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Debtor and Creditor ClassNotes

Debtor and Creditor ClassNotes - PREJUDGMENT ATTACHMENT...

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P REJUDGMENT A TTACHMENT - Grounds to get an order for attachment. Example: Client thinking of moving to Florida. Is this a ground for prejudgment? - maybe. - Something very peculiar about FL law. Your house is exempt from judgment (Homestead exemption). - In NY, it’s $75,000 Max. but in FL, there is not limit as long as your house is 1/3 acre or less in non-rural area and 20 acres in rural area. - Popular thing to move to FL for rich people who are going bust. - Sufficient ground for an order for attachment. - In TX, you get all your land homesteaded + personal jewelry. Albany Savings Bank v. All Advantages Limosine services - D has a house with mortgage on it. - In the order of attachment, was with regard to real estate. - D has granted mortgage, and he suffered a judicial lien against the house. - Prior to this appeal, there was a mortgage foreclosure sale. At the auction, X shows up and buys. What is X buying here? Whatever the owner had at the time of sale, free and clear of the lien. - If plaintiff gets the judicial lien, and judgment occurs, and X shows up to buy at the foreclosure sale, what is X buying now? The house subject to the mortgage. The debtor owned the house – the mortgage. X gets less than fee simple absolute. - Plaintiff is trying to get rid of the attachment, and the lower court said no. X has bought the house in between the time of the lower court’s judgment and appeal. Defendant now has nothing. Defendant argues that the appeal is moot and should be dismissed. The court disagrees because under 6202(e), plaintiff is liable for wrongfully getting judicial lien. - Moving to Florida was fraudulent. Definition of Lien - Sale of whatever the debtor had at the time the lien was created. Leber-Krebs, Inc. v. Capitol Records - P has law suit against Mr. Clinton. He gets an order of attachment (garnishes) on Capitol Records. Capitol owes Clinton money. - Capitol says they don’t owe any money. - P later finds out that Capitol has been paying George Clinton. So P now sues Capitol in personam. - Is there a cause of action? Yes. Under 6219, Capitol had a duty to tell the truth to the court. The breach of the duty arises to in personam cause of action. - P has garnished Capitol: the court puts this on “suspense calendar” (deep freeze) - Why did the court do that? The court with jurisdiction over Capitol did not want to try this case until P won the case over Clinton. - About 6 months later, P wins the lawsuit against Clinton. Clinton then files for bankruptcy. - There is no impediment to this lawsuit. P is not trying to get Clinton’s property, but to recover for a wrong Capitol had done. We don’t know P’s damages until we know how much P can recover from Clinton. As a result, the plaintiff v. Capitol stays on the suspense calendar until the bankruptcy case has ended.
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