The legal process of seizing property to ensure satisfaction 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 property'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 defendant's doing business within the state.
If none of these kinds of facts exist to give the court jurisdiction over the defendant's person, the court may nevertheless assert its authority over property that the defendant owns within the state. In such a case, the plaintiff cannot recover a monetary judgment for an amount larger than the value of the property nor can the individual reach the defendant's property outside 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 plaintiff must obtain a writ of attachment to bring it into custody of the court.
Attachment may also be a provisional remedy, 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 property into the custody of the court and takes away the defendant's right to remove it or dispose of it.
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.
Siegel, Lee S., and Charlotte Biblow. 2000."Attachment in Aid of Arbitration." Banking Law Journal 117 (September-October): 422–28.