An order of attachment is a court order that freezes or seizes a defendant’s property before a lawsuit is decided, so that assets remain available to satisfy a judgment if the plaintiff eventually wins. Because it takes property away before anything has been proven at trial, courts treat it as an extraordinary remedy and require the plaintiff to clear several hurdles before issuing one.
What the Order Does
An order of attachment (also called a writ of attachment or prejudgment attachment) directs a law enforcement officer to seize specific property belonging to the defendant or place a legal hold on it. The U.S. Marshals Service describes it as “a form of prejudgment process in which the court orders the seizure or attachment of property specifically described in the writ,” with the property kept “in the custody of a designated official…under order and supervision of the court.”1U.S. Marshals Service. Writ of Attachment The plaintiff does not get to use or sell what is attached. It sits frozen until the case ends.
The reason this remedy exists is simple. Lawsuits take time. A plaintiff owed $200,000 on a broken contract might spend a year or more in court, only to discover the defendant has emptied every account and transferred every asset to a relative. Attachment locks property down early. If the plaintiff wins, that property can be applied to the judgment. If the defendant wins, it goes back.
Where the Rules Come From
Attachment is almost entirely a creature of state law. In federal court, Rule 64 of the Federal Rules of Civil Procedure borrows whatever attachment remedies the state where the court sits provides.2Law.Cornell.Edu. Federal Rules of Civil Procedure Rule 64 – Seizing a Person or Property A federal court in Texas uses Texas rules; a federal court in New York uses New York’s. The main exception is when a separate federal statute controls directly, such as 28 U.S.C. ยง 3102, which governs attachment when the United States is the creditor.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment
Procedural details vary from state to state. Some limit attachment to contract claims; others allow it in tort cases. The required showing of urgency is not uniform. But the constitutional floor applies everywhere.
Grounds a Plaintiff Must Show
A court will not freeze someone’s property just because a plaintiff asks. The plaintiff has to point to something about the defendant or the situation that creates a real risk a future judgment will be uncollectable. Recognized grounds across states usually include:
- Asset concealment or transfer. The defendant has already moved, hidden, or given away property, or appears likely to.
- Non-resident status. The defendant lives outside the state or is a foreign business not registered there, making post-judgment collection difficult.
- Flight risk. The defendant is preparing to leave the jurisdiction to avoid creditors or service.
- Fraud in the underlying transaction. The claim rests on a contract, and the defendant used fraud to create the obligation.
Most jurisdictions also require the plaintiff to show a likelihood of winning the underlying case. A shaky claim will not support an attachment, which keeps the remedy from being used to pressure defendants into settling weak lawsuits.
Applying for the Order
The plaintiff files a motion supported by a sworn affidavit. General allegations are not enough. The affidavit has to identify the specific property to be attached, state the amount of the claim, and explain which recognized ground applies.
It also has to be backed by a bond. Courts require the plaintiff to post an attachment bond that protects the defendant if the attachment turns out to be wrongful.1U.S. Marshals Service. Writ of Attachment If the plaintiff loses or the court later decides the attachment should never have been granted, the bond pays the defendant for the harm. Amounts vary. Courts commonly set them at or above the value of the claim, and some states require double the claim or double the value of the property.
Notice, Hearings, and the Doehr Rule
Because attachment takes property before trial, it runs into the Due Process Clause of the Fourteenth Amendment. The Supreme Court addressed this directly in Connecticut v. Doehr (1991), striking down a state attachment statute that required no advance notice, no hearing, and no showing that the defendant was likely to dissipate assets.4Justia U.S. Supreme Court. Connecticut v. Doehr, 501 U.S. 1 (1991) The practical result is that most attachment procedures must give the defendant notice and a chance to be heard before property is seized.
Courts still allow ex parte attachment in narrow cases. The plaintiff has to show that notifying the defendant in advance would defeat the point of the remedy because the defendant would move assets out of reach. Even then, the defendant is entitled to a prompt post-seizure hearing.
What Can Be Attached, and What Cannot
Attachment can reach a wide range of assets. Real estate, bank account funds, vehicles, business equipment, and inventory are common targets. Intangible property such as stocks, bonds, and debts third parties owe the defendant can also be reached.
The attached property cannot exceed what is needed to cover the plaintiff’s claim. Under the federal attachment statute for government debt, for example, attached property cannot exceed the debt claimed plus likely interest and costs, minus any property already securing the debt or subject to other collection.3Office of the Law Revision Counsel. 28 USC 3102 – Attachment State statutes typically impose similar proportionality limits.
Several categories of property are off limits. Retirement accounts in ERISA-qualified plans (401(k)s, pensions, and similar employer-sponsored plans) are shielded by an anti-alienation provision that prohibits benefits from being assigned or taken by creditors, with limited exceptions for domestic relations orders and certain federal tax debts.5Office of the Law Revision Counsel. 29 USC 1056 – Form and Payment of Benefits Wages are also protected. The Consumer Credit Protection Act caps the amount of disposable earnings subject to garnishment or attachment at the lesser of 25% of disposable earnings or the amount by which weekly earnings exceed 30 times the federal minimum wage.6Office of the Law Revision Counsel. 15 USC 1673 – Restriction on Garnishment On top of those federal protections, states add their own exemptions. Homestead exemptions covering a primary residence are the most common, though the dollar amounts range widely. Many states also exempt basic personal property, tools of a trade, and some amount of vehicle equity.
How the Property Gets Seized
Once the court issues the order, a U.S. Marshal or local sheriff carries it out. For tangible property such as vehicles or equipment, the officer physically takes possession. For bank accounts, the officer serves the order on the financial institution, which then freezes the funds. The marshal “will maintain custody of the attached property under court supervision,” though the court can appoint the requesting party as a substitute custodian.1U.S. Marshals Service. Writ of Attachment The property then sits in legal limbo for the rest of the lawsuit. The marshal cannot sell it unless the court specifically orders a sale.
Attachment Versus Garnishment
The two remedies are often confused. The key difference is who holds the property. Attachment targets property in the defendant’s own possession or control. Garnishment reaches property that a third party holds on the defendant’s behalf. The U.S. Marshals Service defines garnishment as “a process by which the court orders the seizure or attachment of the property of a defendant or judgment debtor in the possession or control of a third party.”7U.S. Marshals Service. Writ of Garnishment A bank-account freeze is technically garnishment because the bank holds the money. Cash seized from the defendant’s office safe is attachment. Many states use the terms loosely, and some statutes treat bank freezes as a form of attachment.
Fighting an Attachment
A defendant whose property has been attached has several options:
- Motion to vacate. The defendant can ask the court to dissolve the attachment by showing that the plaintiff did not meet the legal requirements. At the hearing, the plaintiff carries the burden of proving the attachment was justified.
- Posting a counter-bond. In most states, the defendant can free the attached property by posting a bond equal to the plaintiff’s claim plus estimated interest and costs. Once the bond is in place, the attachment dissolves and the property is returned.
- Due process challenge. If the order was issued without notice or a hearing and the circumstances did not justify an ex parte order, the defendant can attack it under Doehr.4Justia U.S. Supreme Court. Connecticut v. Doehr, 501 U.S. 1 (1991)
- Claiming exemptions. If attached property falls within a federal or state exemption, the defendant can move to release that specific property even if the rest of the attachment stands.
The hearing on a motion to dissolve usually happens quickly. Courts recognize that frozen property causes ongoing financial harm, and many states require the hearing within days of the defendant’s request.
When an Attachment Turns Out to Be Wrongful
Attachment is not risk-free for the plaintiff. If the court later finds the attachment was wrongful, the defendant can recover from the bond. Recoverable damages can include lost business income, costs incurred because funds were unavailable, harm to credit or business reputation, and attorney fees spent fighting the attachment. A plaintiff who seeks attachment frivolously or in bad faith may face additional sanctions. The practical effect is that attachment tends to be reserved for cases where the plaintiff’s claim is strong and the risk of dissipation is real.
How Long an Attachment Lasts
A prejudgment attachment generally lasts until the lawsuit ends. Under the federal statute, the lien “shall continue until a judgment in the action is obtained or denied, or the action is otherwise dismissed.”3Office of the Law Revision Counsel. 28 USC 3102 – Attachment State rules follow the same pattern. If the plaintiff wins, the attached property can be applied to the judgment. If the plaintiff loses, the attachment is dissolved and the property goes back. Some states impose deadlines requiring the plaintiff to bring the case to trial within a set period or lose the attachment, and those deadlines vary.