Basics of the Kentucky Landlord’s Collections Secret Weapon – Attachment for Rent

There is a secret weapon in the arsenal of landlords in Kentucky. Tenants hit with this are dumbfounded, never expecting it was possible. It’s almost never used, and few landlords even know about it. However, hidden away in the Kentucky Revised Statutes is the Attachment for Rent (KRS 383.030). It’s a process to allow you a pre-judgment attachment on the tenant – in short if they are skipping out you can seize their bank account and garnish their wages right away rather than the month to several months it takes to get a judgment.

Sounds great, right? And it is, but I won’t lie – it’s not easy. There are reasons it isn’t done very often. However, if you are tenacious, willing to study and willing to dig a little, you can do this. When I started out I had no help at all – had to figure out every single thing on my own. At least I can give you some pointers that will save you quite a bit of time. Just keep in mind I’m not an attorney and am not giving you legal advice. This is how the process works for me – your mileage may vary.

When Does an Attachment For Rent Make Sense?

It doesn’t always make sense to do an attachment; here are a few basics to keep in mind:

  • Does the tenant have something worth attaching? Do they have a bank account or a job? 95% of the time that’s all you’ll be able to attach (garnish). There is an exemption limit for vehicles which almost always ends up protecting their vehicles, and they’re likely to own little else you can easily attach, with one important exception: tax refunds. If it’s near the time of year for tax refunds, it is possible for you to attach those by court order. The bank account is important to document as part of the application process just because of the possible need for attachment down the road (see our article here). If the tenant has skipped the state it becomes more difficult to find anything to attach.

  • Do you have a rock solid case that they owe you rent? The attachment for rent law has a bite-back clause where you have to bond double the amount you are seeking to attach. If you use this law frivolously, the penalty to you can be severe. I wouldn’t use it if you have an oral lease agreement, for example. Good business practices – well written lease, proper record keeping systems, etc. go a long way.

  • Are you something of a do-it-yourselfer? The first time I did this, not only had the court clerks never seen it before, but the judge confessed that in all his years on the bench he had never seen an attachment for rent attempted (though he was familiar with the law), and he had to pull out the law books to bone up. In order to pull this off, you’ll need not only the section of the Kentucky Revised Statutes, but sections of the Kentucky Rules of Civil Procedure and sections of the Kentucky Court Clerk’s Manual to put this whole thing together. You’ll probably have to convince at least the clerk that you know what you’re doing.

  • Are you mad enough at the scum who keep skipping out and laughing at you while they take your rent money and use it to rent somewhere else to actually do something about it? I won’t lie; the thousands of dollars I was losing to deadbeats ate at me. That was real money I needed to support my family. These jerks tend to just move around town constantly, victimizing multiple landlords. When I got mad enough to do something about it, the sense of relief was palpable; if I did all I could and still couldn’t collect then I could live with that better than thinking (knowing) there had to be something more I could do about it. Attachment for rent is what you can do about it. The feeling you’ll get, though, when you finally nail one of these suckers is hard to describe; imagine moments where you’ve actually clenched a fist and said “Yes!”. This will be one of those moments, if you can stick it out to get there. Getting justice is sometimes as much a reward as the money itself.

The Kentucky Attachment for Rent Process Steps

There are several critical steps:

1) You have to file a lawsuit in district or circuit court. This may sound intimidating, but it’s easier than you might think. However, this isn’t small claims court where there are forms to hold your hand and simplified procedures. You have to prepare a complaint, a motion and some affidavits in order to do an attachment. However, court records are public; if you can’t find an example online, the court clerks can probably pull a case for you which would have examples of some basics like a complaint. Somebody else paid for the attorney, you get to see the work. However, it’s unlikely the clerk can find an actual attachment for rent case for you to examine. If you are seeking less than $1,500 then you can file in district court, otherwise it has to be in circuit. In theory these courts work the same – they are both “big” court – not small claims – but district court might (in my experience) be easier to deal with because it’s the court which also handles small claims and the judge has a little more experience dealing with pro se (self-represented) litigants. However, circuit court judges are under the same guidelines to give what slack they can to the pro se, so it’s more a matter of your preference if the amount is under $1,500.

2) You have to give a demand and notice to the tenant defendant giving them seven days to respond (ask for a hearing to fight the attachment). The smart ones will clean out their bank accounts, making this the Achilles’ heel of this law. However, this law is intended more for when the tenant has just skipped and are difficult to serve summons to, so if you post the notice to the door (and take a picture of it there), there’s a good chance they won’t ever see it because they are hiding from you and have moved on. I’ve seen nothing in the law which requires you to prove they’ve actually received the notice. Posting on the property should serve as sufficient unless you’ve already rented it to someone else.

3) You have to file a verified motion for attachment of rent. Verified means sworn.

4) You have to file a an affidavit of surety, which means a bond. In this case, it has to be a property bond. That shouldn’t be a problem since you own the rental property and that can serve as the bond. The bond has to be for twice the amount of the rent you are attempting to attach. The reason for this is to prevent abuse of the law. It will end up attaching your property and the defendant gets to take double from you. Attachment for rent is largely an ex parte process – meaning that if the tenant doesn’t move for a hearing you will get the attachment without their side being heard. This bonding serves as a warning to you that this is serious. However, if they truly owe you rent and you’ll end up proving that later in the civil case you file (step one), this shouldn’t be a concern.

5) You have to file an affidavit stating you followed all the procedures required in KRS 383.030. This is just a final warning that this process is somewhat complicated and you can’t just file the motion for attachment without all the other steps.

It is also important to keep in mind that most of these documents you file have language requirements, where you must make specific statements in them. You’ll find these requirements in KRS 383.030, the Kentucky Rules of Civil Procedure and the Kentucky Court Clerk’s Manual. There are not prepared forms you can just fill out. You will have to create these forms on your own. Also, each court has its own Local Rules of Practice which can be found by county on the Kentucky Court of Justice page. The local rules will give you some guidelines on how to format the filings (typically double spaced with wide margins), when motion hour is and such. Motion hour is likely when your case would be heard if the tenant responds to the demand and notice by requesting a hearing.

If all this sounds a bit intimidating, let me assure you that you can work through it. However, one alternative would be to hire an attorney to do it for you the first time. Keep copies of all the pleadings, motions etc. and use those in the future cases, just changing the variables like tenant names, rent amounts and the like. Unfortunately it’s unlikely the court clerk will be able to easily find you a case where an attachment for rent has been done and can be pulled out for you to look at. In my county there has only been one other recent (last 10-15 years) attachment for rent, and in that case an attorney was hired, and he asked to see what I had done because he had never done one before!

Once the attachment is granted, you will need to get it executed somehow. If you know of the tenant’s bank account, for example, you’ll need to get a writ of attachment and have the sheriff serve it on the bank. The court clerk should be able to show you the forms and guide you a little on how to fill them out. If you know the tenant has a job, then you can attempt garnishment. Again the court clerk has the wage garnishment forms and can show you what you need to do to fill them out. The clerk can’t give you legal advice, but they can explain how to fill out a form, where to find the sheriff’s office, and those types of procedural things. Typically what happens when a bank gets served the attachment is they will freeze the account and send a notice to the court (you should receive a copy) that they have attached the account, the amount in it, and that they are awaiting order of the court. Once you get your judgment, an order to the bank can be obtained from the judge (you may have to prepare it for the judge to sign). However, often you can just send a copy of the judgment to the bank and they’ll release the funds to you (or the court clerk) without an actual specific order.

by Don Shelton

 

Category: Rent Collections