Code of Virginia

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Code of Virginia
Title 8.01. Civil Remedies and Procedure
Chapter 20. Attachments and Bail in Civil Cases
11/28/2021

Article 1. Attachments Generally.

§ 8.01-533. Who may sue out attachment.

If any person has a claim, legal or equitable, to (i) any specific personal property, (ii) any debt, including rent, whether the debt is due and payable or not, (iii) damages for breach of any contract, express or implied, or (iv) damages for a wrong, or for a judgment for which no supersedeas or other appeal bond has been posted, he may sue out an attachment therefor on any one or more of the grounds stated in § 8.01-534. However, if the claim is for a debt not due and payable, no attachment shall be sued out when the only ground for the attachment is that the defendant or one of the defendants is a foreign corporation, or is not a resident of this Commonwealth, and has estate or debts owing to him within this Commonwealth.

Code 1950, § 8-519; 1954, c. 333; 1977, c. 617; 1986, c. 341; 1993, c. 841.

§ 8.01-534. Grounds of action for pretrial levy or seizure of attachment.

A. It shall be sufficient ground for an action for pretrial levy or seizure or an attachment that the principal defendant or one of the principal defendants:

1. Is a foreign corporation, or is not a resident of this Commonwealth, and has estate or has debts owing to such defendant within the county or city in which the attachment is, or that such defendant being a nonresident of this Commonwealth, is entitled to the benefit of any lien, legal or equitable, on property, real or personal, within the county or city in which the attachment is. The word "estate," as herein used, includes all rights or interests of a pecuniary nature which can be protected, enforced, or proceeded against in courts of law or equity;

2. Is removing or is about to remove himself out of this Commonwealth with intent to change his domicile;

3. Intends to remove, or is removing, or has removed the specific property sued for, or his own estate, or the proceeds of the sale of his property, or a material part of such estate or proceeds, out of this Commonwealth so that there will probably not be therein effects of such debtor sufficient to satisfy the claim when judgment is obtained therefor should only the ordinary process of law be used to obtain the judgment;

4. Is converting, is about to convert or has converted his property of whatever kind, or some part thereof, into money, securities or evidences of debt with intent to hinder, delay, or defraud his creditors;

5. Has assigned or disposed of or is about to assign or dispose of his estate, or some part thereof, with intent to hinder, delay or defraud his creditors;

6. Has absconded or is about to abscond or has concealed or is about to conceal himself or his property to the injury of his creditors, or is a fugitive from justice.

The intent mentioned in subdivisions 4 and 5 above may be stated either in the alternative or conjunctive.

B. It shall be sufficient ground for an action for pretrial levy or seizure or an attachment if the specific personal property sought to be levied or seized:

1. Will be sold, removed, secreted or otherwise disposed of by the defendant, in violation of an obligation to the plaintiff, so as not to be forthcoming to answer the final judgment of the court respecting the same; or

2. Will be destroyed, or materially damaged or injured if permitted to remain in the possession of the principal defendant or one of the principal defendants or other person or persons claiming under them.

C. In an action for rent, it also shall be a sufficient ground if there is an immediate danger that the property subject to the landlord's lien for rent will be destroyed or concealed.

Code 1950, § 8-520; 1954, c. 333; 1977, c. 617; 1993, c. 841.

§ 8.01-535. Jurisdiction of attachments; trial or hearing of issues.

Except as provided in § 16.1-77 the jurisdiction of attachments under this chapter shall be in the circuit courts. The trial or hearing of the issues, except as otherwise provided, shall be the same, as near as may be, as in actions in personam.

Code 1950, § 8-521; 1954, c. 333; 1977, c. 617.

§ 8.01-536. Pleadings in attachment.

No pleading on behalf of the plaintiff shall be necessary except the petition mentioned in § 8.01-537. The principal defendant, and any other defendant who seeks to defeat the petitioner's attachment, may demur to the petition, issue on which demurrer shall be deemed to be joined; but if such demurrer be overruled, such defendant shall answer the petition in writing. No replication shall be necessary to such answer. The answer shall be sworn to by such defendant, or his agent. Any other defendant may answer the petition, under oath, and the cause shall be deemed at issue as to him, if he denies any of the allegations of the petition, without any replication. Answers under this section shall not have the effect of evidence for the defendant.

Code 1950, § 8-523; 1977, c. 617.

§ 8.01-537. Petition for attachment; costs, fees and taxes.

A. Every attachment shall be commenced by a petition filed before a clerk of a circuit or general district court of, or magistrate serving, the county or city in which venue is given by subdivision 11 of § 8.01-261. If it is sought to recover specific personal property, the petition shall state (i) the kind, quantity, and estimated fair market value thereof, (ii) the character of estate therein claimed by the plaintiff, (iii) the plaintiff's claim with such certainty as will give the adverse party reasonable notice of the true nature of the claim and the particulars thereof and (iv) what sum, if any, the plaintiff claims an entitlement to recover for its detention. If it is sought to recover a debt or damages for a breach of contract, express or implied, or damages for a wrong, the petition shall set forth (i) the plaintiff's claim with such certainty as will give the adverse party reasonable notice of the true nature of the claim and the particulars thereof, (ii) a sum certain which, at the least, the plaintiff is entitled to, or ought to recover, and (iii) if based on a contract and if the claim is for a debt not then due and payable, at what time or times the same will become due and payable. The petition shall also allege the existence of one or more of the grounds mentioned in § 8.01-534, and shall set forth specific facts in support of the allegation. The petition shall ask for an attachment against the specific personal property mentioned in the petition, or against the estate, real and personal, of one or more of the principal defendants, or against the estate, real and personal, of one or more of the principal defendants, or against both the specific personal property and the estate of such defendants, real or personal. The petition shall state whether the officer is requested to take possession of the attached tangible personal property. The petition shall be sworn to by the plaintiff or the plaintiff's agent, or some other person cognizant of the facts therein stated.

B. The plaintiff praying for an attachment shall, at the time the petition is filed, pay to the magistrate or clerk of the court to which the return is made the proper costs, fees and taxes, and in the event the plaintiff fails to do so, the attachment shall not be issued.

Code 1950, §§ 8-524, 8-528; 1954, cc. 333, 622; 1973, c. 545; 1977, c. 617; 1978, c. 418; 1984, c. 646; 1993, c. 841; 2008, cc. 551, 691; 2015, c. 639.

§ 8.01-537.1. Plaintiff to file bond.

A. The plaintiff or someone for him shall, at the time of suing out an attachment or other pretrial levy or seizure, give bond. The fact that bond has been given shall be endorsed on the process, or certified by the clerk to the serving officer. If certified by the clerk, the serving officer shall return the certificate with the process. The bond shall be a bond with approved surety, a cash bond or a property bond.

B. If the plaintiff seeks only pretrial levy on property and a bond with approved surety or cash bond is posted, the amount of the bond shall be at least the estimated fair market value of the property to be levied. If a property bond is posted, the amount of the bond shall be at least double the estimated fair market value of the property to be levied.

C. If the plaintiff seeks pretrial seizure of property, the amount of the bond shall be at least double the estimated fair market value of the property to be seized.

D. The bond shall contain a condition to pay all costs and damages which may be awarded against the plaintiff, or sustained by any person, by reason of a wrongful levy or seizure.

1984, c. 646; 1993, c. 841.

§ 8.01-538. Attachment of ships, boats and other vessels of more than twenty tons.

No attachment against any ship, boat, or other vessel of more than twenty tons, shall issue unless the plaintiff or someone in his behalf, shall first establish, to the satisfaction of the court in which he files his petition for attachment that he has a reasonable expectation of recovering an amount exclusive of all costs, equal to at least one-half the damages demanded in the petition for attachment. Reasonable notice of appearance before the court shall be given the owner, agent or master of said vessel, and at the time of the appearance the court shall determine the amount of such reasonable expectation of recovery and the amount of bond necessary to secure the release of the vessel if and when a writ be levied in accordance with this section.

No attachment issued in violation of the provisions of this section shall create a valid lien upon the property sought to be attached, and no levy made under authority thereof shall be of any effect.

Code 1950, § 8-524.1; 1954, c. 254; 1977, c. 617.

§ 8.01-539. Who made defendants.

A person against whom the plaintiff is asserting the claim shall be made a defendant to the petition, and shall be known as a principal defendant. There shall also be made a defendant any person indebted to or having in his possession property, real or personal, belonging to a principal defendant, which is sought to be attached. There may also be made a defendant any person claiming title to, and interest in, or a lien upon the property sought to be attached. A defendant, other than a principal defendant, shall be known as a codefendant.

Code 1950, § 8-525; 1977, c. 617.

§ 8.01-540. Issuance of attachment; against what attachment to issue.

A judge of, or a magistrate serving, the court in which a petition for attachment is filed shall make an ex parte review of the petition. The judge or magistrate shall issue an attachment in accordance with the prayer of the petition only upon a determination that (i) there is reasonable cause to believe that grounds for attachment may exist and (ii) the petition complies with §§ 8.01-534, 8.01-537, and 8.01-538. The judge or magistrate may receive evidence only in the form of a sworn petition which shall be filed in the office of the clerk of the court. If the plaintiff seeks the recovery of specific personal property, the attachment may be (i) against such property and against the principal defendant's estate for so much as is sufficient to satisfy the probable damages for its detention or (ii) at the option of the plaintiff, against the principal defendant's estate for the value of the specific property and the damages for its detention. If the plaintiff seeks to recover a debt or damages for the breach of a contract, express or implied, or damages for a wrong, the attachment shall be against the principal defendant's estate for the amount specified in the petition as that which the plaintiff at the least is entitled to or ought to recover.

If the attachment is issued by a magistrate, it shall be returnable as prescribed by § 8.01-541. The magistrate shall promptly return to the clerk's office of the court to which the attachment is returnable the petition and the bond, if any, filed before him. The proceedings thereafter shall be the same as if the attachment had been issued by a judge.

Code 1950, § 8.526; 1954, c. 254; 1977, c. 617; 1984, c. 646; 1993, c. 841; 2008, cc. 551, 691.

§ 8.01-541. To whom attachments directed; when and where returned.

Any attachment issued under this chapter may be directed to the sheriff of any county or city. Except when otherwise provided, it shall be returnable to the office of the clerk of court wherein the petition has been filed not more than thirty days from its date of issuance.

Code 1950, § 8-527; 1954, c. 333; 1977, c. 617; 1993, c. 841.

§ 8.01-542. Issue and execution of attachment on any day.

Such attachment may be issued or executed on any day, including a Sunday or holiday.

Code 1950, § 8-529; 1977, c. 617.

§ 8.01-543. Issue of other attachments on original petition.

Upon the written application of the plaintiff, his agent or attorney, other attachments founded on the original petition may be issued from time to time by the clerk of the court in which the original attachment is pending, and the same may be directed, executed, and returned in like manner as an original attachment. However, the clerk shall not issue an attachment where new or additional grounds of attachment are relied upon or where any ship, boat or vessel of more than twenty tons is sought to be attached.

If new or additional grounds of attachment are relied on, the plaintiff may amend his petition in accordance with Rule of Court 1:8 according to the facts and swear to the same. Except as otherwise provided in this section, an additional attachment as prayed for shall be issued by a judge or magistrate only upon his determination that (i) there is reasonable cause to believe that the grounds for attachment may exist and (ii) that the amended petition complies with §§ 8.01-534 and 8.01-537. Where any ship, boat, or other vessel of more than twenty tons is sought to be attached, a judge or magistrate shall issue the additional attachment only on his determination that § 8.01-538 has been complied with. The cause shall proceed, under the provisions of this chapter, upon the petition as amended.

The court shall adjudge the costs of such attachments as it deems proper.

The following, or its equivalent, shall be a sufficient form of application for an additional attachment:

To A.B., clerk of the __________ court of __________ county (or city): In the case of __________ v. __________, on an attachment, an additional attachment and summons is requested to be issued against __________ X.Y. (or X.Y. by H., attorney or agent, as the case may be).

Code 1950, § 8-530; 1977, c. 617; 1984, c. 646.

§ 8.01-544. When attachment not served other attachments may issue; order of publication.

When an attachment is returned not served on a principal defendant, whether levied on property or not, further attachments and summonses may be issued until service is obtained on him, if he be a resident of the Commonwealth. If for any cause service cannot be had in the Commonwealth, upon affidavit of that fact, an order of publication shall be made against him.

Code 1950, § 8-531; 1977, c. 617.

§ 8.01-545. Amendments; formal defects.

Such amendments shall be allowed of the petition, answer and of any of the other proceedings in the attachment as shall be conducive to the attainment of the ends of substantial justice, and upon such terms as to continuance and costs as may seem proper. An amendment when made shall as against the principal defendant and as to claims against him existing at the time the attachment was issued relate back to the time of the levy of the attachment, unless otherwise directed. No attachment shall be quashed or dismissed for mere formal defects.

Code 1950, § 8-532; 1977, c. 617.