By Vann Attorneys, PLLC
Most businesses and business people are all too familiar with the protracted exercise that is involved when attempting to collect on a judgment. Few, however, are as familiar with two potentially powerful methods that can be used before entry of a judgment and may alleviate the need for drawn out post-judgment execution proceedings.
Claim and Delivery
Claim and delivery allows a plaintiff to recover personal property from the defendant long before a judgment. If a defendant is wrongfully in possession of some item, the clerk may issue an order directing the sheriff to seize the property from the defendant and deliver it to the plaintiff. The plaintiff must have some valid interest in the property, such as ownership or a valid security interest, and must file a lawsuit for the recovery of the property.
Without having to wait for a judgment in that suit, however, the plaintiff can move for an order in claim and delivery. This process requires notice to the defendant and a hearing before the clerk. The notice will include an order forbidding the defendant from disposing of, damaging, or destroying the property, or from moving it out of North Carolina. At the hearing, the clerk determines whether to issue an order to the sheriff for the seizure of the property. Before the sheriff will seize the property, however, the plaintiff must post a bond at twice its value, and before the sheriff will deliver the property, the plaintiff must pay the sheriff’s fees and costs. Both of these requirements can make the claim and delivery process extremely expensive. However, if the main goal is the recovery of the property, a claim and delivery allows that to happen much more quickly than waiting for a judgment in the underlying lawsuit.
Attachment is a procedure used to bring the defendant’s property within the legal custody of the court so that it is available to satisfy a judgment which may be rendered against the plaintiff. The concept of attachment may be as old as Ancient Rome and has been known to the English legal system since at least 1482. It is used today in cases where the defendant is either a non-resident or a foreign corporation, or is trying to remove property from the state, or hiding or destroying assets to defraud its creditors. Like the claim and delivery, this process is usually started at the beginning of a lawsuit and is often decided by the clerk. Unlike the claim and delivery, it can be used in any case where the plaintiff is seeking a money judgment and applies to any property owned by the defendant (not just a particular item of personal property). The attachment process also allows a plaintiff to intercept payments owed to the defendant by other parties and have them available to satisfy an eventual judgment.
Claim and delivery and attachment can each be a powerful tool when used efficiently and effectively, but each also has strict requirements that must be met and procedures that must be followed to be successful. If you have questions, please feel free to contact us.
An updated article, 'Prejudgment Attachment', can be found here: https://vannattorneys.com/prejudgment-attachment-when-and-how-can-a-creditor-obtain-an-attachment-order/