Writs of Attachment are handy tools to tie up assets at the start of a commercial collections lawsuit so that when you have your judgment you still have something to collect upon (more on writs of attachment can be found here). However, a smart collection attorney also has to be able to read the climate of the litigation and determine whether attaching the assets of a business debtor is going to backfire, throwing the business debtor straight into bankruptcy before the 90 day preference period expires. For an ongoing business, attachment is a devastating legal event, particularly when the business accounts, accounts receievable and/or inventory are levied upon and payroll is affected, but it almost invariably brings the defendant to the negotiating table, which is one of its intended purposes.
With the assistance of your attorney, you may determine that the business has the ability to pay the ultimate judgment and that gambling that the business may file bankruptcy as a result of the attachment levy simply is too great. In those instances, there is a special attachment procedure that allows the creditor to step its position up to a secured creditor if things go awry after the 90 preference period (to avoid the lien in bankruptcy), but still allows the business to function on a day-to-day basis. That prejudgment remedy is a non-custodial attachment.
Provisional or prejudgment remedies enable creditors to preserve the value of potential judgments after a court action is filed but before it has been concluded by preventing debtors from transferring, encumbering, dissipating or concealing assets available to satisfy the judgments. These remedies are temporary, and can only be pursued in connection with actions on the underlying claims.
Provisional remedies include:
• Attachment;
• Claim and Delivery; and
• Receivership.
For more information on how to create a judicial lien on the debtor’s attachable property, contact Los Angeles commercial collections attorney Ronald P. Slates today.