Enforcement of Judgement Flashcards
Provisional Remedies
TROs
Preliminary Injunctions
Receiverships: disputes over business or property. A court has the authority to appoint a receiver and provide him or her with certain responsibilities in a case before the court. One of the major responsibilities of a receiver is to preserve common funds or properties that are in dispute and in danger of dissipation, as well as preserving leined property in the midst of foreclosure proceedings
Replevin: Return of tangible personal property pending outcome of litigation. Can be applied prejudgment and post-judgment. Generally, the plaintiff can recover the personal property before a judgment is rendered in the case if the plaintiff files a bond or cash deposit with the court. This bond or deposit ensures that the plaintiff will return the property to the defendant if the plaintiff loses the case. writ of attachment. Attachment is a type of prejudgment process in which the court orders the sheriff to seize or attach the property described in the writ.
Attachment: Seizes D’s financial or physical assets to preserve them for resolution for underlying dispute. Can attach to corporate, partnership, individual property. Exempts property necessary for support and certain earnings.
Judgment Lien: The judgment lien on real and personal property is passive. Unlike the execution lien (see below), it does not disturb the debtor’s possession and use of property. Accordingly, judgment liens, where possible, may better serve the interests of both judgment creditor and judgment debtor than execution or garnishment because they establish priority and are less likely to precipitate the filing of a bankruptcy petition by the judgment debtor
Post-Judgment Remedies
Permanent Injunction
Garnishment: When D doesn’t have money she owes a creditor, but still has some type of income. That income can be subject to a partial garnishment. Garnishment is a court-ordered method of debt collection.
Ex: For example, if a wife recovers a judgment for child support against the husband, and the child support has not been paid, the wife could have the husband’s wages garnished. This means the husband’s employer (the garnishee) would withhold part of the husband’s earnings for payment of the child support debt. By law, in general, no more than 25 percent of a person’s disposable earnings can be garnished in any pay period.
Execution: Where a writ of execution sends an officer to seize specific property of the debtor and sell the property, where the proceeds go to the creditor.
Direct Contempt (Within the Court’s Presence!)
R: Conduct that threatens a court’s immediate ability to conduct its proceedings, such as where a witness refuses to testify, failure to comply with document discovery (impeding court proceedings), or some disruption of court proceedings.
Due Process: Summary proceedings regarding a finding of contempt are tolerated and minimal. If a court delays punishing a direct contempt until the completion of trial, due process requires that the contemnor’s rights to notice and a hearing be respected. Serious criminal penalties for direct contempt require the full protection of a criminal jury trial.
Punishment: In light of the court’s substantial interest in rapidly coercing compliance and restoring order, and because the contempt’s occurrence before the court reduces the need for extensive factfinding and the likelihood of an erroneous deprivation of rights, civil punishment can be immediate. Criminal penalties are also available.
Indirect Contempt (Outside of the Court’s Presence!)–> CIVIL COERCIVE Contempt
R: The defendant is disobeying a court order but still has the opportunity to comply by altering his conduct. An example would be a reporter who refuses to name a source to a grand jury, or a parent who fails to make court-ordered child support payments.
Due Process: No summary adjudication for indirect contempt. Notice, an adversarial hearing, and a ruling by a neutral decision maker are required.
Punishment: In coercive civil contempt, the court imposes conditional penalties in an attempt to coerce the defendant into obedience. Penalties are civil, but may include fines or imprisonment, or both. No fixed limit to the penalties in coercive civil contempt, but the penalties must be conditional, that is, defendant must have the opportunity to take steps to avoid them. The court often specifies steps defendant must take to “purge himself of contempt” and thereby avoid more demanding coercive penalties. The effect is to make the original injunction more specific, and sometimes more exacting.
Indirect Contempt (Outside of the Court’s Presence!)–> COMPENSATORY COERCIVE Contempt
R: The defendant has disobeyed a court order or is still disobeying a court order, with the result that the plaintiff suffers some specific economic or other form of harm.
Due Process: No summary adjudication for indirect contempt. Notice, an adversarial hearing, and a ruling by a neutral decision maker are necessary, but no jury trial is required.
Punishment: Plaintiff may cite defendant for civil contempt, which is a remedial proceeding for compensation for any harm the defendant has caused the plaintiff. Plaintiff may prosecute it himself. Recovery would be costs associated with violation of injunction and attorneys fees, but not fines or incarceration.
Criminal Contempt
R: The defendant has disobeyed a court order, and the conduct has concluded – a march or speech, for example. In other words, the defendant no longer has the opportunity to comply with the court order.
Due Process: No summary adjudication for indirect contempt. For criminal contempt, a defendant is entitled to most of the protections of criminal procedure, including notice, an adversarial hearing, a jury to make findings of fact, and a judge to make rulings of law.
Punishment: A violation of a court order such as an injunction is a criminal offense if done willfully. Plaintiff may bring the offense to the attention of the court, and the court decides whether to ask the prosecutor to prosecute the contempt.
Recovery of Attorney’s Fees
Fee shifting allows lawyers to provide personal legal services and represent clients without charging them for their legal services. They allow the prevailing party in a legal matter to demand that the losing party pay for the legal fees and costs of the prevailing party. In some circumstances, the fees are unilaterally shifted so that losing defendants must pay the prevailing plaintiff’s reasonable attorney fees and costs. These provisions are designed to attract lawyers to public interest cases that otherwise would not seem worth the investment.
The American rule provides that each party is responsible for paying its own attorney’s fees, unless specific authority granted by statute or contract allows fee shifting, that is, recovery of those fees from the losing party. The attorneys fees must be reasonable and courts will reduce awards if it finds the fees unreasonable or excessive.
Lodestar Calculations
The calculation of reasonable attorney’s fees can be determined by Lodestar Calculations: reasonably expected billable hours multiplied by reasonable hourly rate.
Other factors to consider:
Factors to consider:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
Election of Remedies
A plaintiff can pursue more than one remedy but ultimately she is entitled to only “one satisfaction” that avoids double recovery. Alternatively, Plaintiffs can be precluded from asking for relief for one remedy if they make a pretrial election of one remedy or another by some act before trial, often described as ratification or affirmance of the transaction. In general, the Plaintiff should elect his remedy at the pleading or other pre-trial stage. The plaintiff can plead two incompatible remedies by pleading in the alternative, but if the Plaintiff wins, she will not be able to recovery for both. However, remedies can be sequential if they do not replicate each other: damages + an injunction to prevent future harm.
Incompatible Remedies
Rescission vs. Damages
Specific Performance vs. Damages for Breach of Contract
Replevin vs. Conversion
Constructive Trust vs. Equitable Lien
Injunction vs. Damages for anticipated harm
any pair of affirming vs. disaffirming remedies
Affirming: all damages
Disaffirming: rescission, replevin, etc.
Can’t ask for damages, then change your mind and ask for replevin! In many jurisdictions a plaintiff is entitled to amend the complaint as of right prior to filing of the answer, so she can adjust the remedy or remedies she seeks at that time
