Writ of Attachment in California
Writ of attachment is a prejudgment process. A court orders a seizure (the attachment) of property that is described in the writ. Once the property is seized, it is held in custody of an appointed official under court supervision. This appointed official can be a US. Marshal, or law enforcement officer. A writ of attachment demands a property PRIOR to the outcome of a judgment or trial.
Important Takeaways:
- A writ of attachment may be used in both eviction cases and bankruptcy cases.
- If a judge rules in favor of the debtor, the property would be returned to them
- If a creditor prevails, the property can be sold at auction to pay debts
Types:
- Plaintiff’s claim is for money (CA Code of Civil Procedure Section 483. 010(a)); AND
- Plaintiff’s claim is at least $500, excluding costs, interest, and attorney fees (CA Code of Civil Procedure Section 483. 010(a)); AND
- Plaintiff’s claim is predicated on a written or implied contract (CA Code of Civil Procedure Section 483. 010(a)); AND
- Plaintiff’s total amount of claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees. (CA Code of Civil Procedure Section 483. 010(a)).
A Plaintiff MUST prove:
- The plaintiff has established the probable validity of the claim upon which the attachment is based; AND
- The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; AND
- The amount to be secured by the attachment is greater than zero.
If a defendant is a natural person, plaintiff’s claim:
- Must be based on an obligation arising from defendant’s conduct of trade, business, or profession (CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v Wilson (1987) 197 CA3d 1).
- Must not be based on sale or lease of property, license to use property, the furnishing of services, or loan of money when property, services, or money was used by the defendant for personal, family, or household purposes. CCP §483.010(c).
Attachable Property
The following types of property may be attached:
- Any interest in real property except:
- (a) Leasehold estates with unexpired terms of less than 1 year (CCP §487.010(c)(1)); or
- (b) If defendant’s real property is subject to homestead declaration, amount of any surplus over total of (CCP §487.025(b)):
- All liens and encumbrances on homestead when attachment lien created; plus
- Homestead exemption (regardless of whether and when it is recorded).
- Accounts receivable, chattel paper, and general intangibles arising out of conduct by the defendant of trade, business, or profession except claims with a principal balance of less than $150 (CCP §487.010(c)(2)).
- Equipment (CCP §487.010(c)(3)).
- Farm products (CCP §487.010(c)(4)).
- Inventory (CCP §487.010(c)(5)).
- Final money judgments arising out of defendant’s conduct of trade, business, or profession (CCP §487.010(c)(6)).
- Money on premises where defendant conducts trade, business, or profession (CCP §487.010(c)(7)).
- Except for the first $1000, money located elsewhere than on defendant’s business premises (CCP §487.010(c)(7)).
If defendant is Corporation, Partnership, or Limited Liability Company, plaintiff’s:
The claim does not need to arise from the trade, business, or profession. CCP §483.010(c).
