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Pre-Judgment Attachment: Get It Before It Vanishes
Unfortunately, filing a lawsuit to collect a debt is often an
encouragement to the debtor to move and conceal assets. This
sometimes makes creditors hesitant to take early legal action.
But, Virginia law has a solution: the pre-judgment attachment.
Virginia law allows a creditor to bring the debtor's property
into court custody at the outset of a lawsuit, thereby assuring
that the property will be available to satisfy any judgment
the court eventually grants.
Virtually any significant asset of a debtor can be subjected
to attachment. Although real estate and business equipment are
the most popular targets, a creditor can also attach bank accounts
or even other monies owed to the debtor by a third party. One
useful application of pre-judgment attachment occurs in construction
cases, when a sub-contractor attaches payments to an out-of-state
general contractor. An interesting case is the attachment of
an elephant from a traveling circus; unfortunately, the creditor
neglected to compute the cost of feeding the animal before taking
this ill-advised action.
To secure a pre-judgment attachment the plaintiff files a sworn
petition setting forth the cause of action and the grounds for
the attachment. The justifications for attachment must fall
within one or more of the categories allowed by Virginia Code
Section 8.01-534. If the petition is approved by a judge, the
creditor must post a bond of twice the amount of the claim.
Upon posting of the bond a warrant will be issued ordering the
sheriff to seize the property and bring it into the custody
of the court. Generally, the debtor will request a hearing within
twenty-one (21) days of the seizure at which time the court
will determine whether the property will be released or remain
in custody until the lawsuit is completed. Many attachments
are dismissed at that hearing because of failure to comply with
the technical requirements of Virginia attachment procedure.
Pre-judgment attachments do involve certain risks to the creditor.
The bond is posted in order to compensate debtors for the improper
seizure of their assets. Therefore, creditors should not use
attachments for questionable claims. Nevertheless, the judicious
utilization of this legal tool can be the difference between
an empty judgment and a collected judgment.
Grounds for Attachment:
In summary form, it is sufficient grounds for attachment that
the defendant:
- Is a nonresident corporation or individual, which has assets
or debts owed to it in Virginia
- Is removing or about to remove out of the Commonwealth with
intent to change domicile
- Intends to remove, or is removing, or has removed the specific
property sued for or his assets or the proceeds of the sale
of his property out of the Commonwealth so that the debtor will
not have therein assets sufficient to satisfy the judgment
- Is converting, is about to convert or has converted his property
into money, securities or debt with the intent to hinder, delay
or defraud creditors
- Has assigned or disposed of or is about to assign or dispose
of his assets with intent to hinder, delay or defraud creditors
- Has absconded or is about to abscond from the Commonwealth
or has concealed himself to the injury of his creditors, or
is a fugitive from justice.
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