Provisional Remedies Flashcards
ATTACHMENT
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) π submits affidavits in support of motion which must show
(i) it is a type of action for which attachment may be used; AND
(ii) there is a “probability of success” on the merits of the π’s underlying CoA
3) π must provide an undertaking (i.e. a bond) to indemnify the ∆ for any damages or expenses caused by the attachment
Note: ∆ would be entitled to damages if:
(i) attachment improperly obtained; OR
(ii) the ∆ wins the case on the merits & suffers damages from the attachment
4) Order of attachment is given to a NY sheriff who imposes “LEVY” on the property pending the outcome of the action
LEVY = a lien by π that’s superior to any subsequent lien holder
→ LEVY can be made on real property or personal property LOCATED IN NY
Levying method depends on property type…
Real Property:sheriff files order of attachment w/ the county clerk in county where the real property is located
Personal Property: sheriff delivers order of attachment to the person in NY who holds ∆’s personal property interest (∆ himself or garnishee)
Note: Personal property qualifying = tangible (car, boat) or intangible (e.g. debt owed to ∆)
Note: Garnishee = 3rd person who owes a debt to the ∆ or has possession of the ∆’s tangible personal property (e.g. bank or ∆ herself –e.g. car in her garage)
Note: The Delivery of the order of attachment automatically imposes lien on personal property & serves as an INJUNCTION AGAINST TRANSFER of the property for the duration of the action
ATTACHMENT
What is attachment?
MOST TESTED PROVISIONAL REMEDY
Purpose = to provide security for the ENFORCEMENT of a MONEY JUDGEMENT
Types of actions where attachment can be used…
- π must be seeking money damages (OK to join other claims seeking equitible relief); AND
- EITHER:
(a) Attachment Category #1: ∆ is an unlicensed foreign corp OR a non-domicilary residing outside of NY; OR
(b) Attachment Category #2: ∆ is about to concealOR remove assets from NY w/ the intent to defraud creditors or frustrate the enforcement of the jdgmt
ATTACHMENT: EX PARTE ATTACHMENT
What are the additional requirements for an ex parte motion for attachment?
To satisfy due process in an ex parte attachment:
1) There 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
Note: The follow up motion must be made on order to show cause b/c this ensures a quick return date
→ It is on that motion that there will be a prompt hearing
NOTE: If follow-up motion is not w/in proper # of days then IT IS VOID
3) TIMING RQMT FOR FOLLOW UP MOTION:
IF ∆ IS:
(a) Attachment Category #1 (∆is unlicensed foreign corp. or non-domiciliary of NY)→ motion must be served on ∆ NO LATER than 10 DAYS AFTER LEVY on ∆’s property
(b) Attachment Category #2 (∆ is fraudulently moving assets) → motion must be served on ∆ NO LATER than 5 DAYS AFTER LEVY on ∆’s property
PRELIMINARY INJUNCTION
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
5 PROVISIONAL REMEDIES
What are the 5 provisional remedies?
The 5 Provisional Remedies Are:
1) Attachment
2) Preliminary injunction
3) Temporary receivership
4) Order to Seize Chattel/Replevin
5) Notice of Pendency/Lis Pendens [ONLY provisional remedy that DOES NOT require Ct. order]
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
NOTE: Each provisional remedy can ONLY be used on certain types of ACTIONS [Study CONVISER CHART!]
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 emphasisi on)
PRELIMINARY INJUNCTION PROCEDURE
What is the proper procedure for apreliminary injunction?
1) Motion for preliminary injunction must be made ON NOTICE
2. The motion papers can be served w/ OR after the summons and any time up to final judgment
3) REQUIREMENTS FOR THE MOTION → The π’s affidavits must show:
(a) grounds for equitable relief, including a threat of irreparable injury
(b) a probability of success on the merits of underlying c/a
(c) Must provide undertaking (indemnity) for ∆’s damages (if later later determined that PI shouldn’t have been granted)
TEMPORARY RESTRAINING ORDER
What is a temporary restraining order (TRO) and when is it used instead of a preliminary injunction?
IF there is a threat of immediate injury court may grant a TRO b/c obtaining a prelim injunction may NOT be possible
→ The preliminary injunction may not be available b/c the action is not yet commenced AND/OR would take too long b/c 8 DAY advance notice requirement
Function of TRO is to maintain the status quo until the motion for preliminary injunction is decided
The TRO 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)
TEMPORARY RESTRAINING ORDER PROCEDURE
How does a party obtain atemporary restraining order (TRO)?
To obtain a TRO, A PARTY MUST:
- Make the motion for preliminary injunction BY ORDER TO SHOW CAUSE
(a) Go to Judge ASKING her to sign an ORDER TO SHOW CAUSE scheduling a quick return date for the motion for preliminary injunction
(b) Then in the order to show cause, the judge can include the TRO - If Granted, Order to Show Cause 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
RECAP:
1. π commences an action seeking equitable relief
- π moves by ORDER TO SHOW CAUSE for a preliminary injunction to maintain status quo until the overall action is resolved
- In the ORDER TO SHOW CAUSE, π request TRO to obtain IMMEDIATE injunctive relief to maintain status quo until the motion for the preliminary injunction is decided
TEMPORARY RECEIVERSHIP
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 MUST be a 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 (Seek attachment instead)
Procedure…
The appointment of a temporary reciever requires the making of a motion on notice…NO ex parte motions allowed
SEIZURE OF CHATTEL
What is seizure of chattel (replevin) & the necessary procedure?
Seizure of Chattel = An Action seeking to regain access of a chattel (e.g. stolen laptop, or any other chattel that was mandated by order to be delivered to π)
Function of THE ORDER OF SEIZURE = An order by the court to ensure enforcement of a jdmt awarding possession 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)
Note: If the chattel is lost or destroyed while the action is pending, the judgement will be limited to the monetary value of the chattel
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 to CONFIRM the ex parte order NO LONGER THAN 5 days after sheriff seizes chattel (this is where ∆ get’s a prompt hearing to protest action)
NOTICE OF PENDENCY
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
ESSENTIALLY RENDERS TITLE UNMARKETABLE
Types of Action in Which it May be Used:
An EQUITY action in which the judgement will have a direct effect on tile, possession, or use of real property, e.g. specific performance, ejectment.
Note: 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
Note: This is the ONLY provisional remedy that DOES NOT REQUIRE A COURT ORDER
***Very strictly construed remedy b/c it is so easy to get
- 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
EXTENSION: 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)
