When it comes to the commercial collections process, nothing says “I mean business” like a pre-judgment application for right to attach order and writ of attachment. Successfully utilized, a writ of attachment is one of the best tools for encouraging the debtor(s) towards prompt resolution of a business debt.
Attachment is a pre-judgment remedy that allows a creditor to assert a lien on many of the debtor’s assets before final adjudication of the claim sued upon. With that said, preparing an application for a writ of attachment is not for the faint of heart. You need a thoroughly experienced commercial collection attorney who is able to jump through all of the highly technical procedure hurdles, or you will never get the writ issued, but you may instead spend a small fortune trying.
California Code of Civil Procedure provides that an attachment may be issued in an action that is a claim for money based upon a contract, expressed or implied, where the total amount of the claim is a fixed or readily ascertainable sum not less than $500.00, that is either unsecured or secured by personal property, including fixtures. CCP Section 483.010(a). Additionally, the claim/debt must not already be secured, or if it is secured, the security must have no value or a value that is less than the amount of the claim. CCP Section 483.010(b). Finally, if the action is against an individual, you can only get a writ of attachment if the debt arises out of a trade, business or profession. CCP Section 483.010(c) and 492.010(a). In a nutshell, writs of attachment are for business debts based on a contract; not torts (fraud, business torts, or fraudulent transfers).
The real beauty of a writ of attachment is two-fold. First, it literally ensures that there will be something of value upon which your client can execute when you eventually prove up your case and judgment is rendered. Second, if you successfully attach non-exempt assets and 90 days pass from the date of attachment, if the debtor files bankruptcy or before judgment is entered, the creditor can lift itself to secured status by seeking relief from the automatic stay and reducing the lawsuit to judgment and the secured status of the judgment relates back to the attachment date.