* Provisional Remedies Flashcards
5 types of provisional remedies
1- attachment 2- preliminary injunction 3- temporary receivership 4- order to seize chattel (in action to recover the chattel, aka replevin action) 5- notice of pendency
NOTE: you need a court order for 1-4, but not notice of pendency
- Attachment: what is it?
π obtains an order of attachment from the court and gives it to a NY sheriff who levies upon Δ’s property in NY. The levy imposes a lien on the property pending the outcome of the action. This gives π a security interest in the property that is superior to that of any subsequent lien holder.
Levy can be made on any real or personal property located in NY
- ATTACHMENT
Requirements
1- Case must be for money damages in whole or in part; AND
2- It is probable that P will prevail on the merits; AND
3- One or more of these requirements exists:
** (i) D is an unlicensed foreign corporation or a non-domiciliary residing outside of NY
(ii) D is a resident or domiciliary who cannot be served personally
** (iii) D is about to conceal or remove assets from NY w/ the indent to defraud creditors or frustrate the enforcement of a judgment
(iv) action is brought to enforce a judgment
(v) action is by a felony victim to recover from a convicted D who earned profits from the crime;
AND
4- The claim exceeds all known counterclaims
- Attachment:
- can you seek before service of process
- is prior notice required
- do you need an undertaking
- who is it directed at
- yes, but must serve w/in 60 days
- prior notice is not required (can obtain ex parte but w/ additional requirements)
- undertaking of at least $500
- directed to sheriff
- Attachment:
- what additional requirements must be met when getting ex parte?
DP REQUIRES:
after the sheriff levies on Ds property, P must
(1) make a follow up motion to confirm the attachment ON NOTICE to the D.
(2) The motion to confirm must be made by order to show cause so that there can be an expedited return date.
EX PARTE ATTACHMENT: TIMING FOR THE MOTION TO CONFIRM
If D is an unlicensed foreign corp OR a non-domiciliary residing outside NY –> motion must be served on D no later than 10 days after the sheriff levies
If D is fraudulently moving assets –> no later than 5 days after the sheriff levies
Preliminary Injunction
- what is it
- types of actions where it may be used
- order enjoining someone from doing something
- used to maintain the status quo while an EQUITY action is pending
- can be used in an EQUITY action in which Ps complaint seeks EITHER: (1) permanent injunction; or (2) if D threatens to harm Ps interest in the matter
NOTE: An action that seeks SOLELY MONEY DAMAGES WILL NOT SUPPORT A PRELIMINARY INJUNCTION. E.g., π sues Δ for nonpayment of a $80,000 debt. Prior to judgment, π cannot enjoin Δ from transferring assets or spending money. π’s only possible remedy in a purely money action is attachment
Procedure/Requirements for getting a Preliminary injunction:
- must be made ON NOTICE at least 8 days before return date
- served w/ or after (NOT BEFORE) the summons
- Ps affidavits must show the grounds for equitable relief, including a threat of irreparable injury
- P must show a probability of success on the merits of the underlying CoA
- P must provide an UNDERTAKING to indemnify the D for damages if it is later determined that the preliminary injunction was improperly granted, regardless of the ultimate outcome
When is D entitled to damages after an attachment?
(1) attachment made by improper procedure; OR
(2) D ultimately wins the case on the merits
Temporary Restraining Order: TRO
- In a case involving a threat of immediate injury, a P can ask the court to grant a TRO ex parte. The
TRO maintains the status quo for the brief period while the motion for preliminary injunction is being litigated
PROCESS
- P commences an action seeking equitable relief
- P moves by ex parte order to show cause for a preliminary injunction to maintain status quo until overall action is resolved
- In the order to show cause, P requests a TRO to obtain immediate injunctive relief to maintain status quo until the motion for the preliminary injunction is decided. This ex parte application for a TRO must contain an affidavit demonstrating that there will be SIGNIFICANT PREJUDICE to the party seeking the TRO if notice is provided to the adversary.
Temporary Receivership: what is a temporary receiver?
Court-appointed disinterested person who is appointed to manage or oversee some property
The idea is for the receiver to preserve the asset so that one of the parties doesnt run it into the ground
Temporary Receivership: What types of actions is it available?
1- P must be asserting an EQUITY claim in which SPECIFIC PROPERTY IS THE SUBJECT MATTER of the action; AND
2- there must be a DANGER that D will injure or destroy the value of the property while the action is pending
Temporary Receivership: Ex parte or on notice?
MUST BE MADE BY MOTION ON NOTICE
Seizure of Chattel/Replevin
- actions available?
Action which seeks to recover possession of tangible personal property.
[permits P litigating his right to possession of a chattel to obtain possession of the chattel pending suit or to have the chattel removed from the Ds custody pending suit.]
Seizure of Chattel/Replevin
- on notice or ex parte?
- can be made on notice or ex part
- there are additional requirements for an ex parte motion
