Forms of Action - Part A Flashcards
what is a distress claim?
in rem law claim by landlord to recover rent by proceeding against the tenant’s tangible personal property
when is a distress action brought?
it is a pretrial process
can a landlord also request seizure of property that is on the leased premises or has been there?
yes if it has been there within the last 30 days
what court is distress brought in?
only allowed in GDC regardless of the dollar amount
what must the landlord do if he is seeking levy and seizure?
post a bond that is twice the value of the seized property to protect the tenant in the event that the judge finds no rent was due
what must the landlord do if they are only seeking a levy?
post a bond amount that is equal to value of property
distress and ex parte?
distress can be made, and usually is, issued ex parts by filing a petition for writ of execution
what is the sol on distress?
5 years
what is detinue?
law claim to recover specific personal property, or alternatively, a money judgment for its value, and damages for wrongful retention by the defendant
where is detinue filed?
either the gdc or cc, depending on dollar amount of the claim or value of property
what are the elements required to recover in detinue? (5)
-p has a property right in the property that the law recognizes
-p has right to immediate possession
-property must be capable of identification
-property has some value, and
-def, now or earlier, had possession at some time prior to filing suit
can the court enter a pretrial seizure of the property specified in the detinue action?
under the right circumstances, yes, based on ex parte evidence
what must the p do if seeking pretrial seizure?
post a bond in the amount of at least twice the estimated fair value of the property claimed
what happens if the p wins and there was no pretrial seizure?
court orders sheriff to oversee the transfer of possession from the d to the p if the d does not surrender the property OR p may treat d’s conduct as conversion and get a money judgment for the value of the property at the time of its wrongful detention
what is a declaratory judgment?
court can determine the rights of the parties before either has committed a wrong when there is an obvious dispute (this fixes what at common law was the rule which is it was necessary for a wrong to be committed before legal action could take place)
