A major consideration of any commercial enterprise that engages in business, especially, with new partners, is whether, in the worst-case scenario, the debtor has the assets to satisfy a money judgment and, more importantly, whether these assets will be available once a judgment is rendered. A writ of attachment, a pre-judgment provisional remedy, is a valuable tool available to any business enterprise.
In California, the list of attachable property owned by an individual is defined by statute. C.C.P. § 487.010. If a defendant is a natural person, the underlying claim must be based on an obligation arising from the defendant’s trade, business, or profession. Also, the underlying claim of a writ of attachment may not be based on property, services, or money used by the defendant for personal, family, or household purposes.
Where a defendant is a natural person, all the following property is subject to attachment if the writ is based on a claim arising from the defendant’s trade, business, or profession:
(1) Interests in real property except leasehold estates with unexpired terms of less than one year.
(2) Accounts receivable, chattel paper, and general intangibles arising out of the conduct by the defendant of a trade, business, or profession, except any such individual claim with a principal balance of less than one hundred fifty dollars ($150).
(4) Farm products.
(6) Final money judgments arising out of the conduct by the defendant of a trade, business, or profession.
(7) Money on the premises where a trade, business, or profession is conducted by the defendant and, except for the first one thousand dollars ($1,000), money located elsewhere than on such premises and deposit accounts, but, if the defendant has more than one deposit account or has at least one deposit account and money located elsewhere than on the premises where a trade, business, or profession is conducted by the defendant, the court, upon application of the plaintiff, may order that the writ of attachment be levied so that an aggregate amount of one thousand dollars ($1,000) in the form of such money and in such accounts remains free of levy.
(8) Negotiable documents of title.
(11) Minerals or the like (including oil and gas) to be extracted.
A writ of attachment is tailored for and contemplates transactions in a commercial rather than a consumer setting. To wit, all property within California held by a corporation, partnership or unincorporated association for which a method of levy is provided by statute, which is an extensive list, is subject to attachment.
Property that may be attached in California includes both “real and personal property and any interest therein.” C.C.P. § 481.195. Personal property may be tangible or intangible, including money, chattel paper, documents of title, instruments, securities, and general intangibles. Personal property may also include equipment, inventory, and accounts receivable. C.C.P. §§ 481.020-481.225. If there is a statutory procedure under California law for attaching a property-specific type, every asset owned by a defendant in California is subject to attachment.
Obtaining a writ of attachment allows the party holding the writ to assume converts creditor/plaintiff into a secured position thus gaining priority over unsecured creditors, and improving the likelihood that any final judgment will be enforceable. Obtaining a writ of attachment may also expedite settlement since it strengthens the underlying claim.
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