ATTACHMENT
The legal process of seizing property to ensure sat-
isfaction of a judgment.
The document by which a court orders such
a seizure may be called a writ of attachment or
an order of attachment.
Originally, the main purpose of attachment
was to coerce a defendant into appearing in
court and answering the plaintiff ’s claim. The
court’s order pressured the sheriff to take the
defendant’s property into custody, depriving the
individual of the right to use or sell it. If the
defendant obstinately refused to appear, the
property could be sold by the court to pay off
any monetary judgment entered against him or
her. Today, the process of attachment has two
functions, as a jurisdictional predicate and as a
provisional remedy.
Attachment of property within reach of the
court’s jurisdiction gives the court authority
over the defendant to the extent of that prop-
erty’s value even if the court cannot reach the
defendant personally. For example, a court must
have some connection with the defendant in
order to require that person to appear and
defend himself or herself in an action before
that court.
A variety of different facts are sufficient to
give the court jurisdiction over the defendant’s
person; for example, the defendant’s residence
within the state, the defendant’s commission of
a wrongful act within the state, or the defen-
dant’s doing business within the state.
If none of these kinds of facts exist to give
the court jurisdiction over the defendant’s per-
son, the court may nevertheless assert its
authority over property that the defendant owns
within the state. In such a case, the plaintiff can-
not recover a monetary judgment for an amount
larger than the value of the property nor can the
individual reach the defendant’s property out-
side the state, but this sort of jurisdiction, called
jurisdiction in rem or quasi in rem, may be the
best the plaintiff can get. Before the court can
exercise jurisdiction over the property, the plain-
tiff must obtain a writ of attachment to bring it
into custody of the court.
Attachment may also be a provisional rem-
edy, that is, relief that temporarily offers the
plaintiff some security while pursuing a final
judgment in the lawsuit. For example, a plaintiff
who has good reason to believe that the person
he or she is suing is about to pack up and leave
the state will want the court to prevent this until
the plaintiff has a chance to win the action and
collect on the judgment. The plaintiff can apply
for an order of attachment that brings the prop-
erty into the custody of the court and takes away
the defendant’s right to remove it or dispose of
it.
A sample order of attachment
Attachment is considered a very harsh remedy because it substantially interferes with the defendant’s property rights before final resolution of the overall dispute. For this reason, there
have been a number of challenges to the attachment procedures in different states, and the Supreme Court has established standards that
are the least that DUE PROCESS requires. For example, for centuries attachment of a defendant’s property was granted ex parte, that is, without first allowing the defendant to argue
against it. The theory was that any defendant
was likely to leave the state if he or she knew
beforehand that his or her property was about to
be attached. This collides with the individual’s
right to be free of interference with his or her
rights unless the individual is given notice and
an opportunity to be heard in the matter. States,
therefore, now generally provide that notice
must be given to the defendant before the seizure of property whenever practical, and the defendant must be given a hearing promptly
after the seizure. Furthermore, a court cannot
sanction a seizure that is made without a court
order of attachment. To obtain the order, the
plaintiff must swear to a set of facts that justify
such a drastic interference with the defendant’s
property.
The process of attachment varies in detail
from state to state, but it is not overly complicated.
The plaintiff submits an application to the
court describing the CAUSE OF ACTION against
the defendant and the grounds for seeking an
attachment. The plaintiff may have to include
documents or other evidence to support the
claim that he or she will probably win the lawsuit,
and the individual usually is required to
make the application under oath. States generally
require that the plaintiff post a bond or
undertaking in an amount sufficient to secure
payment of damages to the defendant if it turns
out that the plaintiff was not in fact entitled to
the attachment.
The court issues a writ of attachment directing
the sheriff or other law enforcement officer
to serve a copy of the order on the defendant
and to seize property equal in value to the sum
specified in the writ. This is called a levy of
attachment. The defendant then has a right to
challenge the seizure or to post bond for the
release of the property, in effect substituting the
bond for the property in the court’s custody. The
order of attachment is effective only for a limited
period, the time necessary to wind up the
lawsuit between plaintiff and defendant or a
specified period intended to permit resolution
of the controversy. Provisions are usually made
for special circumstances or extreme hardship.
Not every kind of property owned by the
defendant is subject to attachment. The laws of a
state may provide exemptions for certain household
items, clothing, tools, and other essentials.
The defendant’s salary may be subject to attachment,
but a certain amount is exempt in order to
allow for personal support or for family support.
Property belonging to the defendant but in
the hands of someone else, such as salary owed
or a debt not yet paid, may also be seized, but
this procedure is usually called GARNISHMENT
rather than attachment.
Courts always have the discretion to exempt
more property than that specified in a statute or
to deny the attachment altogether under the
proper circumstances. This may be done, for
example, when the court believes that the property
sought to be attached is worth much more
than any judgment the plaintiff could hope to
win, or where the property is an ongoing business
that would be destroyed by attachment.
FURTHER READINGS
Siegel, Lee S., and Charlotte Biblow. 2000. “Attachment in Aid
of Arbitration.” Banking Law Journal 117 (September-
October): 422–28.
CROSS-REFERENCES
Search and Seizure.
