Thank you for using JA. I am Loren, a licensed attorney for over 35 yrs and a certified expert on JustAnswer since 2009.
This question is, understandably, important to you, and it is important to us that you get an accurate answer, as quickly as possible.
No common law right to prejudgment attachment exists in the US. Attachment may be available as a prejudgment remedy under state statutes addressing the subject. Federal courts may attach property to the extent permitted by the law of the state in which they sit. A request for a prejudgment attachment or freezing order must be requested from the applicable trial court. A request for attachment or a freezing order may be made at the time the complaint is filed but cannot be requested prior to a suit being commenced. When prejudgment attachment is authorized, courts typically have discretion to issue prejudgment writs of attachment that prevent a defendant from disposing of or hiding tangible or intangible assets that may be used to satisfy any judgment the plaintiff ultimately obtains. A plaintiff seeking prejudgment attachment may be required to post bond to cover any damage caused to defendant’s property in the event that the plaintiff does not succeed on its claims.
The criteria for the issue of a prejudgment writ of attachment are similar to the ordinary principles for granting injunctive relief, although courts have recognized that attachment is a severe remedy that is appropriate only if the plaintiff produces evidence showing an appreciable risk of being unable to enforce a future judgment. Relief may not be sought on an ex parte basis. It is primarily requested in the context of a pending litigation, not prior to a suit being filed. Because the procedure seeks to attach assets prior to a judgment being entered, a court is likely to require a high burden of proof showing that the plaintiff will be entitled to relief once the litigation concludes.
Broadly and generally, an applicant must show that:
- the applicant is likely to prevail on the merits of its case;
- the refusal of a writ of attachment will give rise to a real risk that the plaintiff will be unable to enforce any judgment rendered in its favor;
- the balance of the equities favor the attachment; and
- the public interest favors the attachment, meaning that attachment must further an important interest beyond the claims in the litigation itself.
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