As a creditor there is a risk that the money a debtor owes you will go unpaid. This is especially true if the debtor files for bankruptcy. Civil court systems provide a number of tools permitting you to collect debt outside of a bankruptcy action. An experienced collection lawyer utilizes one such effective tool, called a writ of attachment.
A writ of attachment, a form of a judicial lien, permits creditors to place a legal claim on the debtor’s assets early in the judicial process, even before a judgment is entered. New Jersey permits a writ of attachment on real or personal property at the beginning of the case.
The writ of attachment provides a two-fold benefit:
However, a skilled collection lawyer understands that there are limits to how and when a writ of attachment may be used.
Most state and federal jurisdictions permit creditors to obtain writs of attachment, although there are some differences between the two.
Typically, the U.S. Marshals Services is the agency used to seize and hold any property subject to the writ of attachment. In successfully obtaining a writ of attachment, courts generally require the claim to be:
A court will require you to show:
Pursuant to the New Jersey Court Rules 4:60, et. seq., to successfully obtain a writ of attachment, you must show:
If successful, the court will issue an order directing the issuance of the writ, which shall contain the following:
Generally, the writ will be issued to the sheriff where the property to be attached is located. The sheriff will then impose a levy within thirty days of the date of the writ.
If the creditor meets all of the requirements, the court may issue a writ of attachment for any non-exempt property.
For business debtors, non-exempt property that could be attached includes any property the business holds that is within jurisdiction.
For individual debtors, there are greater restrictions of what non-exempt property could be attached. For example, earnings are most commonly held as an exempt property. However, federal courts permit creditors to attach any property that the debtor has “possession, custody, and control” of.
For a court to have authority to take action on your behalf, a civil lawsuit must first be initiated which files and serves a complaint for recovery of the debt owed to you or your business. Either simultaneously or after service of the complaint, you may initiate a proceeding to obtain a writ of attachment.
There are two ways you may request an order for an issuance of a writ of attachment:
Generally, you will be required to file and serve several documents such as:
Once the order of issuance of writ of attachment is granted, you usually can obtain several writs to place liens in the different counties where the debtor may own property.
Courts may also require you to obtain a bond (or undertaking) as an extra insurance in case the attachment is later shown to be wrongful. The court determines the amount of the bond, which may be based on the probable damages due to a wrongful attachment.
Obtaining payments for the debt owed to you can be demanding. At Snellings Law LLC, a tenacious collection lawyer will review your facts and craft your best strategies to maximize the repayment of the amount owed. Book a consultation with us today on Attornify.