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6 Cards in this Set
- Front
- Back
Overview |
1) Attachment 2) Preliminary Injunction 3) Temporry Receivership 4) Order to Sieze Chattel - Replevin 5) Notice of Pendency
-- all require court order, except notice of pendency |
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1. Atatchment |
Purpose: -- to provide security for enforcement of money judgment
Requirements: 1) Money Damages (could be in addition to others), AND 2) D is an unlicensed foreign corp, or non-domiciliary, OR 3) D is about to conceal or remove assets from NY with intent to defraud creditors or frustrate judgment
Procedure: 1) affidavit showing grounds + MONEY damages 2) probability of success on merits by P 3) put up a bond to indemnify D for damage that might be caused
Motion for Attachment 1) on notice, OR 2) Ex parte --- DP requires prompt hearing after seizure --- P must make followup motion to confirm atatchment ---- must be through order to show cause TIME to serve: -- 10 days if forein corp -- 5 days if fraduelntly moving assets
Steps: -- obtain order of attachment from court -- give it to sheriff -- Sheriff levies order upon property -- imposes a lien on prop and creates a security interest in porp for P -- freezes the prop.
Method for levying order on real property: -- sheriff files it with the county clerk where prop is located
Property: -- 1) tangible (boat, car etc.) -- 2) debt ovwed to D (bank account) ---- TP who owes debt -- garnishee
Method for levying order on personal prop: -- sheriff delivers order of attachment to person in NY holding int (D or agrnishee) -- imposes lien -- serves as injunction agains transfer
D gets damages if: -- attachment by imporper procedure -- D wins on merits
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2. Preliminary Injunction |
Purpose: -- To mainain status quo while an action is pending -- Not available where only money damages is sought
Available when P is seeking: 1) permanent injunction, 2) threatens to harm P's interest in subject matter of action
Procedure: 1) Aff showing grounds including threat of irreparable harm 2) prob of success on merits 3) bond
TRO -- IMMEDIATE injunctive relief BY: -- making motion for prelimnary injunction by order to show cause -- scheduling an expedited return date for motion ---- Judge will give TRO in order to show cause
Any Ex Parte application for TRO must contain affidavit demonstarting that "significant prejudice" will result if notice is provided to adversary. |
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3. Temporary Receivership |
Person appointed by court to manage property
-- Equity claim: not available where only MONEY damages sought -- Must be a danger that D will injure or destroy value of prop -- motion must be on notice
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4. Seizure of Chattel (Replevin) |
Available when seeking to recover possession of personal property
-- sheriff who siezes, will retain custody - impoundment
P must show: -- he'll prob succeed -- bond
On Notice or Ex Parte: -- If ex parte: --- must show threat of immediat harm, AND ---- motion in notice within 5 days
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5. Notice of Pendency |
Equity Action - in which the judgment would have direct effect on real property
-- gives notice to potential buyers and renders title unmarketable
-- Statutorily required in mortgage foreclosure action
-- P files the notice with county clerk where prop is located
-- D can make motion to cancel notice
Notice is effectve for 3 yrs. -- failure to apply for extension, ends the notice and procludes future notices (except in foreclosure action)
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