28 U.S.C. § 3102 — Attachment
submitted 36 years ago by Pub. L. 101-647 to r/title-28-JUDICIARY-AND-JUDICIAL-PROCEDURE · 1,545 words · no verdicts yet
This section identifies property that may secure a United States debt claim through attachment and sets limits on its value. It explains how a court issues and enforces the writ, how the lien works, how a debtor may challenge it, and what happens after judgment.
(a) Property subject to attachment. (1) Property in the debtor’s possession, custody, or control in which the debtor has a substantial nonexempt interest, other than earnings, may be attached in a debt action and held as security for the judgment, interest, and costs the United States may recover. (2) Attached property may not exceed the debt plus reasonably likely interest and costs minus the debtor’s nonexempt interest in property securing the debt and in property garnished, in receivership, or income sequestered under this subchapter. (b) Availability. If section 3101’s requirements are met, the court must issue a writ authorizing attachment of property with a substantial nonexempt interest when the United States seeks a debt claim: (1) in an express or implied money contract, only if the United States reasonably believes the contract is not fully secured by real or personal property or the original security has substantially lost value without the United States’ or secured person’s act; (2) in a tort-damages action; (3) when the debtor lives outside United States jurisdiction; or (4) to recover a fine, penalty, or tax. (c) The court’s writ directs the marshal where the property is located to attach it. Multiple writs may go to different districts until enough property is attached. The writ must state its issue date, court, docket number and cause of action, debtor’s name and last known address, amount secured, and a reasonable description of the property. (d) The marshal must promptly levy on specified property found in the district* but may not sell it without a court order. The marshal may enter property owned, occupied, or controlled by the debtor, but not a residence or other building unless the writ or a specific court order allows entry. A real-property levy is made by entering and posting the writ and levy notice conspicuously. A personal-property levy is made by taking possession; if that is impractical or very costly, by affixing the writ and notice on the property or nearby and describing it sufficiently. The marshal files the notice as section 3201(a)(1) requires and serves the writ and notice on the debtor and the person possessing the property as a civil summons is served, then makes the return. (e) Within 5 days after levy, the executing marshal must return the signed writ to the issuing court with the marshal’s actions endorsed or attached. The return must identify the property, location, date and time of levy, and disposition, or say that none was attached. If property is claimed, replevied under (j)(2), or sold under section 3007 after the return, the marshal must immediately file a further return. If personal property is replevied, the marshal gives the replevin bond to the clerk for filing. (f) A levy creates a United States lien on the property, or on sale proceeds for perishable property sold under section 3007. It outranks security interests perfected after the later of levy or filing the notice. It begins at levy and continues until judgment, denial of judgment, or dismissal. The debtor’s death does not end it. A judgment lien registered under this chapter relates back to levy. (g) If attachment is excessive or unreasonable, the debtor may move to reduce or dissolve it and must serve the United States. After a hearing, the court must release part of the property if the attachment is excessive or unreasonable or exceeds the liquidated or calculable debt plus likely interest and costs. The court must dissolve it when the debt cannot be calculated. If exempt property is levied on, the debtor may ask at any time to vacate the levy; if exempt, the court must vacate it and return the property. (h) Before judgment, if attached property has not been sold, the debtor may replevy all or part by giving a bond approved by United States counsel or the court, payable to the United States for twice the property’s reasonable value or twice the claim, whichever is less. (i) If personal property held by the marshal is not replevied, claimed, or sold, the court may order its preservation or use in the parties’ interests. (j)(1) After judgment for the United States, the court must apply proceeds from section 3007 sales to the judgment and order sale of remaining personal property and levied real property as needed. (2) For replevied personal property, judgment may be against the debtor and the replevin-bond sureties for the property’s value. (3) If attachment is vacated or judgment favors the person against whom the writ issued, the court must return the property or applicable sale proceeds and release the replevin bond.
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.
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—
property securing the debt; and
property garnished or in receivership, or income sequestered, under this subchapter.
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—
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—
the contract is not fully secured by real or personal property; or
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;
in an action against the debtor for damages in tort;
if the debtor resides outside the jurisdiction of the United States; or
in an action to recover a fine, penalty, or tax.
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.
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.
The writ of attachment shall contain—
the date of the issuance of the writ;
the identity of the court, the docket number of the action, and the identity of the cause of action;
the name and last known address of the debtor;
the amount to be secured by the attachment; and
a reasonable description of the property to be attached.
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.
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.
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.
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.
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—
the debtor against whom the writ is issued; and
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
The court shall dissolve the attachment if the amount of the debt is unliquidated and unascertainable by calculation.
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.
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.
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.
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.
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.
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.
Source credit: (Added Pub. L. 101–647, title XXXVI, § 3611, Nov. 29, 1990, 104 Stat. 4942.)
- 1990Enacted · Pub. L. 101-647 · 104 Stat. 4942
A history note hasn’t been published yet. The record shows enactment by Pub. L. 101-647 on 1990-11-29.
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