The Bond and Damages for a Wrongful Writ
Every state conditions a prejudgment writ on security, and then defines what makes the writ wrongful. The two questions are connected, because the definition decides when the security is called and the statute decides whether the security is the ceiling.
The rule in short
A plaintiff obtaining a prejudgment writ must post security conditioned on paying the costs and damages the defendant sustains if the writ was improperly obtained. The amount is set by statute in some states and by the court in others. What counts as a wrongful attachment is also statutory: California lists the situations expressly, and New York makes the plaintiff liable where the defendant recovers judgment or it is finally decided that the plaintiff was not entitled to the writ.
Security is what makes a prejudgment writ tolerable. The plaintiff has persuaded a court on an incomplete record, the defendant has lost the use of property before losing a case, and the bond is the mechanism that puts the risk of error on the party that asked for the remedy. Every state requires one for attachment. What they do not agree on is how much, who fixes it, and whether the amount is the limit of what the plaintiff owes.
The security required before issue
Three drafting styles are in use. Florida sets the amount by formula: no attachment issues until the applicant makes a bond with surety approved by the clerk, payable to the defendant, in at least double the debt demanded, conditioned to pay all costs and damages the defendant sustains in consequence of the plaintiff improperly suing out the attachment.
California sets a fixed figure. The undertaking for a writ of attachment is ten thousand dollars, and if on objection the court determines that the probable recovery for wrongful attachment exceeds that sum, it orders the amount increased to the figure it determines to be the probable recovery. The statutory number is therefore a floor and a default rather than a considered assessment of any particular case.
North Carolina and Minnesota leave the amount to the court within a minimum. North Carolina requires a bond fixed by the issuing court in an amount deemed necessary to afford reasonable protection to the defendant, not less than two hundred dollars, conditioned on payment of costs and damages if the order is dissolved or the plaintiff fails to obtain judgment. Minnesota requires at least five hundred dollars, and directs the court to consider the value and nature of the property, the method of storage and the potential harm.
| State | How the amount is set | Ceiling on recovery |
|---|---|---|
| Florida | At least double the debt demanded | Governed by the bond and general law |
| California | Ten thousand dollars, increased on objection | Wrongful attachment liability defined by statute |
| New York | Fixed by the court, not less than five hundred dollars | None; liability expressly not limited by the undertaking |
| North Carolina | Fixed by the court, not less than two hundred dollars | Surety's liability limited to the bond |
| Minnesota | Fixed by the court, not less than five hundred dollars | Above the bond only on prior notice or bad faith |
What makes a writ wrongful
California defines the concept rather than leaving it to case law. A wrongful attachment consists of a levy in an action in which attachment was not authorized, subject to a narrow exception where the levy was barred only by the consumer-transaction limit and the plaintiff reasonably believed the property was not so used; a levy in an action in which the plaintiff does not recover judgment; and a levy on exempt property under the ex parte or expedited procedures, except where the plaintiff reasonably believed the property was not exempt.
The second of those categories is the significant one. A plaintiff that attaches property and then loses the case has attached wrongfully, whatever the strength of its position at the outset. That allocation is deliberate: the plaintiff chose to take the property early, and the statute makes it bear the consequence of being wrong rather than the defendant.
New York reaches the same place through the undertaking. The plaintiff must give an undertaking conditioned that it will pay the defendant all costs and damages, including reasonable attorney fees, sustained by reason of the attachment if the defendant recovers judgment or if it is finally decided that the plaintiff was not entitled to an attachment of the defendant's property.
Most discussion of provisional remedy bonds assumes the security caps the exposure. New York's rule says otherwise in a single sentence: the plaintiff's liability is not limited by the amount of the undertaking. A plaintiff attaching in that state should price the remedy by reference to the defendant's likely loss, not by reference to the bond it has been asked to post.
A separate question is whose loss counts. A levy frequently touches property in which someone other than the defendant has an interest, and several statutes make the plaintiff liable to that person directly. Adverse claimant procedures allow such a person to appear, prove the interest and seek release of the property together with damages, without becoming a party to the underlying dispute.
Proving the loss
Damages are the ordinary consequential losses of losing the use of property for a defined period. Where a bank account was frozen, the claim is built from the financing arranged to replace the funds, the payments missed and their contractual consequences, and the cost of dealing with the freeze. Where goods were seized, storage, deterioration, substitute purchases and lost sales are the usual components.
Causation is where these claims are narrowed. A defendant whose business was already failing will struggle to attribute the collapse to a levy, and a plaintiff defending the claim will point to the underlying condition. Contemporaneous records carry the argument: invoices, financing agreements, correspondence with customers, the bank's own notices. Reconstructions prepared for the claim are received with less confidence.
Minnesota's statute shows how a cap can be made conditional. Damages may be awarded above the bond only if, before the order fixing the amount was issued, the respondent specifically notified the claimant and the court of the likelihood of the specific damages, or if the court finds the claimant acted in bad faith. That structure rewards a defendant that quantifies its exposure at the outset, which is the same lesson the hearing owed before property is frozen teaches for a different reason.
How the claim is brought
The claim usually proceeds in the same action, after the entitlement question is resolved. Florida allows any aggrieved party to sue on the bond and preserves the obligors' liability despite informalities, providing that a bond is not void as against the obligors on account of any informality even where the attachment is dissolved because of it. That provision closes an obvious escape route.
Timing follows the underlying determination. Where the writ was dissolved on a motion, the ruling may or may not establish that the plaintiff was not entitled to it, and the routes to that determination are described in the motion to dissolve a writ already issued. Where the case proceeded to judgment for the defendant, most statutes treat that outcome as sufficient without more.
Finally, the bond question shapes what a plaintiff should seek in the first place. A remedy that costs a bond at double the debt demanded, and exposes the plaintiff to uncapped damages if the case is lost, is not always worth the priority it produces. The narrower alternatives, including recording against real property under a notice that litigation affects title, and the exemptions that may leave little to attach under the property a writ cannot reach, belong in that calculation.
Points to carry away
- Security is a condition of issuance, not a step taken after the writ is served.
- Florida requires a bond in at least double the debt demanded before an attachment issues.
- California fixes the attachment undertaking at ten thousand dollars, subject to increase on objection.
- New York provides expressly that the plaintiff's liability is not limited by the amount of the undertaking.
- California defines wrongful attachment by statute, including levy in an action where attachment was not authorized.
Questions readers ask
Can the defendant challenge the amount of the undertaking?
Yes, and doing so early is the practical safeguard. California allows an objection to the undertaking, and directs the court to increase the amount if it determines the probable recovery for wrongful attachment exceeds the sum posted. Minnesota permits the court to modify the bond at any time on its own motion or on a party's, weighing the value and nature of the property, the method of storage and the potential harm. A defendant that accepts a statutory minimum without objection has set its own ceiling in states that cap recovery.
What forms of security are accepted?
A surety bond is the traditional instrument, and statutes usually require the surety to be approved by the clerk or the court. Alternatives are increasingly common. Minnesota allows a claimant or respondent to satisfy the bonding requirement by depositing cash, a letter of credit, a cashier's check or a certified check with the court. Deposits are simpler where the sum is modest, because they remove the surety from the picture entirely and shorten the process of paying out at the end.
Are attorney fees recoverable as damages for a wrongful writ?
It depends on the statute. New York includes reasonable attorney fees expressly in the costs and damages a plaintiff must pay where the defendant recovers judgment or it is finally decided that the plaintiff was not entitled to the attachment. Other states are silent, which leaves fees to the general rule that each side bears its own unless a statute or contract provides otherwise. Where fees are recoverable, they are frequently the largest component of the claim.
Sources
- New York Civil Practice Law and Rules 6212, Motion papers; undertaking; filing; demand; damagesRequires an undertaking of at least five hundred dollars and states that liability is not capped by it.
- California Code of Civil Procedure 489.220, Amount of undertakingSets the undertaking at ten thousand dollars, increased on objection to the probable recovery.
- California Code of Civil Procedure 490.010, Wrongful attachment definedLists the levies that constitute a wrongful attachment, including levy where the plaintiff loses.
- Florida Statutes 76.12, Attachment bondRequires a bond in at least double the debt demanded, conditioned on costs and damages.
- North Carolina General Statutes 1-440.10, Bond for attachmentFixes a court-set bond with a statutory minimum and states the conditions triggering liability.
- Minnesota Statutes 570.041, Bonding requirementsRequires a bond of at least five hundred dollars and permits damages above it only in stated circumstances.
Rapid Response Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Prejudgment Remedies
Recording a Notice That Litigation Affects Title
A notice of pendency, also called a lis pendens, is recorded against real property to give constructive notice that litigation may affect title. A person whose conveyance or encumbrance is recorded afterward takes subject to the outcome. The claim must be one that would affect title, possession or use of specific real property, and the principal defense is a motion to expunge or cancel, on which the claimant generally bears the burden of establishing the claim's probable validity.
Replevin and Recovering a Specific Thing
Replevin, called claim and delivery in some states, lets a plaintiff claiming the right to possession of a specific chattel have it seized before judgment. The application must identify the goods, state the basis of the right and their value, and be supported by an undertaking. A noticed hearing on the probable validity of the claim is the default, issue without notice requires defined grounds, and the defendant may regain the goods by posting a bond.
Property a Writ Cannot Reach
Exemptions remove categories of property from the reach of a prejudgment writ regardless of the plaintiff's entitlement. States commonly import their post-judgment exemption schedules, adding protection for property necessary to support a natural person and that person's family. Earnings are protected by a federal cap and by wider state rules, and federal benefit payments deposited directly into an account are shielded by regulation without any claim by the account holder.