![]() ![]() ![]() The statutes authorizing prejudgment attachment vary widely among the states.SLK_TAM: #1493251v1 2 Further, by definition, prejudgment attachment deprives the property owner of his or the property rights prior to full adjudication on the merits. Rather, each state has its own laws and rules that govern (1) what property can be attached, (2) what rights the defendant has to notice of the attachment proceedings, and (3) the procedure for obtaining the prejudgment attachment. There is no common law right to prejudgment attachment and there is no federal law which authorizes prejudgment attachment generally. Prejudgment attachment is a state law remedy and is purely a statutory right. You must also be able to detail the property to be seized with sufficient detail that the Court can issue an Order describing the property to be seized. In other words, you must file suit before seeking prejudgment attachment. You cannot seize a defendant’s property without a defendant. In general, prejudgment attachment requires (1) the existence of a suit for damages, (2) identification of property of the defendant, (3) to which the plaintiff claims a legal right, and (4) demonstration of some need to secure the property prior to the conclusion of the lawsuit. The exact requirements of prejudgment attachment vary from state to state. It is intended to prevent a defendant from selling, transferring, encumbering, hiding real or personal property before the plaintiff is able to obtain and enforce a final judgment. ![]() Prejudgment attachment authorizes a plaintiff to bring suit and secure the property of the defendant before obtaining final judgment. Prejudgment Attachments Prejudgment attachment provides a potential tool to secure the defendant’s assets while the lawsuit is pending. We first identify the two types of fraudulent transfers – active and constructive – and then discuss remedies available under the Uniform Fraudulent Transfers Act, which has been adopted in most states. The second section of the paper will discuss fraudulent transfers. Although the rules governing prejudgment attachment vary from state to state, we will analyze some of the common features and requirements of prejudgment attachment and then give a summary of the law for the states East of the Mississippi. The first section of the paper will discuss prejudgment attachment – a statutory remedy available in most states to seize a defendant’s property at the commencement of a lawsuit. ![]() Absent securing the property before transfers take place, there are also tools to help identify and unwind fraudulent transfers. To forestall such a result, it may be possible to secure a defendant’s property before he gets rid of it. As your action proceeds at a snails pace because of extensive discoveries, quests, and motion practice from defense counsel’s delay, any opportunity to recover from the defendant may be dashed by the time the Judge enters judgment and you seek to execute and get nothing. Introduction It is not difficult to imagine that you file an action to recover a loss and the defendant hastily transfers the cash to friends, wires money to relatives overseas, hides the vehicles out of state, and dumps his real property (except homestead in Florida). SLK_TAM: #1493251v1 1 Prejudgment Attachments and Fraudulent Conveyance Claims in Fidelity Litigation Securing Assets Prior to Judgment – East of the Mississippi By: Robert Warchola & Brian Willis, Shumaker, Loop & Kendrick I. Please see full article below for more information. It is not difficult to imagine that you file an action to recover a loss and the defendant hastily transfers the cash to friends, wires money to relatives overseas, hides the vehicles out of state, and dumps his real property (except homestead in Florida). ![]()
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