Attachment

Definition of "Attachment"

Written by

Todd Lands

Charles Reinhart Company

Typically, the legal term attachment refers to seizing a person’s property, being charged with debt, and giving it to the wronged creditor until the process is in motion.

Attachment seizes real estate as a preliminary measure.

A plaintiff will turn to a court of law when they claim that another person or agency owes them money. We call this party the defendant. The plaintiff will anticipate that the court will rule in their favor. Then, attachment comes into the picture. Attachment is a legal process defining the action of the (assumed) debtor’s taking property. 

Let’s take this one step further. The court will pass possession of the defendant’s (in our case, the debtor’s) particular property to the plaintiff (in our case, the creditor.) At the same time, the court of law may also rule to sell a specific property for the creditor’s profit or gain. All this will take place at the creditor’s request. 

In short, attachment in real estate means a legal term of the writ that authorizes the seizing of property or rights because of legal action. It was designed to protect the property in favor of the plaintiff.

Attachment and its real estate implications

Unpaid real estate debts can definitely trigger the ruling of an attachment, too. By all means, an attachment is only a preparatory procedure. Plaintiffs can get an attachment as a temporary countermeasure or solution. Consequently, authorities will take the property before the judge makes the final judgment. However, the seizure will turn out to be unreasonable or right if the defendant wins the case. 

Authorities can seize real estate, personal cars, and bank accounts as an attachment. Why does it happen without knowing the final rule? Because the judge considers that the plaintiff has an excellent chance to win this case. In addition, the judge will assume that the debtor is prone to disappear without settling their court-ordered debts. As a direct consequence of these assumptions, justice can order a preliminary ‘blow’ by seizing the defendant’s property.

We have all heard of offshore bank accounts. It’s a general practice to hide an unreported sum of money from the fiscal service agencies. To avoid this event, the judge will rule that they seize the debtor’s bank assets. Therefore, the defendant can’t transfer them to an offshore bank, for instance, the infamous Cayman Island. 

An additional consequence of this attachment is that the defendant can’t replace their possession of a valuable asset in someone else’s name and outside the court’s jurisdiction while the process is in motion. Also, the debtor will try to sell their valuables. By doing so, they can block the plaintiff from claiming the property in court. 

When an attachment of real property turns personal

Divorces with real estate at stake can turn ugly. For this reason, they use attachment in civil cases. One party can express concern that the other half will try to hide or ‘rescue’ their belongings from the court’s jurisdiction. A fraudulent debtor will transfer ownership over their fanciest property to leave their former partners financially damaged or broke.

The act of attachment is initially pro-plaintiff

The legislative body designed the concept of an attachment to oblige defendants to show up in court and face a plaintiff’s charges against them. A significant part of the procedure was inventing the attachment to give preliminary financial relief for the wronged creditors. 

Difficulties can emerge if the debtor has no other legal connection to the state where the plaintiff has submitted the claim but a specific real estate or other valuable in said state. Under such circumstances, the court can offer the plaintiff the property’s value found in the state as an attachment. The judge can’t order an attachment without a proper hearing first. 

Nonetheless, suppose the final ruling contradicts expectations. Then, the court must nullify the act of attachment and pay the defendant security for the financial losses caused by the taking of their property.