Attachment (law)
Encyclopedia
Attachment is a legal process by which a court
of law, at the request of a creditor
, designates specific property owned by the debtor
to be transferred to the creditor, or sold for the benefit of the creditor. A wide variety of legal mechanisms are employed by debtors to prevent the attachment of their assets. For example, a declaration of bankruptcy
will severely limit the ability of creditors to attach the property of the debtor. Many jurisdictions have a homestead exemption
or other property exemptions which limit the ability of creditors to attach the debtor's primary residence, vehicle, and/or personal effects..
allows recovery of money damages by levying a security interest
on the property of the party paying money damages. A writ of attachment is filed to secure debt or claim of the creditor in the event that a judgment is rendered.
Historically, it prevailed as a custom of the City of London
. Though the custom did not apply throughout England and Wales
in general, similar customs existed in Bristol
, Exeter
and Lancaster
. , enforcement of money-judgments against third parties throughout England and Wales is governed by Pt.72 of the Civil Procedure Rules.
Foreign attachment procedures have existed from time to time in Scotland, where it was known as arrestment, in France, where it was known as saisie arret, in the U.S
and elsewhere.
with the process, but all persons were entitled to the benefit of the custom. The plaintiff
having started the action, and made a satisfactory affidavit
of his debt
, was entitled to issue attachment, which thereupon affected all the money or property of the defendant
in the hands of the third party, the garnishee. The garnishee had all the defences which would be available to him against the defendant, his alleged creditor. If there had been no fraud
or collusion, the garnishee could plead payment under the attachment. The court to which this process belonged was the Lord Mayor's Court, the procedure of which was regulated by the Mayor's Court of London Procedure Act 1857. This custom, and all proceedings relating to it, were expressly exempted from the operation of the Debtor's Act 1869.
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
of law, at the request of a creditor
Creditor
A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
, designates specific property owned by the debtor
Debtor
A debtor is an entity that owes a debt to someone else. The entity may be an individual, a firm, a government, a company or other legal person. The counterparty is called a creditor...
to be transferred to the creditor, or sold for the benefit of the creditor. A wide variety of legal mechanisms are employed by debtors to prevent the attachment of their assets. For example, a declaration of bankruptcy
Bankruptcy
Bankruptcy is a legal status of an insolvent person or an organisation, that is, one that cannot repay the debts owed to creditors. In most jurisdictions bankruptcy is imposed by a court order, often initiated by the debtor....
will severely limit the ability of creditors to attach the property of the debtor. Many jurisdictions have a homestead exemption
Homestead exemption
Homestead exemption is a legal regime designed to protect the value of the homes of residents from property taxes, creditors, and circumstances arising from the death of the homeowner spouse...
or other property exemptions which limit the ability of creditors to attach the debtor's primary residence, vehicle, and/or personal effects..
Prejudgment attachment
Prejudgment attachment or Prejudgment writ of attachmentPrejudgment writ of attachment
A prejudgment writ of attachment may be ordered in a legal action where a plaintiff has demonstrated meritorious allegations, fraud in the underlying action, or that defendant may attempt to dispose of or hide assets from the court...
allows recovery of money damages by levying a security interest
Security interest
A security interest is a property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt. It gives the beneficiary of the security interest certain preferential rights in the disposition of secured assets...
on the property of the party paying money damages. A writ of attachment is filed to secure debt or claim of the creditor in the event that a judgment is rendered.
Foreign attachment
Where the attachment is against property in the possession of, or owed by, a third party, the process is sometimes known as foreign attachment. This process allows the creditor to attach money owing to his debtor, or property belonging to the debtor in the possession of third parties.Historically, it prevailed as a custom of the City of London
City of London
The City of London is a small area within Greater London, England. It is the historic core of London around which the modern conurbation grew and has held city status since time immemorial. The City’s boundaries have remained almost unchanged since the Middle Ages, and it is now only a tiny part of...
. Though the custom did not apply throughout England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
in general, similar customs existed in Bristol
Bristol
Bristol is a city, unitary authority area and ceremonial county in South West England, with an estimated population of 433,100 for the unitary authority in 2009, and a surrounding Larger Urban Zone with an estimated 1,070,000 residents in 2007...
, Exeter
Exeter
Exeter is a historic city in Devon, England. It lies within the ceremonial county of Devon, of which it is the county town as well as the home of Devon County Council. Currently the administrative area has the status of a non-metropolitan district, and is therefore under the administration of the...
and Lancaster
Lancaster, Lancashire
Lancaster is the county town of Lancashire, England. It is situated on the River Lune and has a population of 45,952. Lancaster is a constituent settlement of the wider City of Lancaster, local government district which has a population of 133,914 and encompasses several outlying towns, including...
. , enforcement of money-judgments against third parties throughout England and Wales is governed by Pt.72 of the Civil Procedure Rules.
Foreign attachment procedures have existed from time to time in Scotland, where it was known as arrestment, in France, where it was known as saisie arret, in the U.S
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
and elsewhere.
Historical London procedure
The person holding the property or owing the money had to be within the City at the time of being servedService of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
with the process, but all persons were entitled to the benefit of the custom. The plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
having started the action, and made a satisfactory affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
of his debt
Debt
A debt is an obligation owed by one party to a second party, the creditor; usually this refers to assets granted by the creditor to the debtor, but the term can also be used metaphorically to cover moral obligations and other interactions not based on economic value.A debt is created when a...
, was entitled to issue attachment, which thereupon affected all the money or property of the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
in the hands of the third party, the garnishee. The garnishee had all the defences which would be available to him against the defendant, his alleged creditor. If there had been no fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
or collusion, the garnishee could plead payment under the attachment. The court to which this process belonged was the Lord Mayor's Court, the procedure of which was regulated by the Mayor's Court of London Procedure Act 1857. This custom, and all proceedings relating to it, were expressly exempted from the operation of the Debtor's Act 1869.