Provisional Remedies Flashcards
5 types of preliminary remedies
- attachment
- preliminary injunction
- temporary receivership
- an order seize chattel in an action to recover chattel (replevin)
- notice of pendancy
Do you need court order for any provisional remedy? EXCEPTION?
All of them EXCEPT NOTICE OF PENDANCY
- Main purpose of attachment (provisional remedy)?
2. How? What does sheriff do?
- Provide security re money judgment plaintiff is going to get.
- P obtains order of attachment, which sheriff levies on D’s property IN NY, giving P lien on property. Sheriff files order of attachment with county clerk.
Re attachment:
- 3rd P who holds D’s property or owes D debt?
- How does sheriff levy on personal property?
- A “GARNISHEE”, e.g., the bank holding the D’s money.
- Sheriff delivers order to person in NY who holds D’s personal property interest (D or garnishee). This IMPOSES A LIEN ON THE PROPERTY AND ENJOINS TRANSFER OF PROPERTY pending outcome of action.
In what types of action can you seek an order of attachment? Reqs (2)?
Must be seeking $ damages AND EITHER OF NEXT TWO:
A. If D is foreign unlicensed corp or non-domiciliaries residing outside NY or
B. If D is about to conceal or remove assets from NY to frustrate creditors or enforcement of a judgment.
Procedure for P to get order of attachments: 3 reqs?
- Affadavits have to show one of the 2 grounds for attachment;
- Affadavits must show probability of success on the merits for P’s CoA;
- P must provide UNDERTAKING - a bond - to indemnify D for any damages caused by the attachment (e.g. D gets damages if attachment made by improper procedure or if D wins case on merits)
- Motion for attachment: made on notice or ex parte, which?
2. If ex parte, what’s req’d for due process?
- Either works. Most P choose ex parte to avoid D responding.
- Due process reqs D has opportunity for prompt hearing after levy on property so D can contest attachment. P then has to make motion on notice to confirm the ex parte motion – this has to be made by order to show cause so that there’s an exasperated return date.
Time limits for motion to confirm ex parte attachment (1) for foreign unlicensed corp or nondomiciliary? Or (2) where D is fraudulently hiding his assets?
(1) no later than ten days after the levy
(2) no later than five days after the levy
Preliminary injunction: 1. Purpose? 2. When can it be used (2 general options)?
- Maintain status quo while equity action is pending.
- Equity claim where P’s action seeks permanent injunction or, more generally, D threatens to harm P’s interest in subject matter of the action (e.g., P seeking to get something back, and D says they’ll transfer it to someone).
Can you get prelim injunction purely for $ damages claim?
No.
Motion for prelim injunction can be made ex parte? Reqs for motion?
NO. ONLY ON NOTICE. Reqs: Affadavits must show THREAT OF IRREPARABLE INJURY + probability of success on merits + undertaking (bond) for D’s possible damages (in case P.I. later shouldn’t’ve been granted)
How does TRO relate to prelim injunction? Do you get TRO ex parte?
Prelim injunction isn’t immediate. You get TRO for IMMEDIATE relief for possible IMMEDIATE INJURY. Get the TRO ex parte.
TRO maintains status quo for brief period while prelim injunc is being litigated – get it ex parte.
What’s the earliest you can get a prelim injunct?
With service of process on D.
How do you make motion for prelim inj? How does TRO fit in?
Make motion for prelim inj by order to show cause. Go to court, tell judge to make order to show cause and ask for TRO. Judge will set early hearing date for prelim inj hearing. Upon serving TRO, D is immediately enjoyed through litigation of preliminary injunction.
Temporary receivership: 1. Def? 2.When available? 3. Available for $ damages? 4. Motion ex parte okay?
- Person appointed by court to manage property in D’s possession.
- P asserting equity claim w/ particular property subject matter thereof, where D may endanger or destroy value of property.
- Can’t be $ damages.
- Ex parte won’t work. Must be motion on notice.
