§ 1329.Vacating or modifying attachment

Where section 1328 releases property in exchange for security, section 1329 challenges the attachment head-on, without requiring the defendant to post anything. Before the property or debt is applied to satisfy a judgment, the defendant, the garnishee, or anyone with an interest in the property can move, on notice to each party and the claiming agent, to vacate or modify the order of attachment. On that motion, the court can give the claiming authority a chance to fix any defect. But once the defendant has appeared and the court determines the attachment is not needed to secure the claiming authority's interest, the court must vacate the order, a mandatory outcome rather than a matter of discretion.

Subdivision 2 puts the burden squarely on the claiming authority: it must establish the grounds for the attachment, the continuing need to maintain the levy, and the probability that it will succeed on the merits, the same standard section 1317(2) points to when an attachment obtained without notice comes up for confirmation. As with the motions under sections 1318, 1319, and 1328, making this motion does not by itself count as an appearance in the action.