12-2402

12-2402. Provisional remedies without notice;
grounds for issuance

A. Any provisional remedy may be issued by any judge of the superior court or
justice of the peace of this state before judgment and without prior notice to the party
against whom it will operate in any of the following cases:

1. When the party against whom the provisional remedy is sought is about to remove
permanently from the state and has refused to secure the debt, or when such party has
secreted property for the purpose of defrauding creditors, or that such party has
disposed of property, wholly or in part, with intent to defraud creditors, or that such
party is about to dispose of property with intent to defraud creditors.

2. When the moving party is the owner or lessor or otherwise is lawfully entitled
to the possession of the property claimed, has satisfied the requirements of sections
12-1301 and 12-1303, and is seeking a provisional remedy in the nature of replevin,
except that a provisional remedy under this section may not be obtained to enforce a
security interest in consumer goods which is not a purchase money security interest.

3. When any provisional remedy is required to obtain jurisdiction.

B. Before any provisional remedy shall issue, the party seeking such remedy shall
establish with particularity by affidavit to the court's satisfaction sufficient facts
supporting the party's claim and establish that one of the requirements of subsection A
of this section has been met and that such party will file such other pleadings or
affidavits as are required by law as a prerequisite to the issuance of any provisional
remedy sought.

C. When a provisional remedy is issued, the party against whom it will operate may
immediately move to quash such order and the court or justice of the peace shall hear
such motion within five days, exclusive of weekends and holidays. The issues at such
hearing shall be limited to the following:

1. The probable validity of the claim or claims of the party seeking the
provisional remedy and any defenses and claims of personal property exemptions of the
party against whom such provisional remedy will operate.

2. The existence of any statutory requirement for the issuance of any provisional
remedy sought, plus the existence of any grounds in subsection A of this section.

D. The party seeking the provisional remedy shall at the time of the seizure,
attachment or garnishment, or within three days thereafter, exercise reasonable diligence
to serve the party against whom a provisional remedy is sought with notice of the
seizure, the impound or such other act ordered by the court and of said party's right to
an immediate hearing contesting the same.

E. Upon the filing of an application as provided in this section, the justice of
the peace or any clerk of the superior court shall issue a notice directed to any party
against whom any provisional remedy would operate, substantially in the following form:

"Notice

You are hereby notified that your (property) is being taken away from you by
(party seeking provisional remedy) , who says that you owe (such party) a debt of
$ (amount) . (Party seeking provisional remedy) is taking your property because
(such party) says:

(a) That you were about to remove permanently from the state and refused to secure
the debt, or

(b) That you had secreted property for the purpose of defrauding creditors, or

(c) That you had disposed of property, wholly or in part, with intent to defraud
creditors, or were about to dispose of property with intent to defraud creditors, or

(d) That (party seeking provisional remedy) claims the right of possession to your
property under a purchase money security interest.

If you disagree and think you do not owe (party seeking provisional remedy), or that
you have not done any of the things which (party seeking provisional remedy) said you did
or were about to do, then you can ask a court to hear your side of the story and give
your property back to you. If you want such a hearing, it will be given to you within
five working days after you ask for it. Just check the box at the bottom of this notice
and mail it or take it to the court or division of the court, at the following address:
(address of court or division of the court) . You must also send a copy to (party
seeking provisional remedy) at (address) , so that (party seeking provisional
remedy) knows you want the hearing."