USA Law and Practice Contributed by: Jason W. Myatt, Ankita Ritwik and Charline Yim, Gibson, Dunn & Crutcher LLP
maintain the attached property until it can be sold. Courts can order debtors to transfer assets or pay writs of execution under threat of contempt of court, which typically involves fines of increasing magnitude, although incarceration may be ordered in particularly severe circumstances. • Writ of Garnishment – A writ of garnishment can be used to obtain control of the property of the debtor that is in the possession or control of a third party. This includes debts or other obligations owed to the debtor. Depending on state law and practice, a writ of garnishment may be issued pre- or post- judgment. (See Fed. R. Civ. P. 64.) • Writ of Attachment – A writ of attachment is pri - marily a pre-judgment process which orders the sequestration or seizure of property by the US Marshal or a designated official to preserve the property pending outcome of the litigation. Under certain circumstances, such as where ownership of an asset is disputed, it may also be invoked post- judgment. State law governs attachment proce - dures. • Writ of Assistance – If a judgment contains an injunction or order for specific performance direct - ing a debtor to perform an act and the debtor fails to comply, a creditor may seek a writ of assistance in which the court orders that the act be done by the debtor or another person appointed by the court at the cost of the debtor. Violation of such a writ is punishable as contempt of court. • Charging Order – In many US jurisdictions, a debtor’s ownership interests in limited liability com - panies and limited partnerships are exempt from writs of execution. Instead, such interests are sub - ject to charging orders. Unlike writs of execution, which allow for the sale and transfer of a debtor’s property, charging orders generally limit a creditor to receiving the economic benefits associated with the debtor’s interests, such as equity distributions. Although declaratory judgments do not compel action, they can be used to justify an injunction or money judgment. If the debtor is financially unable to pay the extent of the monetary judgment, they may initiate insolvency proceedings. With a few specific exceptions, such as proceedings involving insurance companies, insolven -
cy proceedings take place in specialised bankruptcy courts. Although the debtor is commonly allowed to maintain control of its assets or “estate” as “debtor in possession” in such actions, particularly in the early stages of a bankruptcy proceeding, courts have the power to appoint a trustee to manage the debtor’s operations in their stead during these proceedings. Unsecured creditors should be aware that all valid outstanding debts – including those that have not yet been adjudicated – must be addressed in bankruptcy proceedings, and that creditors share pro rata with other creditors of similar priority. As a result, creditors frequently do not recover their full monetary judgment if – after the sale of their assets – debtors cannot pay all parties fully. 2.3 Costs and Time Taken to Enforce Domestic Judgments Timing and costs of enforcing a judgment are highly fact-dependent and will vary widely from case to case and from US jurisdiction to jurisdiction. Creditors seeking to compel repayment through the US courts should expect to pay court filing fees, pro - cess server fees, and for more protracted and involved enforcement proceedings, third-party discovery and document review fees. In addition, where enforcement proceeds across multiple jurisdictions, creditors may need to retain local counsel, with associated fees, in each enforcement jurisdiction. • Court Filing Fees – These fees vary by state and federal district but are typically de minimis. For example, in the District of Columbia state courts, filing a complaint costs USD120, a temporary restraining order costs USD60, and all other motions (such as a motion for summary judg - ment) cost USD20. Upon successful recognition of the debt, a writ of attachment or replevin for the debtor’s assets would cost a further USD20. (See website for District of Columbia Courts: Civil Actions Filing Fees (2026).) • Process Server – The US Marshal charges for the costs incurred in executing personal service and service by mail (28 CFR § 0.114). There are also private firms that may be authorised to execute service, who may charge different rates.
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