28 U.S.C. § 3101 : US Code - Section 3101: Prejudgment remedies

Search 28 U.S.C. § 3101 : US Code - Section 3101: Prejudgment remedies

(a) Application. - (1) The United States may, in a proceeding in
conjunction with the complaint or at any time after the filing of a
civil action on a claim for a debt, make application under oath to
a court to issue any prejudgment remedy.
(2) Such application shall be filed with the court and shall set
forth the factual and legal basis for each prejudgment remedy
sought.
(3) Such application shall -
(A) state that the debtor against whom the prejudgment remedy
is sought shall be afforded an opportunity for a hearing; and
(B) set forth with particularity that all statutory
requirements under this chapter for the issuance of the
prejudgment remedy sought have been satisfied.
(b) Grounds. - Subject to section 3102, 3103, 3104, or 3105, a
prejudgment remedy may be granted by any court if the United States
shows reasonable cause to believe that -
(1) the debtor -
(A) is about to leave the jurisdiction of the United States
with the effect of hindering, delaying, or defrauding the
United States in its effort to recover a debt;
(B) has or is about to assign, dispose, remove, conceal, ill
treat, waste, or destroy property with the effect of hindering,
delaying, or defrauding the United States;
(C) has or is about to convert the debtor's property into
money, securities, or evidence of debt in a manner prejudicial
to the United States with the effect of hindering, delaying, or
defrauding the United States; or
(D) has evaded service of process by concealing himself or
has temporarily withdrawn from the jurisdiction of the United
States with the effect of hindering, delaying, or defrauding
the United States; or
(2) a prejudgment remedy is required to obtain jurisdiction
within the United States and the prejudgment remedy sought will
result in obtaining such jurisdiction.
(c) Affidavit. - (1) The application under subsection (a) shall
include an affidavit establishing with particularity to the court's
satisfaction facts supporting the probable validity of the claim
for a debt and the right of the United States to recover what is
demanded in the application.
(2) The affidavit shall state -
(A) specifically the amount of the debt claimed by the United
States and any interest or costs attributable to such debt;
(B) one or more of the grounds specified in subsection (b); and
(C) the requirements of section 3102(b), 3103(a), 3104(a), or
3105(b), as the case may be.
(3) No bond is required of the United States.
(d) Notice and Hearing. - (1) On filing an application by the
United States as provided in this section, the counsel for the
United States shall prepare, and the clerk shall issue, a notice
for service on the debtor against whom the prejudgment remedy is
sought and on any other person whom the United States reasonably
believes, after exercising due diligence, has possession, custody,
or control of property affected by such remedy. Three copies of the
notice shall be served on each such person. The form and content of
such notice shall be approved jointly by a majority of the chief
judges of the Federal districts in the State in which the court is
located and shall be in substantially the following form:
"NOTICE
"You are hereby notified that this [property] is being taken by
the United States Government ('the Government'), which says that
[name of debtor] owes it a debt of $ [amount] for [reason for debt]
and has filed a lawsuit to collect this debt. The Government says
it must take this property at this time because [recite the
pertinent ground or grounds from section 3101(b)]. The Government
wants to make sure [name of debtor] will pay if the court
determines that this money is owed.
"In addition, you are hereby notified that there are exemptions
under the law which may protect some of this property from being
taken by the Government if [name of debtor] can show that the
exemptions apply. Below is a summary of the major exemptions which
apply in most situations in the State of [State where property is
located]:
"[A statement summarizing in plain and understandable English
the election available with respect to such State under section
3014 and the types of property that may be exempted under each of
the alternatives specified in paragraphs (1) and (2) of section
3014(a), and a statement that different property may be so
exempted with respect to the State in which the debtor resides.]
"If you are [name of debtor] and you disagree with the reason the
Government gives for taking your property now, or if you think you
do not owe the money to the Government that it says you do, or if
you think the property the Government is taking qualifies under one
of the above exemptions, you have a right to ask the court to
return your property to you.
"If you want a hearing, you must promptly notify the court. You
must make your request in writing, and either mail it or deliver it
in person to the clerk of the court at [address]. If you wish, you
may use this notice to request the hearing by checking the box
below and mailing this notice to the court clerk. You must also
send a copy of your request to the Government at [address], so the
Government will know you want a hearing. The hearing will take
place within 5 days after the clerk receives your request, if you
ask for it to take place that quickly, or as soon after that as
possible.
"At the hearing you may explain to the judge why you think you do
not owe the money to the Government, why you disagree with the
reason the Government says it must take your property at this time,
or why you believe the property the Government has taken is exempt
or belongs to someone else. You may make any or all of these
explanations as you see fit.
"If you think you live outside the Federal judicial district in
which the court is located, you may request, not later than 20 days
after you receive this notice, that this proceeding to take your
property be transferred by the court to the Federal judicial
district in which you reside. You must make your request in
writing, and either mail it or deliver it in person to the clerk of
the court at [address]. You must also send a copy of your request
to the Government at [address], so the Government will know you
want the proceeding to be transferred.
"Be sure to keep a copy of this notice for your own records. If
you have any questions about your rights or about this procedure,
you should contact a lawyer, an office of public legal assistance,
or the clerk of the court. The clerk is not permitted to give legal
advice, but can refer you to other sources of information."
(2) By requesting, at any time before judgment on the claim for a
debt, the court to hold a hearing, the debtor may move to quash the
order granting such remedy. The court shall hold a hearing on such
motion as soon as practicable, or, if requested by the debtor,
within 5 days after receiving the request for a hearing or as soon
thereafter as possible. The issues at such hearing shall be limited
to -
(A) the probable validity of the claim for the debt for which
such remedy was granted and of any defense or claim of exemption
asserted by such person;
(B) compliance with any statutory requirement for the issuance
of the prejudgment remedy granted;
(C) the existence of any ground set forth in subsection (b);
and
(D) the inadequacy of alternative remedies (if any) to protect
the interests of the United States.
(e) Issuance of Writ. - On the court's determination that the
requirements of subsections (a), (b), and (c) have been met, the
court shall issue all process sufficient to put into effect the
prejudgment remedy sought.