to comply with in order to be successful. Attorneys can seek a writ of attachment in lawsuits based on claims for money based on an express or implied contract involving “fixed or readily ascertainable amounts” not less than $500 (not including costs, interest and attorneys fees). One of the basic requirements of a writ of attachments is that the attorney and the judge can point to an exact amount for the attachment.
If the attorney is seeking a writ of attachment against an individual, it is important to note that it can only be granted in lawsuits where the individual is engaged in a trade, business or profession. A writ of attachment cannot be granted in cases where the claim arises from personal or household debts. This same requirement applies to trust property.
Moreover, real estate litigation attorneys should note that writs of attachment are not available in a lawsuit where the claim is secured by an interest in real property, including mortgages, deeds of trust or liens (with certain exceptions). This, of course, makes sense because the property is already secured and therefore a writ of attachment is not really necessary.
In California, attorneys seeking a writ of attachment should use the judicial council forms. Writs of attachment are governed by California Code of Civil Procedure section 481.001-493.060.
Business litigation attorney Los Angeles Laine T. Wagenseller successfully sought a writ of attachment against Ameriquest Mortgage Company that led to a quick settlement for the full amount sought in a business litigation claim. Mr. Wagenseller is the founder of Wagenseller Law Firm in Los Angeles and can be contacted at (213) 286-0371 or firstname.lastname@example.org. For more information, visit www.wagensellerlaw.com.