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The Motion and Affidavit for Prejudgment Writs of Attachment
Normally, attachment occurs after a judgment has been entered by the court. However, the trial court has the authority to order a writ of attachment to a debtor’s property prior to a final judgment order, and/or resolution of litigation. Generally, prejudgment attachment is appropriate only in extraordinary circumstances or when legal remedies are inadequate, the right to recovery is clear, and the plaintiff fears that if he waits, the eventual judgment will be uncollectible.[1] This provides a vehicle for concerned plaintiffs who wish to collect on a debt, but are confident that the debtor will transfer his property through certain legal channels to insulate his assets from collection prior to entry of judgment by a court. In Florida, prejudgment writs of attachment are governed by Chapter 76, Florida Statutes. A party can attach to goods, chattels, lands and tenements of the debtor, as well as attach to a debtor’s corporate stock. However, the law does not allow for plaintiffs to attach to everything. Attachment to debtor’s certain property may be subject to homestead and personal property exemptions under the Florida Constitution.[2] Additionally, a plaintiff cannot attach to real property, bank accounts, and potentially even personal property owned in a tenancy by the entirety, if the debt involves only one of the spouses.[3]
In order to successfully obtain a prejudgment writ of attachment, a plaintiff must file a motion with the court, and the plaintiff must file an affidavit stating the grounds for the issuance of the writ concurrently with the motion.[4] The plaintiff can also attach the motion and affidavit to his verified complaint, in order to catch debtors by surprise. The grounds relied on for the issuance of the writ must clearly appear from specific shown by a verified complaint, or a separate affidavit of the plaintiff, and all applicable requirements of §§ 76.09-10.[5] The affidavit must not be based on hearsay or the plaintiff’s subjective beliefs, but rather must be based on the plaintiff’s personal knowledge of the defendant’s actions.[6] In the affidavit, a plaintiff must provide proof that the debtor intends to hide his assets, which is why parties do not file prejudgment writs in every case in order to ensure protection of potential assets. The motion and attached affidavit must consist of the following:
- It must state the amount of debt that is actually due, and the plaintiff has reason to believe that one or more of the grounds in § 76.04, Fla. Stat. are present, stating specifically the grounds under §76.04. §76.09, Fla. Stat.
- When the debt is not actually due, the motion must state the amount of the debt; that it is actually an existing debt; and the existence of one or more of the grounds in §76.05, Fla. Stat. and the plaintiff must produce before the court satisfactory proof, by the affidavit of another, or other independent proof, of the existence of the grounds in §76.05.[7]
There are thirteen grounds available in § 76.04, Fla. Stat. when a debt is due that a plaintiff can show in its affidavit attached to the motion for prejudgment writ of attachment under which a court may grant the writ. Plaintiff need only show one of the following. The debtor:
- Will fraudulently part with the property before judgment can be obtained against him or her;
- Is actually removing property out of the state;
- Is about to remove the property out of the state;
- Resides out of the state;
- Is actually moving himself out of the state;
- Is about to move himself out of the state;
- Is absconding;
- Is concealing himself;
- Is secreting the property;
- Is fraudulently disposing of the property;
- Is actually removing himself beyond the limits of the judicial circuit in which he resides; or
- Is about to remove himself out of the limits of such judicial circuit.
When a debt is not due, there are only three grounds proscribed by §76.05 that plaintiff must show in its affidavit. Similar to §76.04, Plaintiff need only show one of the following. The plaintiff must show the debtor:
- Is actually removing the property out of the state;
- Is fraudulently disposing of the property to avoid the payment of his debts; or
- Is fraudulently secreting the property to avoid payment of his debts.
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To properly attach prejudgment, the plaintiff must post a bond payable to defendant in at least double the debt it demanded as security and to prevent bad faith.
To properly attach to a debtor’s property, the plaintiff must post a bond with surety payable to defendant in at least double the debt conditioned to pay all costs and damages which defendant sustains in consequence of plaintiff’s improperly suing out of the attachment.[8] The policy behind the bond is to provide security for debtors against overzealous collectors. Additionally, it prevents all parties from attempting to attach prejudgment because the plaintiff must have the assets to post double what they have lost due to the debtor’s conduct up front. If the plaintiff improperly sues, the debtor can file a subsequent lawsuit to recover the bond, and the plaintiff will most likely lose the money it posted.[9] The plaintiff should post the bond with the clerk when filing the motion to ensure that it has been completed. No writ will be entered by the court without the sufficient bond.
Once the writ is executed and the plaintiff’s bond is posted, the defendant may also post a bond to restore possession of their attached property. Property attached may be restored to defendant or some other person for him on defendant or such other person giving a bond with surety to the officer levying the attachment to be approved by the officer payable to plaintiff in an amount which shall exceed one-fourth (1/4) of the value of the property, or one-fourth the amount of the claim, whichever is less.[10] This is conditioned for the forthcoming of the property restored to abide the final order of the court. [11] The debtor’s bond does not replace the debt, rather, it ensures that the property will be returned when the creditor obtains a final judgment.
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A Debtor Can File an Opposing Motion to Dissolve the Prejudgment Writ.
A defendant/debtor can file a responsive motion to dissolve the prejudgment writ of attachment.[12] If the responsive motion is filed, it will be calendared for an immediate hearing. Id. The response most likely will attack the sufficiency of plaintiff’s ground(s) that he has alleged under §§ 76.04-05. If so, the sufficiency of the evidence is an issue for the trial court at an evidentiary hearing.[13] Compare this to if the debtor responds in its motion that the plaintiff’s allegations are untrue. If that is the case, then the issue shall be tried, and if demanded, in front of a jury.[14] At the trial on the matter, the plaintiff has the burden of proof to prove the allegations in the motion to the satisfaction of the court or jury.[15] If the writ is dissolved by the court, that does not end the case. This is merely a pre-trial issue, which can expose parties to additional attorney’s fees and prolong litigation. When an attachment is dissolved, only the attachment is dissolved, and the plaintiff may prosecute the action to final judgment.[16]
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Conclusion
The prejudgment writ of attachment can be a useful tool for plaintiffs in collection cases to ensure that will be able to successfully recover what they are owed. However, plaintiffs must be cognizant of the additional process required to successfully wield this tool, and the potential delays in litigation including a potential trial ancillary to the purpose of their case. Additionally, plaintiffs must be confident in the success of their case and must be able to provide the necessary capital in the form of the bond in order to successfully attach to a debtor’s property prejudgment. Therefore, it is prudent of an aggrieved plaintiff to consult their attorney to inform them of the pros and cons of the prejudgment writ of attachment before filing the motion and affidavit with the court.
[1] Cohen v. Hardman, 416 So.2d 498 (5th DCA 1982).
[2] See generally Art. X, §4(a), Fla. Const.
[3] See Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla. 2001), receded from on other grounds 780 So.2d 45.
[4] § 76.08, Fla. Stat
[5] Id.
[6] Frasher v. Fox Distributing of S.W. Florida, Inc., 813 So.2d 1017, 1019 (Fla. 2d DCA 2002).
[7] §76.10 Fla. Stat.
[8] . § 76.12, Fla. Stat.
[9] . See Florida Transportation Co. v. Dixie Sightseeing Tours, Inc., 139 So.2d 175 (Fla.3d DCA 1962) (stating that a prevailing defendant is entitled to recover against the bond).
[10] § 76.18 Fla. Stat.
[11] Id.
[12] § 76.24(1) Fla. Stat.
[13] Frasher, 813 So.2d at 1019.
[14] . §76.24(2) Fla. Stat.; see also Nelson v. Hall, 63. So. 156, 156 (Fla. 1913) (HN 2 Under F.S.A. § 76.24, it was error to refuse a jury trial where plaintiff made a written request for such trial of a traverse by the defendant of the allegations of an affidavit in attachment.).
[15] 13 Fla. Jur 2d Creditors’ Rights § 162; (citing Southern Nat. Bank of Fort Walton Beach v. Young, 142 So. 2d 788 (Fla 1st DCA 1962)).
[16] § 76.25 Fla. Stat.
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