Pre-judgment attachment and garnishment are court orders that freeze a defendant’s property before a lawsuit is decided, so assets stay available to satisfy a judgment the creditor hopes to win. Attachment reaches property the defendant holds directly. Garnishment reaches money or property a third party holds for the defendant. Both are extraordinary remedies, and courts hedge them with strict proof requirements, bond obligations, and constitutional safeguards because seizing property before anyone has been found liable is a serious step.
The rules below describe the shared framework that applies in federal court through Rule 64 and in state courts through each state’s attachment statute. Procedural details vary by jurisdiction, but the core structure is consistent nationwide.
What Attachment and Garnishment Each Reach
A writ of attachment targets assets in the defendant’s own hands: real estate, vehicles, equipment, inventory, or bank accounts titled to the defendant. The court orders those assets frozen or physically seized so they remain available at the end of the case.
Pre-judgment garnishment reaches assets a third party owes or holds on behalf of the defendant. The classic examples are wages an employer has not yet paid or funds sitting in a bank where the defendant has an account. The court orders the third party to hold or turn over the funds instead of releasing them to the defendant.
In federal court, Rule 64 incorporates the attachment and garnishment procedures of the state where the court sits. The Federal Debt Collection Procedures Act provides a separate framework when the United States itself is the creditor. State courts apply their own attachment statutes.
The Constitutional Floor
Freezing someone’s property before trial is a deprivation that triggers due process protection. The governing test comes from Connecticut v. Doehr, where the Supreme Court weighed three factors for evaluating any pre-judgment attachment scheme: the private interest affected by the seizure; the risk of wrongful deprivation given the procedures in place and the value of additional safeguards; and the creditor’s interest in the remedy along with any governmental interest in providing or limiting it.1Justia Law. Connecticut v. Doehr, 501 U.S. 1 (1991)
The practical result is that no jurisdiction allows attachment on a creditor’s bare say-so. Every state and the federal system require some combination of sworn evidence, judicial review, and an opportunity for the defendant to be heard. When property is seized without prior notice, a prompt post-seizure hearing is constitutionally required.
What a Creditor Must Prove
Having a valid claim is not enough. A creditor must show both that the claim is likely to win and that there is a specific reason the property needs to be secured now rather than after trial.
Probable Validity of the Claim
The creditor must demonstrate that it is more likely than not that a judgment will be entered against the defendant. Courts expect documentary evidence: the contract, invoices, proof of nonpayment, or other records showing the debt exists and the defendant owes it. Under the federal debt collection statute, the creditor’s application must include an affidavit establishing “with particularity” the facts supporting the claim’s validity and the amount owed, including interest and costs.2Office of the Law Revision Counsel. 28 USC 3101 – Prejudgment Remedies
Many jurisdictions also limit pre-judgment attachment in contract cases to claims for a fixed or readily calculable dollar amount. A dispute over an uncertain amount of future lost profits may not qualify because the court cannot determine how much property to freeze. The claim must also generally be unsecured. If you already hold a mortgage or security interest in the debtor’s property, you have your remedy and don’t need the court to create one.
A Specific Risk to the Assets
The creditor must give the court a reason to believe the defendant’s assets will not be there when judgment arrives. The federal statute lists the usual grounds: the debtor is about to leave the jurisdiction, is disposing of or concealing assets, is converting property into forms harder to reach, or has evaded service of process.2Office of the Law Revision Counsel. 28 USC 3101 – Prejudgment Remedies State statutes track similar themes. A defendant who liquidates equipment the week after being sued, or wires large sums offshore, gives the court reason to act. A defendant whose assets are sitting untouched and who is cooperating with the litigation usually will not.
Badges of Fraud
Courts look for patterns when deciding whether a debtor moved assets to defeat creditors. A transfer to a family member or business insider, especially for less than fair value, is a red flag. So is a transfer made right after the debtor was sued or threatened with suit, or one that strips the debtor of substantially all assets. Retaining control of property after supposedly transferring it to someone else points the same direction. Other warning signs include a debtor who disappears or becomes unreachable, a transfer that was concealed rather than openly recorded, and a transaction that leaves the debtor insolvent.
No single factor is decisive. When several appear together, courts routinely conclude the debtor acted with intent to put assets beyond reach, and that finding supports the argument that waiting until after trial would be pointless.
What Property Can Be Frozen
Pre-judgment attachment can reach a broad range of assets. Liquid holdings are the most common target: checking and savings accounts, money market funds, and certificates of deposit. Real estate is another frequent subject, particularly for large claims. Equipment, vehicles, inventory, and other tangible business property are also eligible. On the intangible side, creditors can sometimes reach accounts receivable, contractual rights to future payment, and intellectual property with measurable value.
The federal attachment statute caps the value of attached property at the amount of the claimed debt plus estimated interest and costs, minus the value of any property already securing the debt or already subject to garnishment or receivership in the same case.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment A creditor owed $50,000 cannot freeze $500,000 in assets. Most state statutes include a similar proportionality limit.
Business entities typically face broader exposure than individuals. Most commercial assets are eligible, and the protections that shield personal property often do not extend to corporate holdings. Individual defendants receive more protection, with many jurisdictions restricting pre-judgment attachment to assets connected to business activity rather than personal belongings. A personal residence may be exempt unless the debt arises directly from that property. Assets must also sit within the court’s territorial jurisdiction for the writ to be effective, though multiple writs can go to different districts if the debtor’s property is spread across locations.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment
What Property Cannot Be Touched
Both federal and state law carve out property that cannot be seized even under a valid writ.
General Exemptions
Under the Federal Debt Collection Procedures Act, individual debtors can elect to protect property using either the federal bankruptcy exemption list or the exemptions available under the law of the state where they live.4Office of the Law Revision Counsel. 28 USC 3014 – Exempt Property Common exempt categories across most states include a portion of equity in a primary residence, basic household furnishings, tools needed for the debtor’s trade or profession, a vehicle up to a specified value, and certain retirement accounts. The federal attachment statute excludes earnings from attachment altogether, steering wage-related collection into the separate garnishment framework.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment
If a levying officer seizes property the debtor believes is exempt, the debtor can file a motion asking the court to vacate the levy. If the court agrees the exemption applies, it must order the property returned.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment
Wage Garnishment Caps
The Consumer Credit Protection Act sets a nationwide floor on how much of a paycheck creditors can reach. For ordinary debts, the maximum garnishment is the lesser of 25 percent of the worker’s disposable earnings for the pay period, or the amount by which disposable earnings exceed 30 times the federal minimum wage.5eCFR. 29 CFR Part 870 – Restriction on Garnishment With the federal minimum wage at $7.25 per hour, the second threshold works out to $217.50 per week.6U.S. Department of Labor. State Minimum Wage Laws A worker earning $217.50 or less per week in disposable income cannot be garnished at all. Many states set lower caps.
Support orders follow different rules. Garnishment can reach up to 50 percent of disposable earnings if the worker is supporting another spouse or dependent child, or up to 60 percent if they are not. Those figures increase by 5 percentage points for support arrears older than 12 weeks.5eCFR. 29 CFR Part 870 – Restriction on Garnishment Federal and state tax debts are exempt from these caps entirely.
Protected Deposits
When a garnishment or levy hits a bank account, certain federal benefits deposited there are automatically protected. Banks must review the account and shield two months’ worth of directly deposited Social Security payments, Supplemental Security Income, Veterans Affairs benefits, and federal retirement income before freezing any remaining funds. This protection applies whether or not the debtor raises it, so long as the deposits are identifiable as direct deposits of protected benefits.
How a Creditor Obtains the Writ
The Application and Affidavit
The creditor’s application must lay out the factual and legal basis for the remedy with specificity. At minimum, it identifies the exact dollar amount claimed, including accrued interest and anticipated costs; explains why the claim is likely to succeed; and describes one or more of the statutory grounds for seizing property before trial. An affidavit signed under penalty of perjury provides the evidentiary foundation. The writ itself must contain a reasonable description of the property to be attached, including details like bank account numbers, legal descriptions of real estate, or serial numbers for equipment.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment Vague or incomplete descriptions are a common reason writs are rejected or successfully challenged.
The Bond
Most state statutes require the creditor to post a bond or undertaking before the writ issues. The bond protects the defendant: if the attachment turns out to have been wrongful, it provides a fund from which the defendant can recover damages. Surety companies issue these bonds for a premium that typically ranges from 1 to 10 percent of the bond’s face value, depending on the creditor’s financial strength and the risk involved. The court sets the bond amount based on the value of the property being seized or the total amount of the claim. One exception: when the United States is the creditor under the federal debt collection statute, no bond is required.2Office of the Law Revision Counsel. 28 USC 3101 – Prejudgment Remedies
Noticed Motion or Ex Parte
The default procedure in most jurisdictions is a noticed motion. The creditor files the application, the defendant receives advance notice (commonly 15 to 30 days depending on the jurisdiction), and both sides appear at a hearing where the judge decides whether attachment is warranted. The defendant can argue that the claim lacks merit, that the statutory grounds are not met, or that the targeted property is exempt.
In genuine emergencies, courts allow ex parte applications where the creditor appears before a judge without giving the defendant advance notice. This shortcut is reserved for situations where the creditor can show the defendant is actively dissipating assets and any delay would make the remedy meaningless. Courts grant ex parte orders sparingly, and the defendant gets a prompt post-seizure hearing to challenge the attachment after the fact.1Justia Law. Connecticut v. Doehr, 501 U.S. 1 (1991)
Costs
The total cost stacks up from several sources. The court filing fee for the attachment application itself is usually modest, often under $100, though the underlying civil case carries its own filing fee. The creditor also pays the surety bond premium, the levying officer’s fees for serving and executing the writ (which can range from roughly $50 to $500 depending on complexity), and attorney fees for preparing the application and attending the hearing. For large commercial disputes these costs are a small fraction of what’s at stake. For smaller claims they can be prohibitive, which is one reason many jurisdictions set a minimum claim amount for attachment eligibility.
How the Writ Is Executed
Once the court issues the writ, the creditor delivers it to a levying officer. In federal court, a U.S. Marshal serves the writ according to both the instructions in the writ and applicable state law.7U.S. Marshals Service. Writ of Attachment In state court, the sheriff or marshal for the county where the property is located typically handles execution.
What the officer does depends on the type of property. For tangible personal property like equipment or vehicles, the officer may physically take possession. For bank accounts, the officer serves notice on the financial institution, which then freezes the debtor’s funds up to the amount specified in the writ. The account holder often discovers the freeze only when a transaction is declined or a balance drops without explanation. For real estate, the officer records a lien in the county records, preventing the owner from selling or refinancing without addressing the lien. After completing the levy, the officer files a return with the court documenting which assets were secured and how.7U.S. Marshals Service. Writ of Attachment
How Long the Lien Lasts
A pre-judgment attachment lien does not expire on a fixed calendar date. Under the federal statute, the lien arises at the moment of levy and continues until the court enters a judgment for or against the creditor, or the case is dismissed. State statutes follow similar logic, though some impose maximum durations with the option to renew. If the creditor wins, the attachment lien typically converts into a judgment lien that relates back to the date of the original levy, giving the creditor priority over anyone who acquired an interest in the property after that date.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment This relation-back feature is one of the most valuable aspects of pre-judgment attachment: it locks in the creditor’s place in line.
The death of the debtor does not automatically terminate an attachment lien.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment The claim continues against the estate, and the lien remains on the property. If the attachment survives through a bankruptcy filing, it can elevate what would otherwise be an unsecured claim to a secured one, which improves the creditor’s recovery position substantially.
Fighting Back as a Defendant
A defendant served with a writ has several options.
Motion to Dissolve or Reduce the Attachment
The most common argument is that the attachment is excessive, meaning the creditor froze more property than necessary to secure the claim. If the court agrees, it orders some property released while keeping enough attached to cover the debt plus estimated interest and costs. A defendant can also seek full dissolution if the underlying debt is unliquidated and cannot be calculated, since the court has no basis for determining how much to freeze.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment
Other grounds include procedural defects in the application, failure to meet statutory requirements, or a showing that the creditor’s claim lacks probable validity. If the attachment was obtained ex parte, the post-seizure hearing is the defendant’s first real chance to challenge everything from the merits of the claim to the necessity of the remedy.
Claiming Exempt Property
If the levying officer seized property the defendant believes is exempt, the defendant can request that the court vacate the levy on that specific property at any time. The court must order the property returned if it finds the exemption applies.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment Defendants should act promptly, because some jurisdictions treat a failure to raise the exemption at the earliest opportunity as a waiver for personal property.
Posting a Counter-Bond
Perhaps the most practical option for a defendant who needs access to attached property is to post a replevin bond. Under the federal statute, the defendant can recover attached property by posting a bond equal to double the reasonable value of the property or double the value of the creditor’s claim, whichever is less. This gives the defendant use of the property while guaranteeing the creditor that funds remain available if the creditor wins. State procedures vary in the specific multiplier, but the concept is the same: substitute a bond for the physical property. If the creditor ultimately loses, the court exonerates the bond and returns the property or its proceeds to the defendant.8Office of the Law Revision Counsel. 28 USC 3102 – Attachment
What Happens When the Creditor Was Wrong
A creditor who obtains a pre-judgment attachment and then loses the underlying case faces real exposure. The bond posted at the outset exists for this scenario. The defendant can recover actual damages caused by the wrongful seizure, including lost business income, inability to use frozen funds, damage to credit or business reputation, and the cost of defending against the attachment. In some jurisdictions, a defendant who proves the attachment was sought in bad faith or without reasonable grounds can recover attorney fees and potentially punitive damages on top of actual losses.
The risk cuts both ways. Used strategically, pre-judgment remedies give a creditor powerful leverage and protect the ability to collect. Used carelessly or as a pressure tactic, they can cost more in wrongful attachment damages than the original debt was worth. The bond requirement is the system’s way of making sure the creditor has skin in the game, and the strength of the underlying claim is the single most important factor in deciding whether to pursue one.