Filing a Case & Prejudgment Security

In virtually every case that I file, I consider whether we can move for prejudgment security.  Prejudgment security means that by obtaining a court order, you have tied up the defendant’s assets during the pendancy of the litigation such that these assets are (hopefully) available to satisfy your claim when you win the case!  A simple example would be a real estate attachment on the defendant’s real property.  Another example would be to freeze a bank account.  A slightly more complicated procedure would involve reaching an asset in the hands of a third party in which the defendant has an interest, such as a note payable to your defendant.  In Massachusetts, this is called an action to reach and apply.

By moving for prejudgment security, you force the debtor to come to court at the onset of the litigation.  Also, you have an opportunity to test the strength of your claim before the court.  If you succeed in attaching assets, you may obtain sufficient leverage over the debtor to force a settlement on favorable terms.  Additionally, you will put yourself ahead of other creditors who are also seeking to enforce claims against the same defendants. 

Obtaining prejudgment security requires filing a complaint, motion and affidavit setting forth the basis of your claim.  In several instances, I have been successful in obtaining prejudgment security in support of a pending arbitrations, both local and in other jurisdictions.  For example, I obtained a prejudgment attachment of a bank account in connection with an arbitration pending in New York City before the AAA.

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