Also known as: attach security interest · attached security interest · attaching security interest · attachments of security interests · attachment · security interest attachment · UCC § 9-203
Written by attorneys — see sources below.
A security interest becomes enforceable against the debtor with respect to the collateral when value has been given, the debtor has rights in the collateral, and the parties have authenticated a security agreement that reasonably identifies the collateral. Attachment occurs at that moment unless an agreement expressly postpones the time of attachment. Once attached, the secured party may enforce the interest against the debtor.
Atlas Ventures noticed the deposition of a corporate officer and served a subpoena duces tecum seeking records of equipment pledged as collateral. The notice listed the specific documents in an attachment. Because the attachment of the security interest had already occurred under the authenticated agreement, the secured party could enforce its rights to the listed items during the deposition.
After a jury acquitted Adrian Aguilar on a lesser charge, prosecutors sought to pursue a greater offense arising from the same conduct involving pledged inventory. Because attachment of the security interest had already made the creditor's rights enforceable, the prior acquittal prevented further prosecution that would undermine the attached interest.
Azure Solutions delivered equipment to Alice Atkins after she signed a security agreement and received financing. Value had been given and the agreement reasonably identified the collateral. The security interest attached immediately, allowing the creditor to enforce its rights against the equipment upon default.
A creditor obtained a judgment against a trust beneficiary who had granted a security interest in future distributions. Because the beneficiary's interest was not subject to a spendthrift provision, the court authorized attachment of present and future distributions to satisfy the attached security interest.
A lender sought to attach real property pledged as collateral before judgment in an ordinary civil action. The debtor had authenticated a security agreement and the lender had given value. Attachment of the security interest occurred, but the court required notice and a hearing to satisfy due process before seizure.
In March 1988, John F. DiGiovanni submitted an application to the Connecticut Superior Court for a prejudgment attachment in the amount of $75,000 on Brian K. Doehr's home in Meriden, Connecticut, in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr. DiGiovanni had no pre-existing interest in Doehr's real estate, and the suit did not involve the property. Connecticut law authorized prejudgment attachment of real estate without prior notice or hearing upon verification by oath that there was probable cause to sustain the validity of the plaintiff's claim. DiGiovanni accompanied the application with an affidavit stating that the facts set forth in his complaint were true, that he had been willfully, wantonly and maliciously assaulted by Doehr resulting in a broken left wrist, an ecchymosis to his right eye, and other injuries, and that he had expended sums for medical care and treatment. The affidavit concluded that these facts were sufficient to show probable cause that judgment would be rendered for the plaintiff. On March 17, 1988, the Superior Court judge found probable cause to sustain the validity of the claim and ordered the attachment on Doehr's home to the value of $75,000. The sheriff attached the property on March 21, 1988. Doehr first learned of the attachment after it had been recorded on the land records. He had not yet been served with the complaint. The attachment notice informed Doehr of his right to a hearing to claim that no probable cause existed, to request that the attachment be vacated or modified or a bond substituted, or to claim that some portion of the property was exempt. Doehr filed suit in the United States District Court for the District of Connecticut claiming that the Connecticut statute violated the Due Process Clause of the Fourteenth Amendment. The District Court granted summary judgment upholding the statute. The Court of Appeals for the Second Circuit reversed. The Supreme Court granted certiorari to resolve the conflict of authority regarding the statute's constitutionality.
View caseThe IRS attempted to attach a tax lien to property held by a married couple as tenants by the entirety after one spouse granted a security interest in the parcel. Because the security interest had attached upon authentication and delivery of value, the lien could reach only the debtor spouse's interest in the collateral.
In 1988, the Internal Revenue Service assessed $482,446 in unpaid income tax liabilities against Don Craft for his failure to file federal income tax returns for the years 1979 through 1986. At that time, Don Craft and his wife, respondent Sandra L. Craft, owned a piece of real property in Grand Rapids, Michigan, as tenants by the entirety. After notice of the federal tax lien was filed, the Crafts jointly executed a quitclaim deed purporting to transfer Don Craft's interest in the property to Sandra Craft for one dollar. When Sandra Craft later attempted to sell the property, a title search revealed the lien. The IRS agreed to release the lien to allow the sale on the condition that half of the net proceeds be held in escrow pending determination of the Government's interest. Sandra Craft then brought an action in the United States District Court for the Western District of Michigan to quiet title to the escrowed proceeds. The District Court granted summary judgment to the Government. On appeal, the United States Court of Appeals for the Sixth Circuit held that the tax lien did not attach to the property under Michigan law and remanded for consideration of the Government's fraudulent conveyance claim. On remand, the District Court found that the conveyance itself was not fraudulent but that the use of nonexempt funds to pay the mortgage constituted a fraudulent act, and it awarded the IRS a share of the proceeds. The Sixth Circuit affirmed that determination on the lien issue as law of the case. The Supreme Court granted certiorari to consider whether Don Craft had a separate interest in the entireties property to which the federal tax lien attached.
View caseA security interest attaches when it becomes enforceable against the debtor with respect to the collateral. This occurs once value has been given, the debtor has rights in the collateral, and the parties have authenticated a security agreement that reasonably identifies the collateral, unless the agreement postpones attachment.
Attachment makes the security interest enforceable against the debtor. Without attachment there is no security interest at all, and the secured party cannot realize on the collateral even against the debtor.
…because the creditor must eventually prove his case in a judicial proceeding. They argue that the statutes are similar to the attachment statutes that this Court upheld in Ownbey v. Morgan , 256 U. S. 94, and Coffin Bros. v. Bennett , 277 U. S. 29. We think that the appellees' reliance on those cases is misplaced. In…