Attachment Law

Code of Civil Procedure Part 2, Title 6.5, Chapter 2 provides general provisions regarding the use of attachments in civil actions. Section 482.010 names Chapter 2 as “The Attachment Law.”

Section 482.030 allows the Judicial Council to provide by rule for the practice and procedure in proceedings under this title. And, the Judicial Council is required to prescribe the form of the applications, notices, orders, and other documents required by this title.

Section 482.040 requires the facts stated in each affidavit filed to be set forth with particularity. Each affidavit must show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated.

Section 482.050 states that, if the plaintiff so requests in writing at the time he files his complaint, the clerk of the court with whom the complaint is filed cannot make available to the public the records and documents in the action before either (1) 30 days after the filing of the complaint or (2) the filing pursuant to this title of the return of service of the notice of hearing and any temporary protective order, or of the writ of attachment if issued without notice, whichever event occurs first.

Section 482.060 provides the judicial duties to be performed under this title are subordinate judicial duties may be performed by appointed officers such as court commissioners. The judicial duties to be performed in the determination of four specified matters are not subordinate judicial duties.

Section 482.070 provides legal process required or permitted to be served under this title may be served personally or by mail. The terms “legal process,” “judgment debtor,” “judgment creditor,” “writ,” and “notice of levy” are defined. If the defendant has not appeared in the action and legal process is required to be personally served on the defendant under this title, service must be made in the same manner as a summons is served.

Section 482.080 provides, if a writ of attachment is issued, the court may also issue an order directing the defendant to transfer to the levying officer either or both of the specified possessions. And, the order is personally served on the defendant and contain a notice to the defendant that failure to comply with the order may subject the defendant to arrest and punishment for contempt of court.

Section 482.090 explains several writs in the same form may be issued simultaneously or from time to time upon the same undertaking, whether or not any writ previously issued has been returned. After the return of the writ of attachment, or upon the filing by the plaintiff of an affidavit setting forth the loss of the writ of attachment, the clerk, upon demand of the plaintiff at any time before judgment, may issue an alias writ which must be in the same form as the original without requirement of a new undertaking.

Section 482.100 allows the defendant to claim an exemption for property levied upon pursuant to a writ issued under this title if the right to the exemption is the result of a change in circumstances occurring after (1) the denial of a claim of exemption for the property earlier in the action or (2) the expiration of the time for claiming the exemption earlier in the action. A claim of exemption under this section must follow the procedure provided, with exceptions. The exemption may be claimed at the defendant’s option by following the procedure provided in this subdivision.

Section 482.110 allows the plaintiff’s application for a right to attach order and a writ of attachment to include an estimate of the costs and allowable attorney’s fees. In the discretion of the court, the amount to be secured by the attachment may include an estimated amount for costs and allowable attorney’s fees.

Section 482.120 states, if the court determines at the hearing on issuance of a writ of attachment under this title that the value of the defendant’s interest in the property described in the plaintiff’s application clearly exceeds the amount necessary to satisfy the amount to be secured by the attachment, the court may direct the order of levy on the property described in the writ or restrict the amount of the property to be levied upon.