It can take years to obtain a final judgment in a financial elder abuse case. Therefore, a critical first step when initiating a financial elder abuse case is securing the defendant’s property to satisfy a future judgment.
Before litigation begins, and throughout the litigation, attorneys should attempt to determine what assets the defendant owns (or controls through a business entity, spouse, or other “cooperative” individual). Techniques for discovering a defendant’s assets include asset searches, written discovery, and subpoenas.
Once information regarding the defendant’s assets is obtained, attorneys should consider a writ of attachment. Attachment is a prejudgment remedy that allows a creditor to seize the assets of the defendant to secure a judgment, should judgment later be awarded to the plaintiff. The property to be attached does not need to be the property that was misappropriated from the elder.
Although attachments are available on motion, attorneys should consider proceeding ex parte, without notice to the defendant. Because the basis of the financial elder abuse action itself is the wrongful taking of money or property from the elder, attorneys will often be able to meet the irreparable injury or exigent circumstances test required for obtaining ex parte relief. Using the ex parte process to obtain a right to attach order and writ of attachment can be essential to ultimately recovering the money or property that was wrongfully taken from the elder.
If the defendant owns real property, a lis pendens should also be considered. A lis pendens is a document recorded with the county recorder’s office for the county in which the property is located. The purpose of a lis pendens is to prevent a transfer of the property by providing notice of the claim asserted by the plaintiff and thereby clouding title.
Securing property pending a judgment is a critical component of litigating a financial elder abuse case to ensure that the elder can obtain recovery of the assets that were wrongfully taken.