Chapter 12 - § 12.4 • ATTACHMENT LIENS
| Jurisdiction | Colorado |
§ 12.4.1—In General
The remedy of attachment exists only by reason of statute or rule of procedure promulgated pursuant to statutory authority.83 Being in derogation of common law, the remedy of attachment must be strictly construed.84 If one desires to attach property in advance of a determination of liability, he must pursue the authorized route to accomplish that end. Attachment proceedings are governed by C.R.C.P. 102, and contain safeguards to protect a defendant. These safeguards cannot be avoided by resort to entry of confession of judgment under a cognovit note.85
A proceeding by way of attachment is in the nature of a proceeding in rem, and the attaching creditor acquires a specific lien upon the property attached. The lien cannot be destroyed except by dissolution of the attachment or by some default of the attaching creditor.86
§ 12.4.2—Actions in Which Attachment May Issue
Any party, at the time of filing a claim, in an action on contract, express or implied, or in an action to recover damages for tort committed against the person or property of a resident of Colorado,87 or at any time after the filing but before judgment, may have nonexempt property of the party against whom the claim is asserted attached by an ex parte order of the court, unless the defendant gives good and sufficient security.88 No ex parte attachments before judgment are permitted other than those specified in C.R.C.P. 102.89
§ 12.4.3—Property Subject to Attachment
The lands, tenements, goods, chattels, rights, credits, moneys, and effects of the defendant of every kind, regardless of in whose hands or possession the same may be found, are subject to attachment.90 The interest of a purchaser under a contract of purchase is subject to attachment.91 An attachment operates only on the right of the debtor that exists at the time of the levy.92 An attachment cannot be levied on the property of one who is not the debtor;93 an attachment levied against the interest of one joint tenant has no effect upon the interest of the other joint tenant.94
§ 12.4.4—Procedure for Issuance and Levy of Attachment
A writ of attachment may issue from any district court or county court of any county to the sheriff or other proper officer of that county or any other county.95 The procedure for the issuance and levy of an attachment is set out in C.R.C.P. 102. Failure to comply with the requirements of the rule renders the attachment void.96
Issuance of Writ
The plaintiff must file in the court in which the action is brought an affidavit setting forth that the defendant is indebted to the plaintiff, or that the defendant is liable in damages to the plaintiff for a tort committed against the person or property of a resident of the state of Colorado,97 stating the nature and amount of the indebtedness or claim for damages and setting forth facts showing one of the causes of attachment.98 No writ of attachment may issue unless it is shown by affidavit or testimony in specific factual detail, within the personal knowledge of an affiant or witness, that there is a reasonable probability that any of the causes exist.99 Before issuance of a writ of attachment, the plaintiff must furnish a bond in an amount set by the court in its discretion,100 not exceeding double the amount claimed, to the effect that if the defendant recover judgment, or if the court finally decides that the plaintiff was not entitled to an attachment, the plaintiff must pay all costs that may be awarded to the defendant, and all damages defendant may sustain by reason of the wrongful suing out of the attachment.101
After the affidavit and bond are filed, the court may issue a writ of attachment, directed to the sheriff of a specified county. If the defendant's property is located in more than one county, additional or alias writs may be issued contemporaneously. Alias writs may issue at any time to the sheriffs of different counties. The writ will command the sheriff to attach the lands, tenements, goods, chattels, rights, credits, moneys, and effects of the defendant, of every kind, or so much as will be sufficient to satisfy the claim sworn to, regardless of in whose hands or possession the same may be found.102 The writ will direct the sheriff to serve a copy of the writ on the defendant if found in the county, and to attach and keep safely all the property of the defendant within the county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's claim.103
Service of Writ
A writ of attachment is served in like manner and under the same conditions as are provided for the service of process; service is deemed completed upon the expiration of the same period as is provided for service of process.104 An attachment which is not perfected during the lifetime of the debtor by service of the writ cannot be perfected by service of the writ upon the debtor's personal representative.105
Levy of Writ
The writ of attachment is executed (1) upon real property standing upon the records of the county in the name of the defendant by filing a copy of the writ, together with a description of the property attached, with the clerk and recorder of the county, and (2)...
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