See supra note 13.Ketcham v. United States, 783 F.Supp. 511, 519 (D. Nev. 1991) (emphasis added).See Dkt. No. 1 at 11 n.12 (describing the 5 levies on Plaintiffs’ accounts).
The August 12, 2021 Notice of Levy “which forms the basis of this cause of action” only levies monies held by Frost Bank, which is the same as the notices of levy in case number 7:21-cv-328, which also only levied bank accounts.Nielsen v. United States, No. 7:21-cv-328, Dkt. No. 6 (S.D. Tex Sept. 1, 2021) (Alvarez, J.); see Ketcham v. United States, 783 F.Supp. 511 (D. Nev. 1991). Dkt. No. 1 at 12, ¶ 51.
Rather, under the wrongful levy statute, irreparable harm exists only when the claimant can show that it will effectively lose rights to the property in question by virtue of the levy. See Ketcham v. United States, 783 F. Supp. 511, 518 (D. Nev. 1991); Jarro v. United States, 835 F. Supp. 625, 629-630 (S.D. Fla. 1992). Because the property in question is money — fungible property Sharp can recover should it prevail on the merits — there can be no irreparable harm to Sharp's rights. See Jarro, 835 F. Supp. at 630 ("Temporary deprivation of money, in and of itself, cannot constitute irreparable harm, and certainly cannot satisfy the narrower term `irreparable injury in property' [in section 7426(b)(1)].").
In addition, Ross Controls must satisfy the irreparable harm prong by demonstrating irreparable injury to the property subject to levy, seizure or sale rather than to plaintiff's rights in other property. Id.; Ketcham v. United States, 783 F.Supp. 511, 519 (D.Nev.1991). B.
Kennedy testified he accepted the June 2003 assignment as a substitute for the security interest he already held, and the parties agreed he would keep the entire proceeds anticipated from HealthOne, $210,000. (See Ketcham v. U.S. (D.Nev. 1991) 783 F.Supp. 511, 516 [assignment does not create a security interest where it is made, not to secure payment, but as payment of the assignor’s debt].) Kennedy already had a security interest in all of American Staffing’s accounts, so it would have made little sense to surrender that for a security interest in the HealthOne account alone.