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Remedies > Ancillary Remedies > Flashcards

Ancillary Remedies Flashcards

1
Q

Ancillary Remedies: What are they?

A

Remedies to enforce remedies.

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2
Q

Ancillary Remedies: Contempt: What does it do?

A

Enforces injunctions.

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3
Q

Ancillary Remedies: Contempt: What is it NOT?

A

It is NOT like the contempt seen on TV.

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4
Q

Ancillary Remedies: Contempt: WHAT IS IT (if not like TV):

A

It is Non-Summary Contempt.

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5
Q

Ancillary Remedies: Contempt: When is it issued?

A

it is issued after some proceedings.

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6
Q

Ancillary Remedies: Contempt: What are the 3 kinds of Non-Summary Contempt?

A

1) Criminal Contempt
2) Civil Coercive Contempt
3) Civil Compensatory Contempt

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7
Q

Ancillary Remedies: Contempt: Criminal Contempt: What does it look like?

A

Looks like jail time or a fine, and it is a punishment for prior failure to obey.

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8
Q

Ancillary Remedies: Civil Coercive Contempt: What does it look like?

A

it is usually a per diem fine (pay this daily until you obey); Imprisonment until they agree to obey

There is an ability to purge (ability to make it stop).

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9
Q

Ancillary Remedies: Civil Compensatory Contempt: What does it look like?

A

Looks like damages.

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10
Q

Ancillary Remedies: Criminal Contempt: Purpose:

A

Criminal punishment for past offense.

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11
Q

Ancillary Remedies: Civil Coercive Contempt: Purpose:

A

Coerce compliance with an injunction; operates prospectively to coerce behavior.

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12
Q

Ancillary Remedies: Civil Compensatory Contempt: Purpose:

A

Compensate (either with damages or restitution) for noncompliance.

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13
Q

Ancillary Remedies: Criminal Contempt: What does it only apply to:

A

It only applies to willful violations.

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14
Q

Ancillary Remedies: Criminal Contempt: Who can prosecute?

A

Criminal contempt can only be prosecuted by a non-interested party.

(A state official, not a plaintiff)

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15
Q

Ancillary Remedies: Criminal Contempt: Procedural Protections:

A

Right to a jury trial if imprisonment may be greater than 6 moths or If the fine is enough money.

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16
Q

Ancillary Remedies: Criminal Contempt: Collateral Bar Rule: What does it do?

A

Cannot attack merits or the constitutionality of the issued injunction in the contempt proceeding.

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17
Q

Ancillary Remedies: Criminal Contempt: Collateral Bar Rule: What is the answer to an unconstitutional TRO?

A

The answer to an unconstitutional TRO is anything other than violating it.

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18
Q

Ancillary Remedies: Criminal Contempt: Collateral Bar Rule: What if you want to attack merits or unconstitutionality?

A

If you wish to attack merits or constitutionality, then you have to go back to where the injunction was issued.

Very often this is the same judge.

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19
Q

Ancillary Remedies: Criminal Contempt: Collateral Bar Rule: What about civil compensatory and civil coercive?

A

You can attack the merits and constitutionality of civil compensatory and civil coercive contempt.

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20
Q

Ancillary Remedies: Criminal Contempt: Collateral Bar Rule: Any exceptions to the rule?

A

The only (MAYBE) exception is if the violation is one which is transparently valid.

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21
Q

Ancillary Remedies: What if a client wants to violate an injunction?

A

Do not be passive or encourage it.

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22
Q

Ancillary Remedies: Criminal Contempt: What CAN be argued at a criminal contempt hearing?

A

Argue that:
-The trial court blatantly lacks jurisdiction (difficult).

-Did not have notice of the injunction, therefore the defendant is not bound by the injunction.

-Problems with the language of the injunction being too vague or unclear.

-The violation was not willful (which is a requirement of criminal contempt).

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23
Q

Ancillary Remedies: Civil Compensatory Contempt: What is it?

A

Compensation (damages/restitution) for plaintiff for damages caused by non-compliance.

Note the timeframe—the injunction is in effect, and the harm is not doing something—how long determines the compensation.

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24
Q

Ancillary Remedies: Civil Compensatory Contempt: Simplified Calculation:

A

(Looks like damages)

The money is based on plaintiff’s losses or defendant’s gain (restitution).

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25
Q

Ancillary Remedies: Civil Compensatory Contempt: What type of violations does it apply for?

A

Applies to inadvertent violations, and willful violations.

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26
Q

Ancillary Remedies: Civil Compensatory Contempt: Who initiates?

A

Plaintiff initiates.

27
Q

Ancillary Remedies: Civil Compensatory Contempt: Civil Procedure Protections:

A

(Possibly) Clear and convincing evidence standard.

No need for a jury because it is part of an injunction proceeding, and juries don’t have to be there for damages.

28
Q

Ancillary Remedies: Civil Compensatory Contempt: Who gets the compensation?

A

Compensation paid to plaintiff.

29
Q

Ancillary Remedies: Civil Coercive Contempt: What is it usually?

A

Usually imprisonment until the person complies or per diem/conditional fine until compliance occurs.

30
Q

Ancillary Remedies: Civil Coercive Contempt: How does it end/

A

The person in contempt (contemner) has the ability to purge.

Make it stop by paying the fine.

31
Q

Ancillary Remedies: Civil Coercive Contempt: What type of violation(s) does it apply to?

A

Applies to inadvertent violations and willful violations.

32
Q

Ancillary Remedies: Civil Coercive Contempt: Who initiates?

A

Plaintiff Initiates.

33
Q

Ancillary Remedies: Civil Coercive Contempt: Civil procedure protections: (evidentiary standards)

A

(Possibly) A clear and Convincing Evidence Standard

34
Q

Ancillary Remedies: Civil Coercive Contempt: Where does the money go?

A

The money is paid to the state.

35
Q

Ancillary Remedies: Civil Coercive Contempt: What if there is no ability to purge?

A

If there is no ability to purge, then it probably should be criminal contempt (with a jury present).

36
Q

Ancillary Remedies: Civil Coercive Contempt: What does purging NOT mean?

A

Purging does not mean simply paying the fine.

37
Q

Ancillary Remedies: When does something stop being civil coercive and start being punitive?

A

If compliance is not longer possible (issue gets resolved or other things like that), then it is no longer coercive.

38
Q

Ancillary Remedies: Test for when coercive is no longer coercive and is now punitive?

A

Is there a substantial likelihood that continued imprisonment will lead to compliance?

Court will look at time in jail, health, and age of offender.

39
Q

Ancillary Remedies: how does the civil coercive effectiveness test have issues?

A

It reward civil disobedience, because the longer you hold out, the more of a chase you have at walking.

40
Q

Ancillary Remedies: Collecting on Money Judgments: 3 main ways a judgement collector collects from a judgement debtor.

A

Execution on Personal Property

Garnishment

Judgement Lien on real property

41
Q

Ancillary Remedies: Collecting on Money Judgments: Issue with damages judgments?

A

No power of contempt behind it.

42
Q

Ancillary Remedies: Collecting on Money Judgments: Even when there is no power of contempt, when is there no issue?

A

No problem if an insurance company is paying for it, or if the defendant has a lot of money.

43
Q

Ancillary Remedies: Collecting on Money Judgments: After a judgment for dates what are the new terms for the plaintiff and defendant?

A

Defendant becomes the judgement debtor.

Plaintiff who won becomes the judgement collector.

44
Q

Ancillary Remedies: Collecting on Money Judgments: Judgement Lien on real property: Rule:

A

If the debtor owns real property, the collector can place a lien on that property.

45
Q

Ancillary Remedies: Collecting on Money Judgments: Judgement Lien on real property: Issues:

A

A judgement creditor will be behind a mortgage order, AND a homestead exception exists, meaning a creditor may not execute on a debtor’s house.

46
Q

Ancillary Remedies: Collecting on Money Judgments: Execution on Personal Property: Issues:

A

You must FIND the personal property, and state law exceptions exist for certain personal property.

47
Q

Ancillary Remedies: Collecting on Money Judgments: Execution on Personal Property: What is consider REAL property?

A

Land
Homes
Permanent Structures

ALL may NOT be executed on.

48
Q

Ancillary Remedies: Collecting on Money Judgments: Execution on Personal Property: How does it get executed?

A

Creditor will ask sheriff to seize property, sell it, then pay to the creditor.

Need to do more than the sheriff in Moninger, where he simply placed his hand on the truck and said “its ours now”

49
Q

Ancillary Remedies: Collecting on Money Judgments: Execution on Personal Property: What type of work is it?

A

Execution is TEDIOUS Work.

50
Q

Ancillary Remedies: Collecting on Money Judgments: Garnishment: What is it?

A

A new lawsuit against someone else who owes money to the debtor. (a garnishee)

A way to get the judgement debtor’s assets being held by someone else.

51
Q

Ancillary Remedies: Collecting on Money Judgments: Garnishment: What are the 2 lawsuits involved?

A

First
defendant v. plaintiff

Second
plaintiff v. garnishee.

52
Q

Ancillary Remedies: Collecting on Money Judgments: Garnishment: What happens when a writ of garnishment is issued?

A

When writ of garnishment is issued, then interrogatories must be answered.

In DIXIE, accurate answers were not given (even though they tried to fix it) and so they had to pay the money they missed (form of punishment).

53
Q

Ancillary Remedies: Collecting on Money Judgments: Garnishment: How a bank or employer can defend:

A

Bank says the debtor has no money in their account

OR

No longer employed.

54
Q

How bankruptcy makes collection of damages difficult?

A

If bankruptcy is declared it gets more complicated. (As soon as bankruptcy is declared assets are frozen).

In most states, anything executed or collected on within 90 days must be returned when bankruptcy is declared.

IE: Threat of Bankruptcy is always looming.

55
Q

Collection of damages is a ____________, ___________ process.

A

Non-fluid, difficult

56
Q

3 typical schemes for attorneys’ fees:

A

1) Contingency Fee
2) Hourly Billing
3) A different, creative Structure

57
Q

Attorneys’ Fees: 2 Alternative?

A

1) English Rule

2) One-Way Shifting

58
Q

Attorneys’ Fees: English Rule: What is it?

A

Loser pays winner’s fees (two way shifting)

59
Q

Attorneys’ Fees: One-Way Shifting: What is it?

A

If plaintiff wins, defendant pays plaintiff’s fees (but losing plaintiff does not pay defendant’s fees).

60
Q

Attorneys’ Fees: One-Way Shifting: Concerns/

A

Encourages litigation.

Benefits “repeat players”

61
Q

Attorneys’ Fees: 3 Exceptions when allowed:

A

1) If contract says otherwise, (IE: contract allows for the recovery of attorneys’ fees)

2) If a statutory cause of action provides for the recovery of attorneys’ fees

3) Bad faith litigation exception, and family law exceptions.

62
Q

Attorneys’ Fees: Who determines?

A

The court determines them using LODESATR.

63
Q

Attorneys’ Fees: What is Lodestar?

A

The REASONABLE hourly rate and REASONABLE amount of hours for the problem.

64
Q

Attorneys’ Fees: Who gets the,?

A

If attorneys’ fees are recoverable, the plaintiff or the defendant will get them.

How much the attorney may get is entirely up to the arrangement.

Remedies (7 decks)

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