A writ of attachment is a prejudgment remedy that allows a creditor (plaintiff) to obtain a lien on the debtor's assets until final adjudication of the claim sued upon. In essence, a writ of attachment permits an unsecured creditor to become a secured creditor, gaining priority over defendant's other creditors. It is a powerful litigation tool which can facilitate a prompt settlement and assure the ability to collect on an eventual judgment.

 In order to obtain a writ of attachment, a plaintiff must show that its claim is both (i) subject to a writ of attachment and (ii) likely to succeed on the merits. Claims are generally subject to a writ of attachment if the following four criteria are satisfied. First, the action must involve a claim for money stemming from an express or implied contract. Second, the claim must be for a fixed or readily ascertainable amount, not less than $500. Third, the claim must not be secured by an interest in real property. Finally, the action must be based on a claim that is commercial in nature. If these criteria are satisfied and the court finds plaintiff will more likely prevail in the action than not, a writ of attachment will be issued - authorizing the plaintiff to attach the defendant's property, including bank accounts and real estate, pending the final outcome of the litigation.

There are two major strategic benefits to seeking a writ of attachment. First, a writ of attachment can substantially improve a plaintiff's chance of reaching a favorable settlement early on in the litigation. This is because the writ of attachment proceedings allow the court, and the defendant, to evaluate the plaintiff's claims at a very early stage in the proceedings. If the court finds that the plaintiff will likely prevail on the merits of its claim, the plaintiff gains significant leverage in any settlement discussions.

Second, even if no settlement is reached, a writ of attachment improves the plaintiff's ability to collect on an eventual judgment. This is because all of the property that the plaintiff attaches (seizes) pursuant to the writ of attachment is preserved throughout the litigation and available to be levied upon to satisfy the judgment. This prevents a debtor from hiding or moving assets in an attempt to evade a creditor's enforcement efforts.

In the right circumstances, a writ of attachment can be a very powerful tool. It can increase the chances of obtaining a fair settlement promptly and collecting on an eventual judgment. If you have a claim you are ready to pursue, contact the attorneys at Navigato & Battin to discuss whether a writ of attachment is appropriate for you.