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Writ of attachment process in California financial elder abuse cases

May 25th, 2015 | By | Category: Financial Elder Abuse

Financial Elder Abuse Lawyers – Writ of Attachment explained (watch the videos)

Tips to settle financial elder abuse cases CA   How to get a writ of attachment in California

Bonus materials:  Click on the pictures above to watch our 2-part video series on how to obtain a writ of attachment in California financial elder abuse cases.  Make sure to SUBSCRIBE to our real estate law youtube channel by clicking on the Red “V” in the corner of the video.  This will provide you with free video updates when we launch them!

Introduction

When you are involved in litigation involving complaint alleging financial elder abuse you would be wise to closely review the following blog.  The writ of attachment procedure in California elder abuse cases can be the difference between winning and losing your case, and when used properly can enhance your chances that the case settles earlier in the litigation than may have otherwise have been achieved.

What is a writ of attachment?

A writ of attachment is an order from the Court that allows a Plaintiff to attach real and personal property assets of a Defendant in a financial elder abuse case while the case is pending (i.e. before it is resolved on its merits).  This allows a Plaintiff to have “security” in the event they win the lawsuit as they will have assets already attached that they can collect on.  A writ of attachment prevents the defendant(s) from transferring or encumbering the attached property, and this could promote an early settlement in the case.  The writ of attachment is especially useful for the shifty Defendant that likes to hide or conceal assets.

SAMPLE CASELAW EXPLAINING THE CONCEPT:

In an unreported Federal Court case the Court held:

Plaintiffs argue that they are also entitled to a writ of attachment pursuant to California Welfare and Institutions Code Section 15657.01, which provides: “Notwithstanding Section 483.010 of the Code of Civil Procedure (“C.C.P.”), an attachment may be issued in any action for damages pursuant to Section 15657.5 for financial abuse of an elder or dependent adult, as defined in Section 15610.30. The other provisions of the California Code of Civil Procedure not inconsistent with this article shall govern the issuance of an attachment pursuant to this section.” Section 483.010(a) of the C.C.P. provides, “Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.” Thus, although no court has yet construed section 15657.01, it would appear to relieve Plaintiffs of proving that their claim is founded on contract. This interpretation is consistent with the legislative history of the statute. See Legislative Counsel’s Digest, S.B. 611, 2007 Cal. Legis. Serv. Ch. 45 (“Under the Attachment Law, a plaintiff is authorized to use the remedy of attachment against a defendant’s property to secure the amount of the claimed indebtedness to the plaintiff in connection with cases involving contracts This bill would also permit the use of the Attachment Law in cases involving financial abuse against an elder or dependent adult, whether or not other forms of relief are demanded.”).

See Novus Optimum Labs v. Tamayo WL3354566 (N.C. July 2013).

Writ of Attachment Process

1.  Conduct an asset search of all Defendants (this can be done before of after you file the lawsuit).  An asset search will tell you what assets a Defendant might own.  For examples, cars, trucks, boat, RV’s, real property, etc.  If you need help getting an asset search contact us using the contact form below.

2.  File your complaint with the proper state or federal court (watch the video above – you may want to file a verified complaint).

3.  Fill out the forms for writ of attachment (see judicial council forms section below), and submit the entire application package including:

       a.  legal description of property to be attached

       b.  description of any bank accounts or personal property you are seeking to attach

      c.  evidence showing you have a likelihood to succeed on the merits of the financial elder abuse case (ex. declarations of Plaintiff and counsel laying a foundation for admissible evidence)

4.  Decide whether you want to give notice to all parties, or make an ex parte appearance (without the other parties attending and having the ability to oppose your application).  Ex parte will normally require some evidence that one or more Defendants may transfer assets, or that Defendants assets may be impaired.

5.  Prepare for, attend and win your hearing (a bond of $10,000 or more will likely be required to be posted or the attachment order may be deemed null and void).

Attorney Steve tip:  In order to win your hearing and get the writ order signed, a Plaintiff will need to prove the probable validity of the elder abuse claim.  In Kemp Bros. Const. v. Titan Elec. Corp., 146 Cal. App. 4th 1474, 1476, 53 Cal. Rptr. 3d 673, 674-75 (2007) the Court of appeals explained:

“Attachment is an ancillary or provisional remedy to aid in the collection of a money demand by seizure of property in advance of trial and judgment…..California’s Attachment Law (Code Civ. Proc., § 482.010 et seq.) is purely statutory and is strictly construed. (Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 270, 254 Cal.Rptr. 748.) As germane here, a plaintiff seeking a right to attach order must show “ ‘the probable validity’ ” of its claim.  A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”

6.  The judge will issue an Order for Attachment, and the Order of attachment should be given to the sheriff in each county where Defendant(s) has assets.

7.  The sheriff can levy any property set forth in the Order, and a proof of service should be filed with the Court upon doing so.

Check with your Court to determine which department hears writs, and an what day they hear them.  This will save you considerable time and trouble showing up on the wrong day.  If it is a “noticed hearing” make sure to follow the rules for setting a motion on calendar.  You can watch our video on California CCP 1005 timing for motions here.

Bond requirement

If you are able to convince the judge that your case warrants getting an order for writ of attachment you will likely be ordered to post a civl bond of $7,500 to $10,000 or more per the judges discretion.  This protects a Defendant from a wrongful attachment where the Plaintiff eventually loses the case.  Here is a case discussing this point.  In Vershbow v. Reiner, 231 Cal. App. 3d 879, 882, 282 Cal. Rptr. 684 (Ct. App. 1991) the Court noted:

“Our starting point is the rule that the Attachment Law statutes (Code Civ. Proc., § 481.010 et seq.) are subject to strict construction because they are purely the creation of the Legislature. The attachment statutes at issue here clearly require the posting of an undertaking prior to issuance of a writ of attachment. Section 484.520 permits the trial court, upon application by a party, to order a writ of attachment to be issued “upon the filing of an undertaking as provided by Sections 489.210 and 489.220.” Section 489.210 reads, “Before issuance of a writ of attachment, … the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action. Section 489.220 provides that the amount of the undertaking shall be $7,500 in an action in the superior court. Vershbow does not dispute that she failed to file an undertaking of $7,500 before the issuance of the writ of attachment.”

Judicial Council Forms – writ of attachment

Here are some of the judicial counsel forms that you can use FREE OF CHARGE.

1.  TA – 105 application for right to attach order

2.  TA – 120 right to attach order (after hearing)

3.  TA – 125 right to attach order and issuance of a writ  of attachment ex parte

4.  TA – 130 right to attach order

5.  TA – 135 writ of attachment

 Additional Resources

Click here for the Arizona writ of attachment process (video).

Contact a California Financial Elder Abuse Law Firm

We have helped many senior citizens advocate and vindicate their rights against predatory kids, real estate brokers, real estate attorneys, car dealers, insurance brokers, and others.  We have offices in California and Arizona and handle these cases state-wide in each state.  We can take many cases on a full or partial contingency fee basis. Contact us for details by calling (877) 276-5084.  The initial consultation is provided no charge. You may also fill out the contact form below to have one of our elder abuse lawyers contact you, usually with the hour.  Please leave you phone number.

 

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