Attachment of assets before judgment and the grounds a statute requires, garnishing an account held by someone else, the writ of replevin for specific goods, appointing a receiver over a business, recording a notice that litigation affects title to land, the hearing a defendant is owed, the bond the moving party posts, and dissolving the remedy if it was wrongly obtained.
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, 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.
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.
Prejudgment seizure of property is a deprivation that triggers procedural due process. The Supreme Court has struck down statutes permitting seizure on a creditor's bare assertion and upheld those combining judicial review, a factual affidavit, a bond and an immediate post-seizure hearing. The governing analysis weighs the private interest affected, the risk of erroneous deprivation, and the interest of the party seeking the remedy.
Federal Rule of Civil Procedure 64 makes every state remedy for seizing property available in a federal civil action, subject to any applicable federal statute. Beyond that borrowing, a district court's equitable power is limited: the Supreme Court has held that a court lacks authority to enjoin a defendant from disposing of assets where the plaintiff asserts only a claim for money and no lien or equitable interest in the property. Specific statutes supply narrower freeze powers.
Prejudgment attachment lets a plaintiff have property seized or encumbered before judgment so a later award can be satisfied. It is entirely statutory and the statutes diverge sharply. Connecticut allows a prejudgment remedy on probable cause that a judgment will be rendered. California confines attachment to commercial contract claims for a fixed sum. New York, Florida, North Carolina and Minnesota list conduct-based grounds.
Prejudgment garnishment reaches debts owed to the defendant and property of the defendant held by a third party. It is obtained on a verified motion or as part of an attachment order, and it takes effect on service upon the garnishee. The garnishee must answer, stating what it owes or holds, and must not pay or transfer in the interim. Earnings are protected by federal limits and are excluded from prejudgment garnishment altogether in some states.
A receiver is an officer of the court appointed to take custody of property, and sometimes to operate a business, while litigation is pending. Federal Rule of Civil Procedure 66 governs the administration of a federal receivership, and the substantive grounds come from equity and from state statutes such as California's list of eleven categories. Courts require a showing that the property is in danger of loss, removal or material injury and that no less intrusive remedy will serve.
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.
A receiver's authority is defined by the order appointing it rather than by any inherent office. A federal receiver must manage and operate property according to the valid laws of the state where it is situated, and may be sued without leave of the appointing court for acts in carrying on the business. Sales of realty under a court order follow a prescribed public-sale procedure, with private sales requiring notice, a hearing, appraisals and a minimum price.
A defendant whose property has been attached, garnished or seized may move to dissolve or vacate the writ. The motion is heard quickly by statutory direction, and in most states the plaintiff bears the burden of establishing the grounds, the continuing need for the levy and the probability of success on the merits. Grounds include defects in the papers, the absence of a statutory basis, exempt property, adequate security by other means and a change in circumstances.
