Legal Memorandum: Prejudgment Attachment Motion in MN

Issue: Under Minnesota law, can a motion for prejudgment attachment be approved in a situation where defendants do not own the property they are seeking to attach?

Area of Law: Litigation & Procedure
Keywords: Prejudgment attachment; Order of attachment; Statutory grounds
Jurisdiction: Minnesota
Cited Cases: 391 N.W.2d 899; 969 F.2d 260; 330 N.W.2d 710; 531 N.W.2d 496; 281 N.W.2d 855
Cited Statutes: Minn. Stat. § 576.026, subd. 3; Minn. Stat. § 570.02; Minn. Stat. § 570.026; Minn. Stat. § 570.011, subd. 3
Date: 10/01/2013

Before a plaintiff may obtain an order for attachment, they must first establish two threshold standards.  “An order for attachment may be issued only if the claimant has demonstrated the probability of success on the merits, and the claimant has demonstrated facts that show the existence of at least one of the grounds stated in section 570.02.”  Minn. Stat. § 576.026, subd. 3.  If, and only if, the plaintiff establishes these two standards, the court is compelled to examine additional considerations that may nonetheless militate against an order of attachment.  Id.

See the following statutory grounds:

An order of attachment that is intended to provide security for the satisfaction of a judgment may be issued only in the following situations:


(1)               when the respondent has assigned, secreted, or disposed of, or is about to assign, secrete, or dispose of, any of the respondent’s nonexempt property, with intent to delay or defraud the respondent’s creditors;

(2)               when the respondent has removed, or is about to remove, any of the respondent’s nonexempt property from this state, with intent to delay or defraud the respondent’s creditors;

(3)               when the respondent has converted or is about to convert any of the respondent’s nonexempt property into money or credits, for the purpose of placing property beyond the reach of the respondent’s creditors; . . . .

Minn. Stat. § 570.02, subd. 1 (emphasis added).  Clearly, by including the word “only” within § 570.02, the legislature intended to limit prejudgment attachment […]

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