(4) Remedies: Equitable Remedies Flashcards
Temporary Restraining Orders
A temporary restraining order is an emergency remedy used to maintain the status quo for up to 14 days, pending the outcome of a hearing or application and is only available when the P will suffer immediate and irreparable harm.
Definition & Rule:
Ex Parte Temporary Restraining Orders
Definition: An ex-parte TRO is a TRO without notice to the D.
Rule: The court may issue an ex parte TRO only if the moving party (1) clearly shows that immediate and irreparable injury or damage will result to the movant before the adverse party can be heard; (2) certifies in writing any efforts made to give notice and why notice should not be requires; AND (3) gives security in an amount the court deems proper.
Ex Parte Temporary Restraining Orders
When do they expire? Can they be extended? + CA differences
An ex-parte TRO automatically expires after 14 days unless a shorter time frame is set by the court. The court can extend the expiration for (a) good cause; OR (b) if the opposing party consents to the extension.
*In CA a hearing for preliminary injunction must be set if a TRO is granted no later than 15 days or 22 days if there is good cause from when the TRO was issued.
Definition & When a court may issue Rule:
Preliminary Injunction
Definition: A preliminary injunction maintains the status quo pending the outcome of an action in order to protect irreparable harm to a party.
Rule: A court may issue a preliminary injunction only (1) upon notice the adverse party; AND (2) if the moving party gives security in an amount the court deems proper.
What a party must show to get a:
Preliminary Injunction
The party moving for an injunction must show: (1) a likelihood of success on the merits; (2) a likely threat of irreparable harm to the movant; (3) balancing of the hardships in favor of the moving party – the harm alleged by the moving party outweighs the harm to the non-moving party; (4) there is public interest at issue
Restraining Injunction
a court may prevent a party from doing something.
Mandatory Injunction
a court may compel a party to do something.
Permanent Injunction
A permanent injunction is issued after a full trial on the merits,and requires the following: (1) inadequate legal remedies; (2) a protectable personal or property interest; (3) feasibility of enforcement; (4) a balancing of hardships to both parties; AND (5) there are no valid equitable defenses.
Declaratory Judgement in Federal Court
Definition: A declaratory judgement determines the rights and obligations of the parties.
Rule: The Declaratory judgement Act provides that a federal court has the power to declare the rights of the parties in a declaratory judgement action only when there is a case of actual controversy – it must meet justiciability requirements under Article III of the Constitution.
*Absent an actual controversy the court has no authority to decide the case.
Rule: A declaratory judgement action satisfies Art III’s case or controversy requirement when it involves: (1) a substantial controversy; (2) between parties having adverse legal interests; (3) of sufficient immediacy and reality (definite and concrete); (4) to warrant the issuance of a declaratory judgment that is conclusive.
Definition & Rule
Equitable Lien
Definition: An equitable lien imposes a lien on the D’s property as security for P’s claim.
*The P is entitled to a deficiency judgement if the proceeds are less than the value of the property at the time it was taken. *A bona fide purchaser is not subject to an equitable lien.
Equitable Lien vs. Constructive Trust
If D embezzles funds from the P and uses the funds to buy a house, then the P can seek an equitable lien or a constructive trust with respect to the house. However, if the D owned the house prior to the embezzling the funds and instead used the funds to add a room to the house, then the P can only pursue an equitable lien as a remedy. An equitable lien is usually more advantageous if the value of the property has declined.
Definition & Rule:
Constructive Trust
Definition: A constructive trust is used to prevent unjust enrichment resulting from wrongful conduct such as fraud, undue influence of breach of a fiduciary duty. A constructive trust imposes a duty on the D to convey property to the P.
Rule: A constructive trust is available if a D (1) wrongfully acquired title to property; AND (2) the D would be unjustly enriched if allowed to keep the property.
*A bona fide purchaser is not subject to constructive trust.
*The SOF does not apply to constructive trust – therefore oral promises may be used to establish a constructive trust
*A constructive trust can only be sought against persons with title to the property.
*A P is not entitled to a constructive trust on improved property because the property was not acquired with the P’s funds – in these instances look to an equitable lien.
Is a constructive trust applicable on improved property?
NO, a P is not entitled to a constructive trust on improved property because the property was not acquired with the P’s funds – in these instances look to an equitable lien.
Replevin
Replevin allows the recovery of specific personal property and is available if: (1) the D is wrongfully withholding personal property; (2) that the P has a right to possess.
Pre-Trial Recovery Rule
Replevin
A P may recovery the property before trial if: (1) there is a preliminary judicial hearing; AND (2) the P posts bond.
