Provisional Remedies

Front 1

What is the purpose of provisional remedies?

Back 1

As lawsuits can take time, provisional remedies give P's security while litigation is pending

Front 2

What are the five kinds of provisional remedies?

Back 2

PRATL

Preliminary injunction, Replevin, Attachment, Temporary Receivership, Lis Pendens

Front 3

What is the purpose of attachment?

Back 3

Secure assets to ensure enforcement of potential money judgment

Front 4

How a plaintiff get an order of attachment?

Back 4

1. D is either "outsider" or "defrauder"
2. P seeking at least some money damages
3. Probability of P's success on the merits on underlying claim
4. Provide undertaking
5. File motion on notice to confirm ex parte order by order to show cause (10 day limit for outsider, 5 day limit for defrauder)

Front 5

Can the plaintiff get an attachment ex parte?

Back 5

Yes, but if allowed, D must be allowed prompt hearing after levy in place.

Front 6

How does court enforce an attachment?

Back 6

1. Court gives levy order to sheriff
2. If real property, sheriff files order with clerk of county where property located; if personal property, sheriff delivers order to person holding property (D or garnishee)
3. Delivery places lien on property, giving P superiority to other creditors

Front 7

When might D get damages from attachment?

Back 7

1. Attachment made via improper procedure
2. D wins the case on the merits

Front 8

What is the purpose of a preliminary injunction?

Back 8

Maintain the status quo while an equity action is pending

Front 9

When can a preliminary injunction be granted?

Back 9

1. P is seeking a permanent injunction
2. D is threatening to harm P's interest in subject matter of action

Front 10

When can a preliminary injunction NOT be granted?

Back 10

Where P is seeking solely money damages (attachment the right remedy in that situation)

Front 11

How does P get a preliminary injunction?

Back 11

1. Make a motion on notice
2. Make motion with or after service of summons
3. Show grounds for equitable relief via supporting affidavits
4. Show probability of success on the merits of the cause of action
5. Provide an undertaking

Front 12

What is a temporary restraining order?

Back 12

Where relief is needed by P faster than 8 day minimum for preliminary injunction (fasted you can get a return date), TRO is an ex parte motion that maintains status while litigation of preliminary injunction is litigated

Front 13

How does P get a TRO?

Back 13

1. Make motion for Preliminary Injunction by order to show cause
2. Ask judge for early return date on motion
3. Ask judge to include a TRO.

Front 14

What effect does a TRO have?

Back 14

D is immediately enjoined by TRO from acting pending the resolution of the PreJ motion

Front 15

What is a temporary receivership?

Back 15

Court assigns management of D's property to a 3P

Front 16

When can a temporary receivership be granted?

Back 16

1. P asserting equity claim
2. Specific property is subject matter of claim
3. Danger that D will injure or destroy value of property while action is pending

Front 17

When can temporary receivership NOT be granted?

Back 17

Where P is seeking solely money damages

Front 18

Can P achieve temporary receivership ex parte?

Back 18

NO, motion on notice is required

Front 19

What is a writ of replevin?

Back 19

Order permitting sheriff to seize and retain custody of chattel

Front 20

When can a writ of replevin be granted?

Back 20

ONLY in an action to recover possession of a chattel

Front 21

What is chattel?

Back 21

tangible personal property (including animals)

Front 22

How does P obtain writ of replevin via a motion on notice?

Back 22

Show probability of success on the merits of CofA
Provide undertaking

Front 23

How does P obtain writ of replevin ex parte?

Back 23

1. Show threat of immediate loss of chattel
2. Make follow-up motion on notice to confirm ex parte parte order no more than 5 days after seizure

Front 24

What is "impoundment"?

Back 24

Where sheriff seizes and retains possession of a chattel under a writ of replevin

Front 25

What is a notice of pendency?

Back 25

Gives record notice to any potential buyers or mortgagees that any interest acquired in property will be subordinate to P, making title unmarketable

Front 26

When can a notice of pendency be used?

Back 26

1. Equity action
2. Judgment will have direct effect on title, possession, or use of real property

(specific performance; ejectment; constructive trust; mortgage foreclosure)

Front 27

How can P get an order of pendency?

Back 27

File a notice of pendency with the County Clerk of the county in NY where property is located

(no advance notice or undertaking required)

Front 28

What is D's remedy for erroneous notice of pendency?

Back 28

Make a motion to cancel the notice of pendency

Front 29

Is notice of pendency still valid?

Back 29

1. Original pendency lasts 3 years
2. Extensions for 3 years but only if filed for before prior one expires
3. If pendency expires, it is void and P can't get another notice of pendency on same property for same cause of action UNLESS mortgage foreclosure

Front 30

Can P request multiple equitable remedies?

Back 30

No. If P can show grounds for multiple remedies, Court has discretion to elect between remedies to she would otherwise be entitled