provisional remedies Flashcards
types of provisional remedies
five types (all require court order, except Notice of Pendency); Court can (discretion) require P to elect one, even if entitled to several.
types: attachment, preliminary injunction, temporary receivership, seizure of chattel, notice of pendency
Provides security for ultimate enforcement of potential judgment.
attachment
main purpose is to provide security for the enforcement of a money judgment
a) Effect: P gets a senior lien on D’s assets pending the outcome. P gets order from court and gives it to a NY sheriff who levies upon D’s property in NY. Levy imposes a lien on property pending outcome of action–this gives P his security interest.
b) Types of Action:
1) P is seeking money “damages” (in at least one of several claims) AND either:
(a) D is unlicensed corporation or non-domiciliary residing outside of NY; OR
(b) D intends to conceal or remove assets from NY with intent to defraud creditors or frustrate enforcement of a judgment (in the future).
c) Procedure:
1) P makes motion for attachment—need:
(a) P must submit affidavits showing the 1 of 2 types of actions;
(b) Show probability of success on merits on underlying claim; AND
(c) Post Undertaking (Bond) to Indemnify D for any damages or expenses caused by attachment—D entitled to damages if (1) shouldn’t have granted (attachment made by improper procedure) OR (2) D wins on merit
(d) Motion can be made On Notice or Ex Parte:
(i) If On Notice: easier, but giving notice might defeat the purpose of the order!
(ii) If Ex Parte: need prompt hearing (due process):
(1) First, P attaches property.
(2) Then, P must make follow-up Motion on Notice to confirm by Order to Show Cause—so there can be an expedited Return Date.
a. Time Period: P must serve motion to confirm:
i. If unlicensed corp/non-domiciliary → serve no later than 10 days after levy; or
ii. If fraudulently moving/hiding assets → serve no later than 5 days after levy
b. Failure to Make Motion to Confirm: failure to file motion to confirm/serve within time period → ex part order and levy are automatically void!
2) P obtains order from court, who gives it to NY Sheriff, who levies—impose lien, senior to all subsequent liens—by filing with County Clerk of county where real property is located, on any D property in NY, pending outcome. Delivery of order of attachment results in automatic lien and injunctive effect.
(a) Types of Property: any tangible/intangible personal property (car, bank account, debt owed) or real property, located in NY.
(b) Example: Personal Property: Sheriff delivers order to person in NY holding property (D or garnishee) → automatically imposes lien and serves as injunction against transfer.
(1) Garnishee: a third person who owes money to D or possess D’s stuff (e.g., bank)
preliminary injunction
Security for an Equity Action: intended to maintain status quo while an equity action is pending
a) Type of Action:
1) Equity action in which P seeks either:
(a) Permanent Injunction OR
(b) Showing D threatens to harm P’s interest in the subject matter of the equity claim.
2) Never available if Solely Money Damages—even if the guy threatens to gamble away the money.
b) Procedure:
1) P must make Motion On Notice (only) with:
(a) Affidavits showing grounds for equitable relief AND threat of irreparable injury
(b) Show probability of success on merits on underlying claim; AND
(c) Post Undertaking (Bond) to Indemnify D for damages if later determined that—if (1) shouldn’t have granted OR (2) D wins on merit
2) Motion cannot be served before the summons—with or after.
3) Timing—Minimum Advance Notice for a motion on notice is 8 days.
c) Temporary Restraining order (TRO): Immediate Injunctive Relief: If P can’t wait 8 days (threat of immediate injury), P can ask court to grant TRO ex parte to maintain status quo until motion for preliminary injunction is decided by:
1) P commences action seeking equitable relief
2) P moves ex parte via Order to Show Cause for preliminary injunction to maintain status quo until overall action is resolved, and asks judge to schedule early return date for preliminary injunction motion
(a) Must include affidavit demonstrating “significant prejudice” if notice provided to adversary.
3) Judge includes TRO in Order to Show Cause, scheduling an early return date for preliminary injunction motion.
4) P serves Order AND TRO on D—with supporting affidavits for preliminary injunction request → D immediately restrained/enjoined by TRO pending resolution of P’s motion for preliminary injunction.
temporary receivership
person appointed by court to manage D’s property (drastic remedy).
a) Type of Action where available:
1) Equity claim in which specific property is the subject matter of the action AND
2) Danger that D will injure or destroy the value of the specific property.
3) Never if Solely Money Damages—even if the guy threatens to gamble away the money.
b) Type of Property: tangible property and real property—not intangible property
1) Stock, personal property; Can appoint to manage a corporation, if P shows D will squander the business.
c) Procedure:
1) P must make Motion On Notice (only)—NOT ex parte
seizure of a chattel (replevin)
To ensure enforcement of a judgment awarding possession of a chattel—otherwise, if chattel is lost/destroyed while action is pending, judgment limited to monetary value → get sheriff to seize and retain custody of the chattel (“impoundment”) to retain its value while action is pending.
a) Type of Action:
1) Only to recover possession of chattel—tangible personal property (e.g., animals and other things).
b) Procedure: Can be made by Motion on Notice OR Ex Parte
1) Motion For Order of Seizure (on Notice):
(a) Affidavits showing probability of success on merits on underlying claim; AND
(b) Post Undertaking (Bond) to Indemnify D—if (1) wrongful seizure OR (2) D wins on merit
2) Ex Parte: in addition, must also show:
(a) P must show threat of immediate loss of chattel AND,
(b) If granted, within 5 days post-seizure, P must make follow-up Motion on Notice (with affidavits/bond) to confirm ex parte order (D gets hearing).
notice of pendency
In an equity action in which judgment will have a direct effect on real property, notice of pendency gives record notice to any potential buyers or mees that there is lien on property.
a) Type of Action:
1) Equity claim where judgment will have direct effect on use, possession, enjoyment, or title of real property (e.g. specific performance, ejectment).
(a) Real Property: subject of action must be the real property itself, not stock in corporation whose sole asset is real property.
2) Narrow Application—because it’s so easy to get, and it renders D’s stuff unmarketable.
b) Procedure:
1) P may (optional) file Notice of Pendency directly with the County Clerk (where property is located)
(a) Except: Mortgage Foreclosure: Notice of Pendency is statutorily required!
2) No Court Order Needed—no judicial supervision!
3) No Bond Required
4) If Improper Filing: D can challenge by making motion to cancel notice of pendency.
5) any notice of pendency is automatically canceled if P fails to serve summons and complaint upon D within 30 days after notice of pendency is granted
c) Duration of notice/Renewal
1) Duration: Notice of Pendency initially effective for three years after filing PLUS P can motion for three-year extension, prior to expiration of original period.
2) Failure to Renew:
(a) Notice of pendency becomes void at expiration AND
(b) P can’t obtain another notice of pendency on same property for same claim (no 2nd bite).
(i) EXCEPT: Mortgage Foreclosure Action: court may grant motion for new notice of pendency even if original expired without renewal—makes sense, because statutorily required in this mortgage foreclosure.
note on judgment creditors
judgment creditors may only execute judgment against real property owned by debtor on date that judgment was docketed
take free of lien if judgment against donor and you donee take title to property before lien attached
