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Click here for the full text of this decision FACTS:David J. Strachman, in his capacity as administrator of the Estate of Yaron Ungar; Dvir Ungar; Yishai Ungar; Judith Ungar; Meir Ungar; Michal Cohen; Amichai Ungar; and Dafna Ungar, challenges a Texas federal district court’s restraining order that indefinitely freezes specific bank accounts that allegedly had been levied pursuant to writs of execution, issued by New York, South Carolina and Washington federal district courts, in order to satisfy a judgment the appellants obtained against assets of the Holy Land Foundation For Relief and Development. The allegedly levied bank accounts are only some of the assets specified in, or otherwise covered by, the restraining order. Additionally, Strachman urges this court to grant a motion for summary disposition and vacatur. HOLDING:The court denies the motion for summary disposition, and it vacates and remands to the district court for further proceedings. The assets at issue are the funds in certain blocked HLF bank accounts located in New York, South Carolina and Washington that were specified, by state and account number, in the Texas district court’s restraining order. The Ungars assert that, before the Texas district court entered this restraining order on Sept. 24, 2004, they had levied writs of execution on these funds pursuant to judgments obtained in New York, South Carolina and Washington federal district courts. According to the Ungars, this placed these funds in the possession of those courts and thereby divested the Texas district court of jurisdiction to enter this restraining order. The Ungars did not participate in the proceedings before the Texas district court. The injunction seeks to keep the Ungars from obtaining specific assets that are the subject of federal writs of execution that the Ungars claim to have levied. The Ungars have standing to appeal this restraining order, the court concludes. The merits of the opposing positions at bar are not so clear as to warrant summary disposition, so the court denies the Ungars’ request for summary disposition. On Sept. 24, 2004, the Texas district court ordered that “persons, financial institutions, or other entities who have any interest or control over the subject property are hereby restrained, enjoined and prohibited . . . from . . . distributing” any of the HLF funds listed in Attachment A to the government’s application for the restraining order. Prior to Sept. 24, 2004, funds in some of the accounts listed in Attachment A were levied pursuant to a writ of execution issued by a federal district court in each of the following states: New York, South Carolina and Washington. The record does not indicate that 1. during the 90 days after levy upon the New York bank account, HLF property was transferred into the possession or control of the sheriff; or 2. the Ungars perfected the levy by commencing a turnover proceeding directed against the holder of the property. If either is not done within a 90-day period, the levy is void. Neither the South Carolina nor the Washington levy placed HLF funds in the custody of a court or its officer so as to remove the funds from the jurisdiction of the Texas district court. The New York levy arguably divested other courts of jurisdiction during the 90-day period following service, but that levy is void and therefore is not a proper basis for the relief requested by the Ungars. The Ungars have not demonstrated that the Texas district court was without jurisdiction to include the HLF bank accounts in South Carolina or Washington in its order restraining HLF assets. Moreover, the Ungars may not challenge entry of this restraining order on the basis of a levy they allowed to become void. The Ungars next argue that the Terrorism Risk Insurance Act of 2002 �201(a), 28 U.S.C. �1610(f)(1)(A) (2000) (TRIA), permits attachments and executions “notwithstanding any other provision of law,” and that the legislative purpose of the TRIA is such that �1610(f)(1)(A) trumps any forfeiture provisions and proceedings. Thus, they contend, �1610(f)(1)(A) overrides statutory limitations on attachment and execution, and all blocked HLF assets are subject to execution under �1610(f)(1)(A), without regard to whether they are tainted property otherwise subject to restraint or criminal forfeiture. The basis for this argument is the �1610(f)(1)(A) provision that, “notwithstanding any other provision of law, ( . . .” blocked assets (such as the restrained HLF bank accounts) “shall be subject to execution or attachment in aid of execution of any judgment relating to a claim.” The court concludes that the “notwithstanding” language relied on by the Ungars appears to target statutory immunities to execution. The criminal forfeiture statute does not immunize HLF bank accounts from writs of execution. The challenged restraining order freezes and preserves the accounts until the claims to them can be prioritized in ancillary proceedings. The TRIA does not address these circumstances. Because the issues at bar do not involve a foreign state’s or terrorist party’s FSIA immunity from execution, the court finds no basis to conclude that �1610(f)(1)(A) pre-empts, trumps or otherwise interferes with the operation of 21 U.S.C. �853 criminal forfeiture provisions. The instant �853(e)(1)(A) order restrains indefinitely the New York, South Carolina and Washington bank accounts that are the subject of this appeal; therefore it is to be treated as a preliminary injunction. The Ungars are adverse parties for Federal Rule of Civil Procedure 65 purposes, having been named in the government’s application for the restraining order and having an interest in some of the bank accounts specified in the order, which interest is 1. adverse to both parties to this criminal case, and 2. adversely affected by the restraining order. As an ex parte “preliminary injunction,” Federal Rule of Civil Procedure 65(a)(1) requires notice to adverse parties. The record reveals no compliance with Federal Rule of Civil Procedure 65(a)(1) notice provision. “Compliance with Rule 65(a)(1) is mandatory,” and a preliminary injunction granted without adequate notice and a fair opportunity to oppose it should be vacated and remanded to the district court. Harris County v. CarMax Auto Superstores Inc., 177 F.3d 306 (5th Cir. 1999). OPINION:Stewart, J.; Benavides, Stewart and Owen, JJ.

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