28 U.S.C. § 3102 : US Code - Section 3102: Attachment

Search 28 U.S.C. § 3102 : US Code - Section 3102: Attachment

(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.