Provisional Remedies Flashcards
What is the procedure behindattachment?
1) π makes a motion for an order of attachment (can be motion on notice or ex parte) REVIEW: what are the additional requirements if motion is made ex parte??
2) Affidavits in support must show one of the grounds for attachment (i.e. real property or personal property) AND “probability of success” on the merits of the π’s underlying c/a
3) π must provide an undertaking (i.e. a bond) to indemnify the ∆ for any damages or expenses caused by the attachment ∆ would be entitled to damages if attachment improperly obtained OR the ∆ wins the case on the merits & the bond is there to pay damages
4) Order of attachment is given to a NY sheriff who imposes “levy” (i.e. a lien by π that’s superior to any subsequent lienholder) on the property pendng the outcome of the action; levying method depends on property type… Real Property:sheriff files order of attachment w/ the county clerk in county where RP located Personal property: sheriff delivers order of attachment to the person in NY who holds ∆’s personal property interest (∆ himself or garnishee) Personal property qualifying»_space; tangible (car, boat) or intangible (e.g. debt owed to ∆) Garnishee = 3d person who owes a debt to the ∆ or has possession of the ∆’s tangible personal property (e.g. bank) Delivery automatically imposes lien on personal property & serves as an injunction against transfer of the property for the duration of the action
What is attachment?
Purpose = to provide security for the enforcement of a money jdgmt
Types of actions where attachment can be used…
π must be seeking money damages (OK to join other claims seeking equitible relief); AND ∆ is an unlicensed foreign corp OR a non-domicilary residing outside of NY; OR ∆ is about to concealOR remove assets from NY w/ the intent to defraud creditors or frustrate the enforcement of the jdgmt
What are the additional requirements for an ex parte motion for attachment?
To satisfy due process:
1) Must be a hearing promptly after the levy on ∆’s property to give the ∆ opportunity to protest the attachment; AND
2) After the sheriff levies on the property, the π must make a follow-up motion on notice to confirm the ex parte order(It is on that motion that there will be a prompt hearing)
3) Timing
NOTE: If follow-up motion is not w/in proper # of days then VOID
∆unlicensed foreign corp. or non-domiciliary of NY» motion must be served on ∆ NO LATER than 10 DAYS after levy
∆ fraudulently moving assets» motion must be served on ∆ NO LATER than 5 DAYS after levy
What is a preliminary injunction?
Purpose: to maintain the status quo while an equity action is pending
Types of actions in which a preliminary injunction may be used…
Must be an EQUITY action where π’s complaint seeks EITHER: permanent injunction, OR if ∆ threatens to harm the π’s interest in the subject matter of the action
NOTE: cannot be ONLY for $ damages; if ONLY for $$, proper remedy is ATTACHMENT
What are the 5 provisional remedies?
1) Attachment
2) Preliminary injunction
3) Temporary receivership
4) Order to Seize Chattel/Replevin
5) Notice of Pendency/Lis Pendens
NOTE: if π shows grounds for MORE than 1 provisional remedy, the ct has DISCRETION TO REQ π to elect b/t those remedies to which she would otherwise be entitled
What are the purpose of provisional remedies?
Provide π a measure of security pending the outcome of the case so that ultimately the judgment may be enforced.
NOTE:ct order required for all provisional remedies EXCEPT notice of pendency (so motion procedure pervades this area)
NOTE: ea. provisional remedy can ONLY be used in certain types of actions (which the exam places emphasis on)
What is the proper procedure for apreliminary injunction?
1) Motion for preliminary injunction must be made ON NOTICE
Can be served w/ OR after the summons and any time up to final judgment
2) The π’s affidavits must show: grounds for equitable relief, including a threat of irreparable injury
a probability of success on the merits of underlying c/a
3) Must provide undertaking (indemnity) for ∆’s damages (if later later determined that PI shouldn’t have been granted)
What is a temporary restraining order (TRO)?
IF there is a threat of immediate injury court may grant a TRO b/c obtaining a prelim injunction may NOT be possible(b/c action is not yet commenced AND/OR would take too long b/c 8 DAY advance notice requirement)
Function is to maintain the status quo until the motion for preliminary injunction is decided
Can be granted ex parte if the π shows that giving prior notice of it to ∆ would result in significant prejudice
How does a party obtain atemporary restraining order (TRO)?
Make the motion for preliminary injunction by order to show cause,scheduling a quick return date for the motion for preliminary injunction
In the order to show cause, the judge can include TRO
Order is then served on the ∆ along w/ the motion papers for the preliminary injunction
Upon service, ∆ is IMMEDIATELY restrained by the TRO, pending the resolution of the preliminary injunction motion
NOTE: any 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
What is temporary receivership & the necessary procedure?
Temporary receiver = person appointed by the ct to manage property in the ∆’s possession
Types of actions for which temporary receivership is available:
π must be asserting an EQUITY claim in which specific property is the subject matter of the action;AND there is danger that ∆ will injure or destroy the value of the property while the action is pending
Procedure:
Appt of a temporary reciever requires the making of a motion on notice…NO ex parte motions allowed
What is seizure of chattel (replevin) & the necessary procedure?
Action (“order of seizure”) made by ct to ensure enforcement of a jdmt awarding posession of the chattel to π. The sheriff, who seizes the chatte, will retain custody of the chattel (“impoundment”)
Type of action in which available:
only available in an action that seeks to recover possession of a chattel (tangible personal property)
Procedure: In order to make a motion for anorder of seizure
1) π’s affidavits must show π will probably succeed on merits of underlying c/a 2) π must provide an undertaking (indemnity to ∆ in case of damages of wrongful seizure) 3) ADDITIONAL (due process) reqs if motion is made EX PARTE π must show a threat of IMMEDIATE loss of a chattel; AND if ex parte order is granted, π must make a FOLLOW-UP motion on notice to CONFIRM the ex parte order NO LONGER THAN 5 days after sheriff seizes chattel (this is where ∆ gets a prompt hearing to protest action)
What is a notice of pendency (lis pendens) & the necessary procedure?
In an EQUITY action effecting possession, use or title of REAL PROPERTY (e.g. specific performance, ejection, etc), filing of notice of pendency gives record notice to potential buyers or mortgagees that any interest they acquire will be subordinate to π For mortgage foreclosure, lis pendens is statutorily required
Procedure: π files notice of pendency with the Cty Clerk of the cty in NY where real property is located
This is the ONLY provisional remedy that does NOT need a ct order
π is NOT required to file an undertaking (i.e. file a bond to indemnify ∆)
∆’s only remedy= motion to cancel notice of pendency
Duration:
Effective for 3 YEARS from date of filing If action goes beyond 3 years then π would have to make a motion for a 3-year extension;MUST make the motion PRIOR to the expiration → if after: lis pendens becomes VOID;AND π cannot obtain another one on the same property for the same c/a
EXCEPTION: in mortgage foreclosures, the ct may grant a motion for a new notice of pendency EVEN THOUGH the original notice expired w/o renewal (b/c notice of pendency in mtg situations is MANDATORY)
