§3101 Prejudgment Remedies

Summary

The United States can ask a court, when it files a lawsuit about a debt or any time after, for a prejudgment remedy — a court order to hold or seize a debtor’s property before a final judgment. The request must be made under oath, filed with the court, explain the facts and law for each remedy asked for, say the debtor will get a chance for a hearing, and state that all legal requirements in this chapter are met. The government must show reasonable cause to think the debtor is about to leave the United States, hide, waste, move, sell, destroy, or convert property, or avoid being served, in a way that would hurt the government’s ability to collect. A prejudgment remedy may also be allowed if it is needed to get jurisdiction. The application must include an affidavit saying the amount owed (including interest and costs), which ground or grounds apply, and the specific statutory requirements from sections 3102(b), 3103(a), 3104(a), or 3105(b). The United States does not have to post a bond. When the United States files the application, the court clerk must issue a written notice and serve three copies on the debtor and anyone else believed to have the property. The notice must explain the reasons and list common exemptions, and it must tell the debtor how to ask for a hearing in writing. If the debtor asks for a hearing, the court will hold it as soon as possible, and within 5 days if the debtor asks for that speed. A debtor living outside the district may ask, within 20 days of getting the notice, to transfer the case to the district where they live. At the hearing the court will consider whether the debt claim is probably valid, any defenses or exemptions, whether the law’s requirements were met, whether the stated grounds exist, and whether other remedies would be enough. If the court finds the requirements are satisfied, it will issue whatever process is needed to put the prejudgment remedy into effect.