California Code of Civil Procedure 493.040 – (a) Where a lien of attachment terminates pursuant to Section …
(a) Where a lien of attachment terminates pursuant to Section 493.030, the assignee under a general assignment for the benefit of creditors or, in the case of a bankruptcy, the trustee, interim trustee, or the debtor in possession if there is no trustee or interim trustee, may secure the release of the attached property by filing with the levying officer a request for release of attachment stating the grounds for release and describing the property to be released, executed under oath, together with a copy thereof.
(b) In the case of an assignee, the request shall include two copies of the general assignment for the benefit of creditors.
Terms Used In California Code of Civil Procedure 493.040
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- general assignment for the benefit of creditors: means an assignment which satisfies all of the following requirements:
California Code of Civil Procedure 493.010
- Lien: A claim against real or personal property in satisfaction of a debt.
- Person: includes a corporation as well as a natural person. See California Code of Civil Procedure 17
- Plaintiff: The person who files the complaint in a civil lawsuit.
- Property: includes both personal and real property. See California Code of Civil Procedure 17
- Trustee: A person or institution holding and administering property in trust.
- Will: includes codicil. See California Code of Civil Procedure 17
(c) In the case of a trustee, interim trustee, or debtor in possession, the request shall include a certified copy of the petition in bankruptcy, together with a copy thereof.
(d) If immediate release of the attachment is sought, the request shall be accompanied by an undertaking to pay the plaintiff any damages resulting from an improper release of the attachment, in the amount to be secured by the attachment, executed by an admitted surety insurer.
(e) Within five days after the filing of the request for release of attachment, the levying officer shall mail to the plaintiff:
(1) A copy of the request for release of the attachment, including the copy of the document filed pursuant to subdivision (b) or (c).
(2) If an undertaking has not been given, a notice that the attachment will be released pursuant to the request for release of attachment unless otherwise ordered by a court within 10 days after the date of mailing the notice.
(3) If an undertaking has been given, a notice that the attachment has been released.
(f) Unless otherwise ordered by a court, if an undertaking has not been given, the levying officer shall release the attachment pursuant to the request for release of attachment after the expiration of 10 days from the date of mailing the papers referred to in subdivision (e) to the plaintiff. If an undertaking has been given, the levying officer shall immediately release the attachment pursuant to the request for release of attachment.
(g) Where the attached property has been taken into custody, it shall be released to the person making the request for release of attachment or some other person designated in the request. Where the attached property has not been taken into custody, it shall be released as provided in subdivision (c) or (d) of Section 488.730.
(h) The levying officer is not liable for releasing an attachment in accordance with this section nor is any other person liable for acting in conformity with the release.
(Amended by Stats. 1982, Ch. 1198, Sec. 62.5. Operative July 1, 1983, by Sec. 70 of Ch. 1198.)