Section 1312. Provisional remedies; generally  


Latest version.
  • 1. The provisional remedies
      of attachment, injunction, receivership and notice of pendency  provided
      for herein, shall be available in all actions to recover property or for
      a money judgment under this article.
        2.  On a motion for a provisional remedy, the claiming authority shall
      state whether any other provisional remedy has previously been sought in
      the same action against the same defendant. The court  may  require  the
      claiming  authority  to  elect  between those remedies to which it would
      otherwise be entitled.
        3. A court may grant an application for a provisional remedy  when  it
      determines  that:  (a)  there  is  a  substantial  probability  that the
      claiming authority will prevail on the  issue  of  forfeiture  and  that
      failure  to  enter the order may result in the property being destroyed,
      removed from the jurisdiction of the court, or otherwise be  unavailable
      for  forfeiture;  (b)  the  need  to  preserve  the  availability of the
      property through the entry of the requested order outweighs the hardship
      on any party against whom the order may operate; and (c)  in  an  action
      relating  to  real  property, that entry of the requested order will not
      substantially  diminish,  impair,  or  terminate  the  lawful   property
      interest  in  such real property of any person or persons other than the
      defendant or defendants.
        4. Upon motion of any party against whom a provisional remedy  granted
      pursuant  to  this  article  is  in effect, the court may issue an order
      modifying or vacating such provisional remedy if necessary to permit the
      moving party to obtain  funds  for  the  payment  of  reasonable  living
      expenses, other costs or expenses related to the maintenance, operation,
      or preservation of property which is the subject of any such provisional
      remedy  or reasonable and bona fide attorneys' fees and expenses for the
      representation of the defendant in the forfeiture  proceeding  or  in  a
      related  criminal  matter  relating  thereto,  payment  for which is not
      otherwise available from assets of the defendant which are  not  subject
      to  such  provisional  remedy.  Any such motion shall be supported by an
      affidavit establishing the unavailability of other assets of the  moving
      party  which  are not the subject of such provisional remedy for payment
      of such expenses or fees.