Replevin

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The term “replevin” is used to describe the act of recovering someone’s personal property that was either taken wrongfully or held improperly. Replevin is also referred to as “claim and delivery.” In most cases, when a person is wronged insofar as suffering the loss of property, he will seek money damages as compensation. In the case of replevin, however, the lawsuit is filed for the less common relief of the return of the actual property itself. To explore this concept, consider the following replevin definition.

Definition of Replevin

Noun

  1. The act of recovering property that was improperly held.

Origin

1300-1350       Middle English

What is Replevin

The process of replevin is one used by the courts as a way to take property away from someone who is in wrongful possession of it, and give it back to its rightful owner. In a replevin action, the rightful owner is ultimately determined by the court. In most cases, if a person loses his property, he can and will sue for money damages as compensation. However, replevin differs in that the person sues to reclaim ownership of the actual property in question.

Replevin vs. Repossession

Replevin differs from repossession in that repossession does not require a lawsuit. Creditors can simply take back possession of the property, such as a car, without having to sue the person first. This is because the person broke his contract by failing to pay for the car as was initially agreed. In the case of the repossession of an automobile, most states allow creditors to go right onto a person’s property and take his car without giving advanced notice.

With replevin, the person is entitled to due process before his car can be repossessed. This means that he is entitled to advanced, written notice of the creditor’s intention to seek an order of replevin. It also means that he is entitled to a hearing on the matter, and at the hearing he has the right to dispute or respond to the creditor’s complaint.

Typically, the time period between responding to the complaint and requesting a hearing is rather short. For example, replevin laws in Ohio require that a written response and request for a hearing are filed within five days of the person receiving the notice.

History of Replevin

The history of replevin dates back to the thirteenth century. Initially, replevin was used as a temporary remedy to give a plaintiff his property back until his ownership rights could be determined by a court of law. The history of replevin began with an inspiration to keep the peace between the parties while the court settled their dispute.

Replevin was also created in direct succession to distress. Distress was the act of taking property from a person until an action could be performed. For instance, if an individual’s livestock strayed away from their own property and did damage to their neighbor’s property, distress allowed for the animals to be withheld from their owner until their owner could compensate for the damages. In this case, the owner could not pursue replevin because the livestock had been taken lawfully in connection with distress, or “distraint.”

Originally, replevin may have been used only for the recovery of goods that had been illegally held past the time period that the defendant was permitted to own them. However, replevin was soon extended to cover every situation involving the wrongful taking or withholding of another’s property. As time went on, if the goods themselves could not be recovered, then the courts would award money judgments as compensation.

Replevin, Trespass, and Trover

Replevin differed from the actions of “trespass” and “trover.” With trover, a plaintiff had to prove that the defendant had taken over possession of the property to such an extent that he had converted the property for his own personal use. In a trespass action, the matter being disputed was that the defendant was claiming to own property that he did not, in fact, possess.

Types of Replevin

There are several types of replevin that an action can fall under. For instance, types of replevin actions that can be brought before a court are those that involve a piece of property that two individuals claim ownership to, or ones in which the property was lawfully held in the beginning but was not turned over to its rightful owner when it should have been.

Consider the following examples of replevin that illustrate the types of replevin that can be brought before a court of law:

  • A family member may look to take back property that is being held by the administrator of the estate of the deceased.
  • A business may lobby for property to be returned that had been stolen and that is essential for the business to run properly, such as a cash register to a retail store.
  • A renter may sue a landlord in order to repossess property that the landlord had withheld in exchange for rent payments that are in arrears.
  • A creditor may look to repossess the property of a debtor who fell behind on his loan payments, such as when a borrower fails to pay his car payments on time and his car is ultimately repossessed.

Replevin Laws

Replevin laws apply to actions that start with a party providing papers to the court that show that he has an interest in the property in dispute. The sheriff then seizes the property and turns it over to the complaining party until a hearing can be held to determine whether he is, in fact, the true owner of the property.

Replevin laws in most states allow individuals to recover their property before the court can render a judgment by requiring them to file a cash deposit or bond with the court. This is done to ensure that, in the event the individual loses his lawsuit, he has agreed to return the property to the individual whom the court declares is its true owner.

In some states, replevin laws dictate that if the property in question is unlawfully destroyed or disposed of, then the guilty party is to be charged with contempt of court and ordered to pay money damages and related costs to the other party.

Replevin laws are usually left up to the state in which the action is brought. For instance, one such law is that a replevin action must be brought in a court that has jurisdiction over the case. This is determined by the value of the property in question. Other such laws refer to:

  • The county wherein the subject property is located
  • The location wherein the contract of ownership was signed
  • The location of the defendant’s residence
  • The location where the dispute in question occurred

In order to recover his property under a replevin action, the complaining party must provide the following to the court clerk:

  • A detailed description of the property that can lead to its positive identification
  • A statement or professed belief indicating the value and location of the property
  • A statement that the complaining party is the rightful owner of the property, that the property is being improperly held, and that the property has not been seized due to overdue taxes or another similarly lawful reason

Writ of Replevin

A writ of replevin is a court order that demands that a property in question be seized by the U.S. Marshal, or another designated official under the court’s supervision, until the court can make a decision. A writ of replevin is therefore issued prejudgment, meaning before the court can come to a final decision on the matter. A writ of replevin is typically used as a means to take property away from someone who is in wrongful possession of it and turn the property over to its true owner.

Replevin Bond

A replevin bond allows an individual to take back possession of his property in a replevin action before a trial can begin. A replevin bond is a kind of insurance in that it ensures the plaintiff will return the property back to the defendant if the court ultimately decides that the property should not properly been returned to the plaintiff. A replevin bond also serves as a guarantee that the plaintiff will accept responsibility for all of the fees and related costs associated with accepting the return of the property.

Replevin Example Involving Purchasing Contracts

An example of replevin can be found in a case involving property that was seized by a company without providing the buyer with adequate notice. In 1970, Margarita Fuentes purchased a gas stove and service contract from Firestone Tire and Rubber Co. in Florida. The sales contract required that she pay monthly payments over a set amount of time.

A few months later, Fuentes purchased a stereo from the same company, and with a similar service contract. Under these contracts, Firestone kept the title to the merchandise, which meant that they remained the owners until the items were paid for in full. During this time, Fuentes was permitted to have possession of the merchandise unless she stopped paying as agreed.

Fuentes paid as agreed for over a year, but when only $200 remained, she and Firestone entered into a dispute over how the stove was serviced. Firestone sued Fuentes in small-claims court for repossession of both the stove and the stereo, claiming that she had failed to pay her remaining payments as agreed. Firestone simultaneously filed for a writ of replevin that ordered a sheriff to take the merchandise back at once – before Fuentes had even received notice of the company’s intent to sue. Later that same day, the local sheriff, along with a Firestone representative, did exactly that.

Shortly thereafter, Fuentes filed a lawsuit in the federal district court to challenge whether Florida’s replevin procedures were constitutional. The district court upheld the constitutionality of the statutes. Fuentes appealed the case all the way up to the U.S. Supreme Court. The Court combined Fuentes’ case with a similar case out of Pennsylvania, with the appellants in the latter case challenging the replevin provisions of their state as well. The Court ultimately reversed the district courts’ decisions in both cases, and remanded the cases back to their respective lower courts for further proceedings. Said the Court in its joint decision:

“We hold that the Florida and Pennsylvania prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor. Our holding, however, is a narrow one. We do not question the power of a State to seize goods before a final judgment in order to protect the security interests of creditors so long as those creditors have tested their claim to the goods through the process of a fair prior hearing. The nature and form of such prior hearings, moreover, are legitimately open to many potential variations and are a…subject, at this point, for legislation – not adjudication.”

Related Legal Terms and Issues

  • Arrears – Monies that are owed to another individual.
  • Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.