Now that we have established the value in utilizing a writ of attachment (read our article on the basics of write attachment here), let’s take a look at how to use it.
The burden is on you, the creditor, to prove that he/she/it has a right to attach the debtor’s assets according to the statutory requirements listed above and that the claim is probably valid. C.C.P. § 484.090. Even if the Defendant does not oppose the request, the creditor still has to prove each of the statutory requirements. It is important to not rush your application and provide supporting documents that ensure you have the admissible evidence necessary to prevail.
If you are suing an entity, then you can attach all personal property both tangible (furniture, fixtures, delete “vehicles”etc.) and delete “all” intangible property (money, instruments, accounts receivables, etc.) provided there is a method under the code for attachment. CCP Sections 481.020-481.225 and CCP Section 487.010. If you are suing a person, you can only attach non-exempt property. So for example, if a person owns real property, you can only attach the equity in their real property (the fair market value of the property less, a homestead and all outstanding liens).
In order to attach a debtor’s property, the creditor must file declarations containing admissible evidence along with appropriate judicial council forms and Points and Authorities in strict compliance with Local Court Rules and applicable statutes. A right-to-attach order will be issued if the claim can support the issuance of a writ of attachment and a writ of attachment will not be issued unless the court determines that the property to be attached is not exempt. CCP Sections 487.010-484.110. Delete last sentence.
There are two methods to obtain a right to attach order, by noticed motion and by ex parte application. The most common method to obtain a right-to-attach order is by a noticed hearing method. The notice of hearing and application for a writ of attachment must be served to the debtor at least 16 days before the date set for the hearing and the debtor’s notice of opposition must be filed and served at least five days before the hearing. CCP Sections 484.020-484.060. Many businesses, upon realizing that a creditor is going to put a stranglehold on their revenues, will attempt to work out a settlement before the hearing date.
The second method is by an ex parte application. If a creditor shows that he/she/it will suffer great or irreparable injury (very difficult to demonstrate by admissible evidence, but doable if commercial collections attorney Ronald P. Slates handles your matter!)by the delay of the issuance of the writ of attachment until after a noticed hearing, a writ may be issued based on an ex parte application. CCP Section 485.010(a). In ex parte procedures, the creditor is only required to give a one-court-day notice prior to the presentation of an ex parte application, substantially shorter than the 16 day notice for the noticed hearing procedure. C.R.C. 3.1203(a). Again, Ex partes are hard to get issued unless you can really show that the property may be concealed, substantially impaired in value, or made unavailable to the levy of an attachment if regular notice where given. CCP Section 485.010(b)(1).
Before a court will order the issuance of a writ of attachment, a creditor must file an undertaking or a bond in a sufficient amount that would protect the debtor should damages arise from a wrongful attachment. CCP Section 489.210. Right-to-attach orders require a bond and, if the bond is not filed when the writ of attachment is granted, the sheriff cannot levy on any property of debtor. Vershbow v. Reiner (1991) 231 Cal.App.3d 879. The undertaking must be in the minimum amount of $10,000.00 which may be increased by the court if the debtor can show by substantial evidence that the potential damages for wrongful attachment would exceed this amount. CCP Section § 489.220.
AGAIN, the careful use of the attachment proceedings encourages early and prompt amicable resolution of many commercial collection matters. To discuss your commercial collections matter, contact Los Angeles collections attorney Ronald P. Slates today.