![]() The plaintiff submits an application to the court describing the Cause of Action against the defendant and the grounds for seeking an attachment. The process of attachment varies in detail from state to state, but it is not overly complicated. To obtain the order, the plaintiff must swear to a set of facts that justify such a drastic interference with the defendant's property. Furthermore, a court cannot sanction a seizure that is made without a court order of attachment. 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. 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. 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. 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. 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. ![]() 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.Īttachment is considered a very harsh remedy because it substantially interferes with the defendant's property rights before final resolution of the overall dispute. ![]() 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. ![]() 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.Īttachment may also be a provisional remedy, that is, relief that temporarily offers the plaintiff some security while pursuing a final judgment in the lawsuit. 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. 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. 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.Ī 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. Today, the process of attachment has two functions, as a jurisdictional predicate and as a provisional remedy.Īttachment 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. 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. 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. Originally, the main purpose of attachment was to coerce a defendant into appearing in court and answering the plaintiff's claim. The document by which a court orders such a seizure may be called a writ of attachment or an order of attachment. The legal process of seizing property to ensure satisfaction of a judgment.
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