Provisional Remedies

Question 0

Plaintiff requirements for requesting a Provisional Remedy

Answer 0

state if provisional remedy has been
requested or granted
in the same action
against the same defendant

Question 1

Provisional Remedies

RAINS

Answer 1

Receivership
Attachment
Injunction
Notice of Pendency
Seizure of Chattel

Question 2

Grounds for Receivership

Answer 2

danger property is removed, lost, damaged or destroyed,

Question 3

Effect of a non-party making a motion for receivership

Answer 3

such notice is considered an appearance

Party is joined as a party to the action

Question 4

Temporary Receivership

Answer 4

appointed on motion of any person having interest in property
involved in an action in supreme or county court.

court sets powers of receiver
includes authority to sue for, collect, and sell debts or claims.

Receiver keeps written accounts itemizing receipts and expenditures, describing the property, and name depository of funds

Question 5

What actions is an order of attachment available?

Answer 5

Any action except matrimonial.

matrimonial actions have similar order for “sequestration”.

Question 6

When is a Plaintiff entitled to an order of attachment?

Answer 6

Just For Very Few
Jurisdictional - non-domiciliary - seeking in rem jurisdiction
Frustrating creditors - attempting to dispose of property
Victims of crime
Full faith and credit judgement

Question 7

Superiority of P’s rights under an order of attachment

Answer 7

P delivers an order of attachment to a sheriff,

P’s rights are superior to rights of any other transferee.

Question 8

When can an order of attachment be granted?

Answer 8

Without notice,
before or after service or summons,
any time prior to judgement.

Orders w/o notice require motion with notice before property can be levied upon (seized in satisfaction of the judgement)

Question 9

Affidavit requirements for an order of attachment

Answer 9

establish more than a prima facie case stating:

1. there is a CoA
2. probable succeed on the merits
3. one or more grounds for attachment exists; and
4. amount demanded exceeds all counterclaims known to P

Question 10

Grounds for a Preliminary Injunction

Answer 10

D may violate rights in connection with the subject of action
rendering the judgement ineffectual or
refrain action that would injure P.

Question 11

Grounds for a Temporary Restraining Order

Answer 11

hearing preliminary injunction is pending and

immediate and irreparable injury, loss, or damages unless restrained.

Question 12

Requirements for Preliminary Injunction

Answer 12

Notice
Showing of likelihood of success on the merits
Inadequate damages
Irreparable injury would result
No equitable defense exists

Question 13

Preliminary Injunction seeking to restrain a public officer,
board or municipal corporation from performing a statutory duty

Answer 13

granted only by Supreme Court located

a. where the officer, board, or municipal corporation is located; or
b. where the duty must be performed

Question 14

Showing necessary for a successful motion for a preliminary injunction

Answer 14

show by affidavit and supporting evidence that:

1. A CoA exists and
2. D is threatening to violate P’s rights in regard to the action or
   2a. P is entitled to judgement restraining D from act injuring P

Question 15

TRO requirements and differences v. Preliminary injunction

Answer 15

show immediate and irreparable injury will occur unless D is restrained.

May grant without notice.
except: labor dispute, action or against a public officer, board or municipal corporation to restrain the performance of a statutory duty.

Must be personally served in the same manner as a summons
Court may request an undertaking

Question 16

Courts request for an undertaking

Answer 16

includes posting a bond to cover damages

if restraining order in error.

Question 17

Vacating or modifying a preliminary injunction or TRO

Answer 17

D can move to vacate or modify at any time on notice to P

without notice to judge who granted it.

Question 18

Notice of Pendency - defined

Answer 18

Notice of pending litigation affecting interest in real property

constructive notice from date of filing against other claims

any action affecting title, use, possession, or enjoyment of property.

Subsequent purchasers are bound by judgement

Question 19

Filing Requirements of a Notice of Pendency

Answer 19

filed with clerk in county where property is and

1. name parties to action
2. the object of the action; and
3. a description of the property

Question 20

Time frame of effect of Notice of Pendency

Answer 20

Effective 3 years from date of filing.

extended by court prior to expiration on P’s motion

Question 21

When the court must direct the cancellation of the Notice of Pendency

Answer 21

1. Service of summons not completed in time
2. Action settled, discontinued, or abated
3. Time to appeal expired
4. Enforcement of final judgement not stayed.