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Attaching Property to Secure Funds

real-estate

After an individual has been sucessful in the court and has been awarded a sum of money, it can some times be difficult to actually acquire the judge or jury determined amount. For instance, if a plaintiff sues a defendant for fire damage to her household, and a jury determines that the defendant is responsible in the amount of $300,000.00, what happens when the defendant is unable to pay that amount of money? This is a situation that often occurs in the legal world. Not every defendant, or every matter, has a insurance policy in play that would indemnify the defendant from personally paying funds. In these situations there may be an opportunity to attach the defendant’s real estate to secure the debt that is now owed to the plaintiff.

Real property (or real estate) that is located within the Commonwealth of Massachusetts may be subject to attachment. Attachment is a legal process by which a court of law, at the request of a creditor, designates specific property owned by the debtor to be transferred to the creditor, or sold for the benefit of the creditor. When dealing with attachment of personal property (like items and goods) an officer may take possession of the property immediately. However, when dealing with real estate property, this does not necessarily result in the defendant automatically losing possession. However, once an attachment is made and property recorded at the registry of deeds, the world is put on notice that there is a lien on the property.

When a person attaches a defendant’s property at the commencement of a lawsuit, or even during the course of a lawsuit, this will allow the plaintiff to feel assured that the property will be available should he or she receive a favorable judgment. Once an attachment is properly made, it is vital to record this attachment at the registry of deeds. An attachment constitutes a valid lien on a defendant’s property. This will give a plaintiff who records his or her lien priority over an after acquired mortgage, other lien creditors, or later attachments on real property. An attachment that is recorded (also referred to as a “perfected attachment”) may even survive a defendant’s death or subsequent bankruptcy.

Once an attachment is obtained, and after a judge or jury issues a sum of money to a plaintiff, the enforcement of a money judgment is by a writ of execution. This allows a sheriff to levy upon or seize the nonexempt property of the debtor, sell it at auction, and then turn over the resulting proceeds (minus the costs of the sale process) to the creditor. Once judgment is obtained the creditor must preserve the priority of the attachment by levying execution on the attached property within 30 days after issuance of the execution. Because a lot of personal property of a debtor is protected from seizure on execution it will also be protected from attachment. As such, it can often be recommended to attach personal real estate property as oppose to goods and items.

If you have a personal injury lawsuit, attachment of personal property may be a consideration in securing debt owed to you.  To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.