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Unformatted text preview: New York Debtor Creditor Law Prejudgment Attachment Definitions Attachment the process of creating a lien valid against the debtor Perfection the expansion of a lien so as to make it binding on 3 rd parties as well o Sometimes attachment and perfection of a lien happen at the same time; other times, you need 2 separate legal acts o Mortgagtes must be recorded, and article 9 security interests must be perfected. However, the creation of a judicial lien is generally perfect at the moment it is created Levy The Sheriffs seizure or taking control of property pursuant to a writ Execution The enforcement of a judgment by the seizure and sale of property of the debtor CAPITAL VENTURES INTERNATIONAL v. REPUBLIC OF ARGENTINA (5) OVERVIEW: The corporation acquired a beneficial interest in a series of bonds issued by the Argentinian government. When the government defaulted on the bonds, the corporation did not accept the Exchange Offer and instead sued the government for breach of contract based on the default. The district court denied the corporation's motion for attachment. The corporation argued that it was entitled to attach certain portions of the Interest Collateral and the Principal Collateral attributable to the non-tendering bondholders, which was not released pursuant to the Exchange Offer. The appellate court found that the corporation satisfied each of the requirements of N.Y. C.P.L.R. 6201 and 6212 and demonstrated a need for attachment as required by N.Y. C.P.L.R. 6223 . That being so, the district court erred to the extent it denied relief because it considered the corporation's chances of realizing on the Principal Collateral to be remote. Given that the corporation met all the statutory requirements and that there now was no threat of confusion since the Exchange Offer was over, the corporation was entitled to attach Argentina's reversionary interest in the remaining Principal Collateral. OUTCOME: The order of the district court was vacated and the case was remanded with instructions to grant the corporation's application for an order of attachment with respect to the remaining Principal Collateral. The corporation's motion to issue the mandate forthwith and to continue the temporary restraining order previously entered was granted to the extent that the clerk was directed to issue the mandate forthwith. Teaching 6201 says that attachment may be granted in any action, but does not have to be granted if the court thinks that probability of success is low. Probable Success on the Merits- Plaintiff must show that he has a good case with a likelihood of success Albany Savings Bank v. All Advantages Limousine Service PROCEDURAL POSTURE: Defendant merchant, a bank customer, challenged a decision from the Supreme Court of Albany County (New York), which denied his motion to vacate an order of attachment against his real property and personal bank accounts that was granted in favor of...
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This note was uploaded on 02/13/2008 for the course LAW 7051 taught by Professor Carlson during the Fall '06 term at Yeshiva.
- Fall '06