United States of America - Attachment of Assets
Michael L. Morkin and Kyle R. Olson, Baker & McKenzie
Originally from Attachment of Assets
Before addressing the editor’s 20 specific questions on attachment, a brief introduction is appropriate to explain certain aspects and idiosyncrasies of the approach taken by courts in the United States. Attachment in the United States may take the form of an order of execution, order of attachment, order of garnishment, order requiring post-judgment turnover of judgment debtor’s property, order of contempt or other orders necessary or proper in aid of its jurisdiction. Attachment proceedings find their roots in a state’s right to subject all property within its borders to its laws. In the United States, attachment and garnishment proceedings are unique remedies that are solely created by statute. Since attachment and garnishment are in derogation of the common law, the statutes authorizing these procedures must be strictly construed and all prerequisites must be complied with before any remedy is available. Unless otherwise stated, this chapter will address the two principal methods of attaching assets in the United States, attachment and garnishment.
The United States does not have one uniform law regarding the attachment of assets. Instead, each state and territory has its own statutes governing these procedures. This is true whether attachment is sought in state court or federal court. Thus, a thorough discussion of attachment in the United States involves an analysis of more than 50 separate statutes. This chapter does not attempt to completely summarize these myriad attachment and garnishment laws and should not be used as a substitute for researching the law of a particular jurisdiction. This chapter simply explores the elements of U.S. attachment procedures in general terms. In any proceeding to obtain an attachment, the law of the state in which the attachment is sought must be consulted in detail. A complete list of the individual state attachment statutes is attached as Appendix A.