Dissolving a Writ Already Issued

A prejudgment writ is not final and is not meant to be difficult to undo. Because it issues on a compressed record, sometimes without the defendant present, every system pairs it with a motion that can be brought immediately and heard within days. That motion, not an appeal, is where a wrongly issued writ is normally defeated, and the statutes are drafted to make it fast.

Who may move, and how quickly it is heard

Standing is broader than the parties. New York allows the defendant, the garnishee, or any person having an interest in the property or debt to move on notice to each party and the sheriff for an order vacating or modifying the order of attachment, at any time before the property is applied to the satisfaction of a judgment. North Carolina permits a defendant whose property has been attached to appear specially or generally and move before the clerk or the judge at any time before judgment.

Speed is written into the statutes. Florida directs the court to set a motion to dissolve an attachment for immediate hearing. California provides that the hearing on an application to set aside a writ issued under its ex parte chapter takes precedence over all other civil matters on the calendar that day, except older matters of the same character. Connecticut allows modification or vacatur at any time on motion and after hearing.

What the motion must contain is prescribed in some systems and left open in others. California requires a notice of motion stating the grounds, an affidavit supporting any factual issues raised, and points and authorities on any legal issues. Determinations are made on the pleadings and papers in the record, though the court may receive additional evidence, oral or documentary, on good cause shown, or continue the hearing to allow it.

Where the burden sits

The allocation is the most important feature of these provisions and the one most often misunderstood. New York states it plainly: on a motion to vacate or modify an order of attachment the plaintiff has the burden of establishing the grounds for the attachment, the need for continuing the levy, and the probability that it will succeed on the merits. The defendant does not have to disprove anything.

Florida reaches the same result through the structure of the remedy. The defendant may obtain dissolution unless the plaintiff proves the grounds on which the writ was issued and a reasonable probability that the final judgment in the underlying action will be rendered in the plaintiff's favor. California's ex parte chapter requires the court at the hearing to determine whether the plaintiff is entitled to the right to attach order, and to set the order aside and release the property if it is not.

Two consequences follow. The first is that a defendant with limited information can still move, because the plaintiff must justify the writ from its own materials. The second is that the motion functions as the delayed adversarial hearing the Constitution requires, which is the link back to the hearing owed before property is frozen.

The grounds that succeed

Substantive failure is the strongest. If no statutory ground exists, if the claim falls outside the class the statute permits, or if the plaintiff cannot show probable success, the writ goes. These arguments are decided on the plaintiff's own papers plus whatever the defendant adds, and they do not require a trial of the underlying dispute.

Procedural defects come next and are more variable. New York invalidates an order of attachment not filed with the supporting papers, the summons and the complaint within ten days of the grant, unless the time is extended, while protecting a person who acted on it without knowledge of the invalidity. Failure to confirm an ex parte order within the period the court sets is fatal in several systems. Whether such a defect can be cured depends on the state and on whether the court treats it as formal.

Exemption is a distinct route. Property that the statute places beyond reach can be released on that basis alone, without reference to the merits of the claim, and the categories are described in the property a writ cannot reach. Adequate security by other means is another: Connecticut's hearing expressly considers whether payment of any judgment is adequately secured by insurance.

Changed circumstances form a fourth category. New York directs that if, after the defendant has appeared, the court determines the attachment is unnecessary to the security of the plaintiff, it shall vacate the order. That is a forward-looking test rather than a review of the original decision, and it gives a defendant that has since provided information about its assets a route that does not depend on showing the writ was wrong when granted.

Alternatives to dissolution

Modification is often the realistic outcome. Where the writ is justified but excessive, courts reduce the amount secured or release particular assets rather than dissolving. Connecticut authorizes the court to modify a prejudgment remedy as the circumstances warrant, and California allows a defendant to seek reduction of the amount to be secured rather than complete relief.

Substituting security is the other common route. Most systems let a defendant discharge the levy by posting a bond, which frees the property while preserving the plaintiff's position. That trade is attractive where the frozen asset is an operating account and the defendant can obtain a bond, and it converts the dispute into the ordinary one about the merits. The considerations governing those undertakings appear in the bond and damages for a wrongful writ.

Third parties have their own path. New York's adverse claims proceeding lets any interested person commence a special proceeding against the plaintiff to determine the rights of adverse claimants, in which the court may vacate the attachment, void the levy, direct disposition of the property, require or release undertakings, or award damages. Where the property is a business rather than a fund, the parallel challenge is to the appointment itself, addressed in the account of appointing a receiver over a business.