PRIA, Government Policy, Made Personal

Summary

A court can order the United States to seize a debtor’s property as security for a debt. The property must be in the debtor’s control and the debtor must have a substantial nonexempt interest in it. Wages are not allowed to be taken. The value held cannot be more than the debt plus likely interest and costs, after subtracting the value of any property already securing the debt or already garnished or in receivership. The court will only issue the order if earlier required steps are met and in certain cases, like contract money claims (when the contract isn’t fully secured or the security has lost value), tort claims, debts by someone living outside the U.S., or fines, penalties, or taxes. A U.S. marshal carries out the seizure using a court order called a writ. The writ must identify the court, case, debtor, date, amount to be secured, and describe the property. The marshal may enter the debtor’s property but cannot enter a home unless the writ or court allows it. Real property is levied by posting notice; personal property is taken or, if that’s impractical, a notice is attached. The marshal must file and serve notices and must return the writ to the court within 5 days after the levy, describing what was done. The levy creates a lien for the United States that lasts until judgment or dismissal. A debtor can ask the court to reduce or end an excessive attachment or get exempt property back. Before sale, a debtor may reclaim property by posting a bond equal to twice the property’s reasonable value or twice the claim, whichever is less. If the United States wins, the court may order sale or apply proceeds to satisfy the judgment; if the debtor wins, property or proceeds are returned and any bond released.

Title 28, §3102

Judiciary and Judicial Procedure, Source: USLM XML via OLRC

(a)Property Subject to Attachment.—

(1)Any property in the possession, custody, or control of the debtor and in which the debtor has a substantial nonexempt interest, except earnings, may be attached pursuant to a writ of attachment in an action or proceeding against a debtor on a claim for a debt and may be held as security to satisfy such judgment, and interest and costs, as the United States may recover on such claim.

(2)The value of property attached shall not exceed the amount by which the sum of the amount of the debt claimed by the United States and the amount of interest and costs reasonably likely to be assessed against the debtor by the court exceeds the aggregate value of the nonexempt interest of the debtor in any—

(A)property securing the debt; and

(B)property garnished or in receivership, or income sequestered, under this subchapter.

(b)Availability of Attachment.—

If the requirements of section 3101 are satisfied, a court shall issue a writ authorizing the United States to attach property in which the debtor has a substantial nonexempt interest, as security for such judgment (and interest and costs) as the United States may recover on a claim for a debt—

(1)in an action on a contract, express or implied, against the debtor for payment of money, only if the United States shows reasonable cause to believe that—

(A)the contract is not fully secured by real or personal property; or

(B)the value of the original security is substantially diminished, without any act of the United States or the person to whom the security was given, below the amount of the debt;

(2)in an action against the debtor for damages in tort;

(3)if the debtor resides outside the jurisdiction of the United States; or

(4)in an action to recover a fine, penalty, or tax.

(c)Issuance of Writ; Contents.—

(1)Subject to subsections (a) and (b), a writ of attachment shall be issued by the court directing the United States marshal of the district where property described in subsection (a) is located to attach the property.

(2)Several writs of attachment may be issued at the same time, or in succession, and sent to different judicial districts until sufficient property is attached.

(3)The writ of attachment shall contain—

(A)the date of the issuance of the writ;

(B)the identity of the court, the docket number of the action, and the identity of the cause of action;

(C)the name and last known address of the debtor;

(D)the amount to be secured by the attachment; and

(E)a reasonable description of the property to be attached.

(d)Levy of Attachment.—

(1)The United States marshal receiving the writ shall proceed without delay to levy upon the property specified for attachment if found within the district. The marshal may not sell property unless ordered by the court.

(2)In performing the levy, the United States marshal may enter any property owned, occupied, or controlled by the debtor, except that the marshal may not enter a residence or other building unless the writ expressly authorizes the marshal to do so or upon specific order of the court.

(3)Levy on real property is made by entering the property and posting the writ and notice of levy in a conspicuous place upon the property.

(4)Levy on personal property is made by taking possession of it. Levy on personal property not easily taken into possession or which cannot be taken into possession without great inconvenience or expense may be made by affixing a copy of the writ and notice of levy on it or in a conspicuous place in the vicinity of it describing in the notice of levy the property by quantity and with sufficient detail to identify the property levied on.

(5)The United States marshal shall file a copy of the notice of levy in the same manner as provided for judgments in section 3201(a)(1). The United States marshal shall serve a copy of the writ and notice of levy on—

(A)the debtor against whom the writ is issued; and

(B)the person who has possession of the property subject to the writ;

in the same manner that a summons is served in a civil action and make the return thereof.

(e)Return of Writ; Duties of Marshal; Further Return.—

(1)A United States marshal executing a writ of attachment shall return the writ with the marshal’s action endorsed thereon or attached thereto and signed by the marshal, to the court from which it was issued, within 5 days after the date of the levy.

(2)The return shall describe the property attached with sufficient certainty to identify it and shall state the location where it was attached, the date and time it was attached, and the disposition made of the property. If no property was attached, the return shall so state.

(3)If the property levied on is claimed, replevied under subsection (j)(2), or sold under section 3007 after the return, the United States marshal shall immediately make a further return to the clerk of the court showing the disposition of the property.

(4)If personal property is replevied, the United States marshal shall deliver the replevin bond to the clerk of the court to be filed in the action.

(f)Levy of Attachment as Lien on Property; Satisfaction of Lien.—

(1)A levy on property under a writ of attachment under this section creates a lien in favor of the United States on the property or, in the case of perishable property sold under section 3007, on the proceeds of the sale.

(2)Such lien shall be ranked ahead of any other security interests perfected after the later of the time of levy and the time a copy of the notice of levy is filed under subsection (d)(5).

(3)Such lien shall arise from the time of levy and shall continue until a judgment in the action is obtained or denied, or the action is otherwise dismissed. The death of the debtor whose property is attached does not terminate the attachment lien. Upon issuance of a judgment in the action and registration under this chapter, the judgment lien so created relates back to the time of levy.

(g)Reduction or Dissolution of Attachment.—

(1)If an excessive or unreasonable attachment is made, the debtor may submit a motion to the court for a reduction of the amount of the attachment or its dissolution. Notice of such motion shall be served on the United States.

(2)The court shall order a part of the property to be released, if after a hearing the court finds that the amount of the attachment is excessive or unreasonable or if the attachment is for an amount larger than the sum of the liquidated or ascertainable amount of the debt and the amount of interest and costs likely to be taxed.

(3)The court shall dissolve the attachment if the amount of the debt is unliquidated and unascertainable by calculation.

(4)If any property claimed to be exempt is levied on, the debtor may, at any time after such levy, request that the court vacate such levy. If it appears to the court that the property so levied upon is exempt, the court shall order the levy vacated and the property returned to the debtor.

(h)Replevin of Attached Property by Debtor; Bond.—

If attached property is not sold before judgment, the debtor may replevy such property or any part thereof by giving a bond approved by counsel for the United States or the court and payable to the United States in double the reasonable value of the property to be replevied or double the value of the claim, whichever is less.

(i)Preservation of Personal Property Under Attachment.—

If personal property in custody of the United States marshal under a writ of attachment is not replevied, claimed, or sold, the court may make such order for its preservation or use as appears to be in the interest of the parties.

(j)Judgment and Disposition of Attached Property.—

(1)Judgment for the united states.—

On entry of judgment for the United States, the court shall order the proceeds of personal property sold pursuant to section 3007 to be applied to the satisfaction of the judgment, and shall order the sale of any remaining personal property and any real property levied on to the extent necessary to satisfy the judgment.

(2)Judgment for the united states when personal property replevied.—

With respect to personal property under attachment that is replevied, the judgment which may be entered shall be against the debtor against whom the writ of attachment is issued and also against the sureties on the debtor’s replevin bond for the value of the property.

(3)Restoration of property and exoneration of replevin bond.—

If the attachment is vacated or if the judgment on the claim for the debt is for the person against whom the writ attachment is issued, the court shall order the property, or proceeds of perishable property sold under section 3007, restored to the debtor and shall exonerate any replevin bond.

Notes & Related Subsidiaries

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 180 days after Nov. 29, 1990, and applicable with respect to certain actions for debts owed the United States pending in court on that

Effective Date

, see section 3631 of Pub. L. 101–647, set out as a note under section 3001 of this title.

§3102 Attachment

Summary

Title 28, §3102

Notes & Related Subsidiaries

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata