CHAPTER 2. ATTACHMENT
IC 34-25-2
Chapter 2. Attachment
IC 34-25-2-1
Attachment of property at or after filing complaint
Sec. 1. (a) At or after the time of filing a complaint, the plaintiffmay have an attachment against the property of the defendant, in thecases described in subsection (b) and in the manner described in thischapter.
(b) The plaintiff may attach property when the action is for therecovery of money and the defendant:
(1) is, or one (1) of several defendants is, a foreign corporationor a nonresident of Indiana;
(2) is, or one (1) of several defendants is, secretly leaving or hasleft Indiana with intent to defraud:
(A) the defendant's creditors;
(B) the state;
(C) a municipal corporation;
(D) a political subdivision; or
(E) a school corporation (as defined in IC 20-18-2-16(c));
(3) is concealed so that a summons cannot be served upon thedefendant;
(4) is removing or about to remove the defendant's propertysubject to execution, or a material part of the property, outsideIndiana, not leaving enough behind to satisfy the plaintiff'sclaim;
(5) has sold, conveyed, or otherwise disposed of the defendant'sproperty subject to execution, or permitted the property to besold with the fraudulent intent to cheat, hinder, or delay:
(A) the defendant's creditors;
(B) the state;
(C) a municipal corporation;
(D) a political subdivision; or
(E) a school corporation (as defined in IC 20-18-2-16(c)); or
(6) is about to sell, convey, or otherwise dispose of thedefendant's property subject to execution with the fraudulentintent to cheat, hinder, or delay:
(A) the defendant's creditors;
(B) the state;
(C) a municipal corporation;
(D) a political subdivision; or
(E) a school corporation (as defined in IC 20-18-2-16(c)).
(c) The plaintiff is entitled to an attachment for the causesmentioned in subsection (b)(2), (b)(4), (b)(5), and (b)(6) whether thecause of action is due or not.
As added by P.L.1-1998, SEC.20. Amended by P.L.176-2009,SEC.22.
IC 34-25-2-2
Attachment barred while debtor's spouse and family reside within
county; limitation on debtor's absence
Sec. 2. (a) Except as provided in subsection (b), an attachment,may not issue against any debtor while the debtor's spouse andfamily remain settled within the county where the debtor usuallyresided before the debtor's absence, if the debtor does not remainabsent from Indiana more than one (1) year.
(b) This section does not apply if:
(1) the attachment is requested in a cause of action described insection 1(b)(4), 1(b)(5), or 1(b)(6) of this chapter; or
(2) an attempt is made to conceal the debtor's absence.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-3
Concealment of debtor's absence by spouse or family
Sec. 3. If the spouse or family of the debtor:
(1) refuse or are unable to:
(A) account for the debtor's absence; or
(B) indicate the place where the debtor may be found; or
(2) give a false account of the debtor's absence or place wherethe debtor may be found;
the refusal, inability, or false account is considered an attempt toconceal the debtor's absence for the purposes of this chapter.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-4
Plaintiff's affidavit
Sec. 4. The plaintiff or a person representing the plaintiff shallmake an affidavit showing:
(1) the nature of the plaintiff's claim;
(2) that the plaintiff's claim is just;
(3) the amount that the plaintiff ought to recover; and
(4) that one (1) of the grounds for an attachment enumerated insection 1 of this chapter is present.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-5
Plaintiff's undertaking
Sec. 5. Except for actions filed by the attorney general underIC 5-11-5-1 or IC 5-11-6-1, the plaintiff or a person representing theplaintiff shall execute a written undertaking, with sufficient surety,to be approved by the clerk, payable to the defendant, to the effectthat the plaintiff will:
(1) duly prosecute the proceeding in attachment; and
(2) pay all damages that may be sustained by the defendant ifthe proceedings of the plaintiff are wrongful and oppressive.
As added by P.L.1-1998, SEC.20. Amended by P.L.176-2009,SEC.23.
IC 34-25-2-6
Order of attachment Sec. 6. Upon the filing of the affidavit and written undertaking inthe office of the clerk, the clerk shall issue an order of attachment,which shall be directed and delivered to the sheriff. The order ofattachment must require the sheriff to seize and take into possessionthe property of the defendant in the county that is not exempt fromexecution.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-7
Issuance of order to sheriff of other county; orders issuedsimultaneously or in succession; recovery of costs
Sec. 7. Orders of attachment may be issued to the sheriff of anyother county, and several orders of attachment may, at the option ofthe plaintiff, be issued at the same time or in succession. Only thecosts of orders of attachment that have been executed in whole or inpart shall be recovered against the defendant unless otherwisedirected by the court.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-8
Issuance of execution of order on Sunday
Sec. 8. An order of attachment may be issued and executed onSunday, if the plaintiff's affidavit shows that the defendant is aboutto abscond on that day, to the injury of the plaintiff.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-9
Assistance of householder; inventory; appraisement
Sec. 9. The sheriff shall proceed, with the assistance of adisinterested and credible householder of the county, to:
(1) attach the lands, tenements, goods, and chattels of thedefendant, subject to execution; and
(2) make an inventory and appraisement of the propertydescribed in subdivision (1) and return the inventory andappraisement with the order.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-10
Order becomes lien on property
Sec. 10. An order of attachment binds the defendant's property inthe county subject to execution and becomes a lien on the propertyfrom the time of the delivery of the order to the sheriff, in the samemanner as an execution.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-11
Order in which property taken; pursuing property in anothercounty
Sec. 11. (a) The sheriff shall first take the defendant's personalproperty under an attachment. (b) If the sheriff does not find enough personal property of thedefendant to satisfy the plaintiff's claim and costs of the action, thenthe sheriff shall take the defendant's real estate under attachment.
(c) If any property of the defendant is removed from the countyafter an order of attachment is placed in the hands of the sheriff, thesheriff may pursue and attach the property in any county within three(3) days after the removal.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-12
Undertaking by defendant or person having possession of property
Sec. 12. The defendant or other person who has possession ofattached property may have the property, or any part of the property,delivered to the defendant or person by executing and delivering tothe sheriff a written undertaking, with surety, to be approved by thesheriff, payable to the plaintiff, to the effect that:
(1) the property shall be:
(A) properly kept and taken care of; and
(B) delivered to the sheriff on demand, or so much of theproperty as may be required to be sold on execution tosatisfy any judgment that may be recovered against thedefendant or person in the action; or
(2) the defendant or person will pay the appraised value of theproperty, not exceeding the amount of the judgment and costs.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-13
Third party's duty to prosecute claim
Sec. 13. Whenever any person other than the defendant claims anyproperty attached, the right of property may be tried as in cases ofproperty taken in execution, and the claimant, having notice of theattachment, shall be bound to prosecute the claim as in such cases orbe barred of the right.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-14
Duty of defendant or claimant to give information under oath
Sec. 14. The defendant or claimant of any attached property maybe required by the court to appear and give information, under oath,respecting the property.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-15
Lien on goods attached in hands of consignee
Sec. 15. Goods attached in the hands of a consignee are subject toa lien for any debt due the consignee from the consignor.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-16
Undertaking by defendant; discharge of attachment; restitution of
property
Sec. 16. If the defendant or other person representing thedefendant, at any time before judgment, executes a writtenundertaking to the plaintiff with sufficient surety, to be approved bythe court, clerk, or sheriff, to the effect that the defendant will:
(1) appear in the action; and
(2) perform the judgment of the court;
the attachment shall be discharged and restitution made of anyproperty taken under the attachment or the proceeds of the property.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-17
Property that is perishable or expensive to keep; procedure for saleat public auction
Sec. 17. When attached personal property is perishable in natureor expensive to keep, the court may direct the sheriff to sell theproperty at public auction upon reasonable notice. If the property isliable to immediate damage, the sheriff may sell the property bygiving ten (10) days notice, without an order of court, and theproceeds of all sales shall be deposited with the clerk.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-18
Allowance of sheriff's expenses of keeping attached property
Sec. 18. The sheriff shall be allowed by the court the necessaryexpenses of keeping the attached property, to be paid by the plaintiffand taxed in the costs.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-19
Effect of dismissal by first attaching creditor
Sec. 19. (a) This section applies when the first attaching creditordismisses the action or proceedings in attachment.
(b) A dismissal described in subsection (a) does not operate as adismissal of the action or proceedings of any subsequent attachingcreditor.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-20
Motion for discharge and restitution; undertaking; judgment forplaintiff
Sec. 20. (a) After appearing in the action, a defendant againstwhom an order of attachment has been issued may move to have:
(1) the attachment discharged; and
(2) restitution awarded for any property taken under theattachment.
(b) An appearance in the action may not operate to discharge theattachment unless the defendant files a written undertaking asrequired in section 16 of this chapter.
(c) If: (1) the defendant appears in the action;
(2) judgment is rendered in favor of the plaintiff; and
(3) part of the judgment remains unsatisfied after exhausting theproperty attached;
the judgment is considered a judgment against the defendantpersonally.
(d) A judgment described in subsection (c) has the same force andeffect as other judgments, and execution shall issue on the judgmentaccordingly for the collection of the residue.
(e) If the plaintiff's undertaking is insufficient, the plaintiff isentitled to a reasonable time to file an additional undertaking.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-21
Judgment for defendant; appeal
Sec. 21. (a) Except as provided in subsection (b), if the judgmentin the action is rendered for the defendant:
(1) the attachment shall be discharged; and
(2) the attached property or proceeds from the property shall bereturned to the defendant.
(b) If the plaintiff:
(1) serves notice with the clerk or judge within seventy-two (72)hours that the plaintiff:
(A) intends to appeal from the judgment; and
(B) will file a bond, approved by the court; and
(2) files an appeal, as provided by law, within sixty (60) daysfrom the date of the judgment;
the attachment or any bond given to release the property or thingattached shall not be discharged, and the attached property orproceeds from the property shall not be returned to the defendantuntil final disposition of such action.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-22
Judgment for plaintiff; execution
Sec. 22. After judgment for the plaintiff or one (1) or more ofseveral plaintiffs, attached property that remains unsold may be soldon execution, as in other cases.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-23
Action on undertaking; damages
Sec. 23. Every defendant is entitled to an action on the writtenundertaking of the plaintiff or creditor by whose proceedings inattachment the defendant is aggrieved, if it appears that theproceedings were wrongful and oppressive. The defendant shallrecover damages at the discretion of the jury.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-24 Actions in name of state
Sec. 24. In all actions in the name of the state of Indiana, or of anyperson, agent, or officer, for the use of the state, if process is returnedindicating that the defendant was not found, an order of attachmentmay be issued and proceedings may be had, as in other cases, withoutfiling an affidavit or a written undertaking.
As added by P.L.1-1998, SEC.20.
IC 34-25-2-25
Order executed and discharged; return
Sec. 25. When an order of attachment is fully executed ordischarged, the sheriff shall return the order to the court, with thesheriff's proceedings noted upon the order.
As added by P.L.1-1998, SEC.20.