Writs of Attachment

Attachments are governed by Chapter 35 of Title 10 of the Delaware Code. Goods, chattels, rights, credits, moneys, effects, lands and tenements may be attached. (10 Del.C. § 3508)

If pursued in the Justice of the Peace Court, an affidavit must be filed by the plaintiff, or any credible person for the plaintiff, stating that the defendant is justly indebted to the plaintiff in a stated sum not exceeding $25,000, provided, however, that the $25,000 limit shall not apply to monetary claims, counter-claims, or cross-claims asserted in an action for summary possession arising from or relating to a commercial lease, and has absconded, or is as that person believes, about to remove the defendant's person or property out of the State with intent to defraud the defendant's creditors, or intentionally conceals himself or herself so that process of summons cannot be served on him or her, or is a nonresident of the State, as the case may be. (The Rules of the Court of the Justices of the Peace, Rule 4)

If pursued in the Court of Common Pleas (which has jurisdiction over civil matters where the amount in controversy, exclusive of interest, is less than $50,000) or the Superior Court, and in the case of a domestic attachment, a plaintiff must file, with the complaint, an affidavit setting forth (i) facts to establish that the defendant cannot be found, or that the defendant is justly indebted to the plaintiff in a sum exceeding $50, and has absconded from the defendant’s usual place of abode or is about to leave Delaware or has left Delaware with intent to defraud his or her creditors or to elude process, (ii) a description of the property to be seized, including the amount and value, the defendant’s title or interest therein, the name of the holder of the legal title, and (iii) the source of any information that is included in the affidavit by the affiant on information and belief. No writ of attachment shall be issued until the plaintiff gives bond in an amount to be fixed by the Court. (Court of Common Pleas Civil Rules, Rule 4; Superior Court Rules of Civil Procedure, Rule 4)

The writ must bear the date of its issuance, be signed by a clerk or a judge, be under the seal of the Court, contain the name of the Court and the names of the parties, state the name of the official or other person to whom it is directed, the name and address of the plaintiffs attorney, if any, otherwise the plaintiffs address, and the time within the defendant must appear and defend, and must notify the defendant that in case of the failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint. The writ must also inform the defendant as to how the attachment may be dissolved. (See above The Rules of the Court of the Justices of the Peace, Rule 4; Court of Common Pleas Civil Rules, Rule 4; Superior Court Rules of Civil Procedure, Rule 4)

Attachment is an action at law enabling a creditor to reach the property of his or her debtor and to apply such property as is susceptible to process in satisfaction of the debt. John Julian Costr. Co. v. Monarch Bldrs., Inc., 306 A2d 29 (Del. Super. Ct. 1973), affirmed 324 A.2d 208 (Del. 1974).