Seizure is the method of levy for personal property in a defendant’s going concern (business). Property levied under a writ of attachment is held by the Sheriff until the lawsuit is adjudicated. Ordinarily, the defendant has the opportunity to attend a hearing to oppose the issuance of a writ of attachment. However, the court may issue a writ of attachment ex parte without notice to the defendant under certain circumstances. The Sheriff places a keeper (custodian) in the business to collect sales proceeds, prevent the removal of any stock-in-trade and to prepare an inventory. The property is moved to storage at the end of two days (if the defendant is corporation, partnership, LLC, etc.) or ten days (if the defendant is a natural person). The Sheriff holds all monies and property pending the outcome of the lawsuit. Equipment of the business is not subject to seizure as a lien filed with the Secretary of State is the proper method of levy.

Property that is not in the possession of the defendant cannot be seized if the Sheriff determines that the property is the possession of a third party and not in the possession of the defendant.

The Sheriff must serve a copy of the writ of attachment, order for issuance of the writ and notice of attachment on the defendant. If the defendant has an attorney of record, service must be made on the attorney rather than the defendant. If the writ of attachment was issued ex parte and the defendant did not appear in the action, e.g., defendant did not file a response with the court, the service must be made in the same manner as a summons. Otherwise, service may be made by mail. Consequently, the instructions to the Sheriff must provide the name and address of the defendant’s attorney, if any, and indicate whether the defendant has appeared in the action (if the writ was issued ex parte.)

The plaintiff must make an advance deposit with the Sheriff to cover levy fees and moving and storage costs. The Sheriff’s levy fees will vary depending on the number of keepers utilized and the duration of the levy. The plaintiff should call the Sheriff to determine the levy fee amount and to obtain the name and telephone number of a moving and storage company. The Sheriff’s instructions must include an estimate for moving and 30 days storage and the name and telephone number of the moving company employee who provided the quote. The advanced fee deposit is the total of the Sheriff’s levy fees plus the estimated costs for moving and storage.