Provisional Remedies Flashcards
What is the procedure for attachment?
1) π makes a motion for an order of attachment (can be motion on notice or ex parte). Affidavits in support of the motion 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. The motion to confirm must be made by order to show cause so there can be an expedited return date. NOTE: If follow-up motion is not w/in proper # of days then VOID. 2 separate time limits for making the motion to confirm, depending on the grounds for attachment: ∆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 (e.g. π sues ∆ for $70k debt owed; cannot get injunction to stop ∆ from spending money); 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. Requirements: i) The π’s affidavits must show grounds for equitable relief, including a threat of irreparable injury ii) a probability of success on the merits of underlying c/a iii) 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 (e.g. he would run off or give the stock away)
How does a party obtain atemporary restraining order (TRO)?
Make the motion for preliminary injunction (by order to show cause) to maintain status quo until overall action is resolved. In the order to show cause, π requests TRO to obtain immediate injunctive relief to maintain status quo until the motion for the preliminary injunction is decided.
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 (i.e. takes over the mgmt of ∆’s property) 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. NOTE: if the action seeks ONLY $ damages, temporary receivership is NOT available
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?
Seizure of chattel is available in an action seeking to recover possession if chattel. An “order of seizure” ensures enforcement of the judgment awarding possession. The sheriff seizes the chattel and retains custody (“impoundment”)
Procedure: In order to make a motion for anorder of seizure…π’s affidavits must show π will probably succeed on merits of underlying c/a AND π must provide an undertaking (indemnity to ∆ in case of damages of wrongful seizure). NOTE: the motion can be made on notice OR ex parte 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 w/in 5 days of the seizure to CONFIRM the ex parte order
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= make a motion to cancel notice of pendency
* A notice of pendency is effective for 3 YEARS from date of filing. π can move for a 3 yr extension of a notice of pendency, but must make the action prior to the expiration of the original period. Failure to do so results in a void notice of pendency w/ no further effect and π cannot obtain another notice of tendency on the same property for the same c/a EXCEPT in the case of mtg foreclosure
What are the 5 provisional remedies?
1) attachment 2) preliminary injunction 3) temporary receivership 4) order to seize chattel in action to recover the chattel (replevin) 5) notice of pendency
