Pacific Rim Commercial Collections
Prejudgment Writ of Attachment
The prejudgment writ of attachment remedy is considered to be the most aggressive collection action that can be taken in civil litigation. The right to attach order granted by the court gives the party who obtained the order the right to levy upon cash on site, bank accounts, equipment, inventory and other property of the defendant as though the plaintiff already had a judgment. Since the right to attach order on a prejudgment writ of attachment, if granted, is generally granted at the early stages of the case; and long before a trial on the merits of the case has taken place, it has an extremely high impact that can force an early settlement.
A prejudgment writ of attachment will only be granted if the claim is:
• For money based upon an express or implied contract;
• For a fixed or readily ascertainable amount;
• Either unsecured or secured by personal property, but not real property; and
• Is commercial in nature.
In short, most of the cases where the prejudgment writ of attachment applies are commercial collection cases. In addition to the requirements set forth above, the plaintiff must establish the probable validity of the claim upon which the attachment is based. This means that the court must determine that it is more likely than not that the plaintiff (creditor) will prevail and obtain a judgment against the defendant (debtor).
It is quite obvious that a plaintiff who obtains a right to attach order has obtained a very powerful litigation weapon. Success in obtaining an attachment order often results in the defendant immediately settling the case since his or her assets have been frozen, making it either extremely difficult or impossible to conduct his or her business.
The most effective strategy is for the plaintiff (creditor) to seek a prejudgment writ of attachment within a few days of filing suit. The motion (application) is filed ex parte which means providing the defendant notice of the hearing before 10:00 a.m. on the morning before the court hearing. If all works as planned, the defendant (debtor) may have his or her assets frozen before he or she has had time to hire an attorney. It is important to understand that not all applications for a prejudgment writ of attachment are granted.
Call us about a no cost initial consultation concerning any commercial collection matter.