When our clients have a dispute with somebody that looks like it will escalate to a lawsuit, we typically want at least four things: (1) to win; (2) to win quickly; (3) to win inexpensively, and; (4) to make sure that when we win, there’s money to collect on the other side. There is one strategy that accomplishes all of these objectives better than any other I know. Plus, it has a nice side-benefit: it freezes your opponent’s assets making it extremely difficult, if not impossible, for them to fight back.
It’s called a writ of attachment and, if you’ve got the right facts, you can get it without even giving your opponent prior notice. In one of our recent victories, that’s exactly what we did.
Problem: Our client was being threatened with a lawsuit. After reviewing the facts, the documents and the applicable law, we determined that he not only had good defenses, but also a counterclaim of his own for significant damages. We sent a demand letter that failed to resolve the dispute. We knew we had to file a lawsuit to get the result we wanted. But we were dealing with a sophisticated defendant who we knew could, and most likely would, try to hide its assets as soon as we filed our complaint. Our main objectives, therefore, became those mentioned above: (1) win; (2) win quickly; (3) win inexpensively, and; (4) make sure that when we win, there’s money to collect on the other side.
Solution: We prepared the complaint. On the same day that we filed the complaint, we asked the court to issue a writ of attachment. We believed the facts justified us in seeking that attachment without any prior notice to the opposition. This is difficult to do, but a writ of attachment may issue without notice if “it appears from facts shown by affidavit that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.” CCP § 485.010(a)
“Great or irreparable injury” is inferred where plaintiff’s affidavits show the property sought to be attached may be “concealed, substantially impaired in value, or otherwise made unavailable to levy.” See CCP § 485.010 (a)(1). We demonstrated to the court that defendant was a sophisticated real estate investor who had the knowledge, motivation and ability to put its assets beyond our reach if she had prior notice of our application for writ of attachment.
In order to get an attachment, you also have to convince the court of ALL of the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued; (2) The plaintiff has established the probable validity of the claim upon which the attachment is based; (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based, and; (4) The amount to be secured by the attachment is greater than zero. CCP § 484.090.
Think about that for a moment. If the court grants a request for an attachment, the court is telling you it agrees you have established the probable validity of your claim. That’s not only a powerful affirmation at the beginning of your lawsuit, but it has a huge potential impact on your opponent.
We made each of these required showings to the court’s satisfaction, the court agreed the writ of attachment was proper and granted our request…and it did that without requiring us to give any prior notice to the defendants. How did we do that? By demonstrating to the court that if we gave defendant even one day’s notice, it could and most likely would hide assets, making itself judgment proof and frustrating the purpose of the lawsuit.
Result/Benefit: We immediately used the attachment to levy upon, or freeze, the defendant’s assets, preventing it from using those assets to fight the lawsuit or otherwise. As soon as defendant discovered its assets had been frozen, realistic settlement discussions followed.
Can we promise this result in every case? No.
Can we promise the same kind of tough, aggressive, swift, and creative approach to try to make you whole as quickly and inexpensively as possible? Absolutely.
If you’re involved in a dispute, come to our Firm. You’ll get the special attention of me and our dedicated staff. We’ll go the extra mile to see that you receive the maximum compensation and full justice you deserve. Every one of our clients is like family. They’re close to us. They know what’s going on. We firmly believe that you can’t do any better than having our firm represent you. Let us prove it to you.
If you have a dispute you’d like to discuss, please mention this blog post when you contact us and you’ll receive a free consultation (a $100 minimum value). Call 800-553-7626 or e-mail [email protected].
