Seizure is the method of levy for personal property in a
defendants 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 defendants 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 Sheriffs
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
Sheriffs 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 Sheriffs levy fees plus the
estimated costs for moving and storage.