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Creditors' Rights: The Versatility and Value of Writs of Attachment

creditors rights.jpgObtaining a court judgment against a business or consumer is only one part of the recovery process, especially if the party you obtained a judgment against no longer has any assets after the judgment is entered. You spent all this money on litigation costs and only to spend more money to find alternative ways to recover your judgment. However, prior to initiating the legal process, you should consider obtaining a writ of attachment, which will almost certainly ensure recovery, should judgment be entered in your favor.

A writ of attachment is an order of the court that establishes a lien on a particular property in the debtor's possession, which will remain until judgment is entered in the case. Once the writ of attachment is perfected, it prevents the debtor from transferring, encumbering, dissipating or concealing assets that will be utilized to satisfy and judgments entered by the court. This means that you will have a secured interest in the property. However certain requirements must be met in order for a court to issue a writ of attachment. These requirements, costs, and successfully finding assets to perfect a writ of attachment should all be understood when considering this approach to protecting your interests.

Process for Obtaining a Writ of Attachment

In order to obtain a writ of attachment in California, you need to file an application for a right to attach order, a writ of attachment and a declaration under oath that establishes the necessary facts showing that you are entitled to a writ of attachment. The facts in the declaration need to include whether:

  • The claim is for payment of monetary assets based on a debt or contract;
  • The amount due is ascertainable and more than $500;
  • The debt is not secured by real property;
  • The claim is commercial in nature;
  • The claim is valid; and
  • The application is for a correct purpose.

Once you properly submit an application for a writ of attachment, you need to perfect the writ. This means that the writ must be attached to assets. If the debtor is a corporation, you will have a variety of assets to choose because nearly all assets of a corporation are subject to attachment. However, when you are trying to perfect your interest in the assets of an individual, there are some exemptions that apply.

Consult an Attorney

If you are considering applying for a writ of attachment, should the court rule in your favor, you should consult an experienced San Jose creditors' rights attorney who will be able to effectively advise you of the best route to protect your interests and fastest process to ensure recovery. Reach out to us today for an initial consultation on your case.

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