Client Owed Money? Get an Attachment

With the economy worsening, what can you do to expedite collection of money owed to your client?  File a lawsuit and immediately apply for a right to attach order.  A right to attach order is a prejudment remedy that may be obtained on 16 court days' notice or upon 24 hours' notice in special circumstances.

Applying for a right to attach order has several advantages.  The application encourages defendants to settle by threatening to deprive them of the use of valuable assets during litigation.  The application may also trigger defendants suffering from financial hardship to file bankruptcy before you waste time and money obtaining a judgment, which then becomes worthless.

The court will issue an attachment order when (1) there is a claim for money pursuant to a commercial contract, (2) the claim is for a fixed amount or the amount can be easily determined, and (3) the claim is likely to succeed.  (Code of Civ. Proc. Section 483.010.)  The contract does not even have to be a writing; it can be an oral agreement or simply implied from commercial conduct between the parties.  This means that you can obtain a right to attach order for the breach of a loan, lease, employment contract, partnership agreement, and for non-payment of invoices for goods and services.

An attachment entitles you to attach any property held by a corporation, partnership or association.  You may also attach personal property such a bank accounts, accounts receivable, equipment and inventory, community property, negotiable instruments and securities, and money kept at a business.  (Code of Civ. Proc. Section 487.010.)  The Sheriff holds all the property seized until the case is resolved.  Because the Sheriff cannot hold real property owned by the defendant, you can record the attachment order, which creates a lien on real property owned by the defendant, preventing him from transfering ownership to another person.

Prior to applying for an attachment order, you can hire a private investigator (such as ) to locate and identify potential assets to determine whether it makes sense to seek an attachment.  Investigators charge between $500 and $1500 for such services.  A less expensive alternative is to do the search yourself, using websites, such as .  Even if you don't do your own investigation, after the court issues a right to attach order, the defendant must tell you the identity, location and value of property in which he has an interest.  (Code of Civ. Proc. Section 485.230.)

The defendant's attached property is security for the satisfaction of your future judgment.  Without an attachment, the defendant is free to conceal, encumber, and transfer any assets before you obtain a judgment.  Therefore, if you have a meritorious commercial contract claim, it is a mistake not to seek a right to attach order.

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