Provisional Remedies Flashcards
Plaintiff requirements for requesting a Provisional Remedy
state if provisional remedy has been
requested or granted
in the same action
against the same defendant
Provisional Remedies
RAINS
Receivership Attachment Injunction Notice of Pendency Seizure of Chattel
Grounds for Receivership
danger property is removed, lost, damaged or destroyed,
Effect of a non-party making a motion for receivership
such notice is considered an appearance
Party is joined as a party to the action
Temporary Receivership
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
What actions is an order of attachment available?
Any action except matrimonial.
matrimonial actions have similar order for “sequestration”.
When is a Plaintiff entitled to an order of attachment?
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
Superiority of P’s rights under an order of attachment
P delivers an order of attachment to a sheriff,
P’s rights are superior to rights of any other transferee.
When can an order of attachment be granted?
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)
Affidavit requirements for an order of attachment
establish more than a prima facie case stating:
- there is a CoA
- probable succeed on the merits
- one or more grounds for attachment exists; and
- amount demanded exceeds all counterclaims known to P
Grounds for a Preliminary Injunction
D may violate rights in connection with the subject of action
rendering the judgement ineffectual or
refrain action that would injure P.
Grounds for a Temporary Restraining Order
hearing preliminary injunction is pending and
immediate and irreparable injury, loss, or damages unless restrained.
Requirements for Preliminary Injunction
Notice Showing of likelihood of success on the merits Inadequate damages Irreparable injury would result No equitable defense exists
Preliminary Injunction seeking to restrain a public officer,
board or municipal corporation from performing a statutory duty
granted only by Supreme Court located
a. where the officer, board, or municipal corporation is located; or
b. where the duty must be performed
Showing necessary for a successful motion for a preliminary injunction
show by affidavit and supporting evidence that:
- A CoA exists and
- 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
TRO requirements and differences v. Preliminary injunction
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
Courts request for an undertaking
includes posting a bond to cover damages
if restraining order in error.
Vacating or modifying a preliminary injunction or TRO
D can move to vacate or modify at any time on notice to P
without notice to judge who granted it.
Notice of Pendency - defined
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
Filing Requirements of a Notice of Pendency
filed with clerk in county where property is and
- name parties to action
- the object of the action; and
- a description of the property
Time frame of effect of Notice of Pendency
Effective 3 years from date of filing.
extended by court prior to expiration on P’s motion
When the court must direct the cancellation of the Notice of Pendency
- Service of summons not completed in time
- Action settled, discontinued, or abated
- Time to appeal expired
- Enforcement of final judgement not stayed.
