When you pursue a commercial debt in court, the gap between filing a lawsuit and getting a judgment can be months or years. A debtor may use that time to transfer property, drain bank accounts or move assets beyond your reach. Fortunately, there is a way for you to protect your interest.
Securing a lien before judgment
A writ of attachment is a court order that allows you to place a lien on a debtor’s property while your lawsuit is still pending. It works as a provisional remedy, which means its purpose is to keep assets in place for potential collection rather than to resolve the dispute itself.
In order to qualify, your claim must be based on an express or implied contract, the dispute must involve a fixed or clearly calculable amount of $500 or more (excluding costs, interest and attorney fees) and, in the case of an individual debtor, the debt must arise out of his/her conduct of a trade, business, or profession. Furthermore, the debt needs to remain unsecured or backed only by personal property. If you are a business pursuing another business for an unpaid invoice or a breached agreement, this type of relief was built with that scenario in mind.
Identifying attachable debtor property
The scope of property you can reach through attachment depends on the type of debtor you are pursuing. When the debtor is a corporation, partnership or unincorporated association, California law treats all of that entity’s property within the state as attachable, which can include real property, bank accounts, accounts receivable, equipment and inventory.
When the debtor is an individual, the range narrows considerably. You can attach the debtor’s real property, subject to homestead exemptions, and assets directly tied to their trade, business or profession. Other personal assets generally remain out of reach.
Navigating the approval process
Securing a writ of attachment typically requires a noticed motion served at least 16 court days before the hearing. You must support your motion with evidence proving your claim arises from a contract, involves a calculable amount and has probable validity. You also demonstrate that the identified property is nonexempt and your sole purpose is to recover the debt.
Once the court approves the order, you must post a surety bond—typically $10,000—before the clerk will issue the writ of attachment. In emergencies, you may request an ex parte writ without advance notice. You also need to prove to the court that waiting for a standard hearing risks serious harm, such as the imminent disappearance of the debtor’s assets.