CIVIL PROCEDURE
A Federal court can order a prejudgement remedy if the state in which it sets provides for a prejudgement remedy
1. or the Federal Law provides for it – needs to be some authority
2. constitutionality of prejudgement remedies
· types of prejudgement remedies
i. pre-judicial attachments
1. maintain dignity interest
2. what the risk of a wrongful taking is
3. bond (by Plaintiff)
4. exigent circumstances nullify these
a. important governemnt interest
b. special need for prompt action
c. process must be under the control of a govermment entity or court supervision
5. judicial review of the affidavit
a. post seisure of the affidavit is purely immediate
b. specific allegations are not conclusory —
c. showing of the right
6. hearings can not be examples of due process because
a. There is a hearing given before – immediately after without the person having to file their own suit
i. One would need to pay damages for wrongful issuance of the writ – legal fees
ii. The sum of all of these differences, under the facts of the Mitchell case, one doesn’t need to provide prior notice and an opportunity to be heard.
iii. The question is what is so special about these characteristics that they trump prior notice and an opportunity to be heard
iv. This is still an ex-parte hearing
b. Some courts have found value in a hearing over just a written statement of objections to a claim
7. Grant and not having exigent circumstances –
8. has to be something that was the object of the dispute
a. Test that the court applies in Doher
i. Protect Defendant’s interest
ii. Risk of eroneous depravation
1. Where did the dignity interest go
iii. Most significant weight is given to the Plaintiff’s interest
b. State action question
i. This was state action
ii. But, it could be that although the state wasn’t the Plaintiff, the logic can apply because the state executes the attachemtn
iii. So, this would apply to private reposessions
9. From Fuentes there guidelines for exigent circumstances
a. It fits one of the requirements of the Fuentes exception, that it is a need for immeadiate action—hypothetically it would be giving them notice to
ount, no early hearing was provided, altough the defendant could repossess by posting a counter-bond
i. Statute authorizing seizsure without a hearing must have the following provisions
1. Credit most post a pbond to safegrad interest of the debtor
2. Creditor or someone with personal knowledge of the facts myust file file a affividavit which sets out a prima facia claim for pre-judgment attachment of the property
3. Neutral magestrate must determine that the affidavit is sufficient before issuing the writ of attachment or replevin
4. Ther must be a provision for a reasonably prompt post-attachment hearing for the debtor
ii. Pre-notice might not really bre with it for people who lack the intellectual capacity to take advantage of the courts
c. To get quasi-in rem jurisidciton, prejudicicial attachment might be necessary
i. With quasi in rem judgment there is LIMITED LIABILITY.
