What Happens to Writs of Attachment in Bankruptcy?
Experienced California attorney represents debtors and creditors in disputes over attached assets
Creditors have many tools for collecting on debts and one of them is a writ of attachment. This is a court order that secures a debt by placing a lien on particular assets of the debtor. But will that lien survive if the debtor declares bankruptcy? At the Law Offices of Michael Jay Berger, we’ve represented parties on both sides of this complex issue in Southern California bankruptcy cases. We will draw on decades of knowledge to advise you on the best strategy for enforcing your rights and obtaining a favorable outcome.
Requirements for getting a writ of attachment
Creditors owed more than $500 on a business transaction can obtain a writ of attachment if they fulfill these two requirements:
- Demonstrate they are likely to be able to prove the debt in a court proceeding
- Show they are apt to suffer irreparable harm if the court doesn’t approve the writ
Proving the debt is fairly straightforward, as long as the creditor has proper documentation. Irreparable harm may be proved when the debtor’s business appears to be failing and will not be able to repay what is owed. In that case, attaching property can save the creditor from the harm that would occur if the debtor declared bankruptcy. But, ironically, a writ of attachment often leads a debtor to file for bankruptcy in an attempt to remove the attachment.
The difference between secured debt and unsecured debt in bankruptcy
Bankruptcy treats secured debt and unsecured debt differently. When a debt is secured, the creditor has a right to use the property to satisfy the debt, even if the debtor files for bankruptcy. While the bankruptcy discharges the debtor’s obligation to pay, the lender can foreclose and sell the property after the bankruptcy is final. What the lender can’t do is sue the debtor for any deficiency between the sale proceeds and the total debt owed. Unsecured debt, however, is totally discharged in bankruptcy. That means the creditor has no recourse for recovering its losses.
So, if a creditor with unsecured debt is worried about a debtor filing bankruptcy, the creditor will often secure the debt, if possible, by attaching the debtor’s assets, except those that qualify as allowable bankruptcy exemptions under state or federal law. However, the writ by itself does not prove the debtor owes anything. The creditor must still obtain a judgment on the debt, which is known as “perfecting the writ.”
Timing the writ to survive bankruptcy
When a debtor files for bankruptcy, the court issues an automatic stay, halting all efforts by creditors to collect on the debt. Since a writ of attachment is a method of collection, it is also stayed. In fact, writs filed within 90 days prior to the bankruptcy filing will be voided. But even if a creditor got a writ outside the 90-day period, the writ must be perfected within that period to survive the bankruptcy process. That means the creditor must also get a judgment on the debt before the debtor files for bankruptcy.
Contact an accomplished California bankruptcy lawyer to discuss writs of attachment
Based in Beverly Hills, the Law Offices of Michael Jay Berger represents debtors and creditors in disputes over writs of attachment in bankruptcy proceedings throughout Southern California. Call our firm at 310-271-6223 or contact us online.