Replevin is the Question And the AnswerJune 27, 2012 | Douglas M. Dahmer, Esq.
To Take Back Or Not To Take Back: Replevin is the Question And the Answer
Sometimes the old tried and true remedies are often the best. So it is with the legal right of Replevin. A statutory animal in Ohio, Replevin is generally defined in Black’s Law Dictionary, 9th edition as “[A]n action for the repossession of personal property wrongfully taken or detained by the defendant, whereby plaintiff gives security for and holds the property until the court decides who owns it.” In Ohio the Replevin statute is found at O.R.C. § 2737.01 et.seq.
Replevins can be initiated on almost any kind of personal property- from vehicles to watercraft to rental articles to commercial equipment- either pursuant to a default on a promissory note or a lease from the secured creditor. The legal remedy of Replevin is best used when the secured creditor cannot repossess the collateral without breaching the peace. The Replevin action, filed like a regular lawsuit, frequently contains a count or prayer for both money judgment and permanent possession of the secured collateral. The complaint initiating the lawsuit is accompanied by a motion for possession where the plaintiff is seeking an order of possession from the court to obtain possession of the secured collateral during the pendency of the lawsuit. An affidavit from the secured creditor (and plaintiff) meeting the statutory requirements is required to accompany the plaintiff’s motion for possession.
At the time of filing the complaint, the plaintiff is also required by statute to provide the defendant with a notice of a hearing and a request for hearing, which can be completed and mailed to the court. The court clerks insert the hearing date on the notice and then these papers all are served upon the defendant. The Replevin hearing is scheduled within 20 days of filing the motion for possession, according to statute. If the defendant does not request a hearing and does not appear at court on the hearing date, the plaintiff submits the order of possession and a bond for two times the value of the secured collateral (required by statute), as stated in the affidavit accompanying the motion for possession. Thereafter, the order of possession is sent to the county sheriff for serving upon the defendant and arranging to pick up the secured collateral. Once the defendant is served with the order of possession, a failure to surrender the secured collateral in the face of the court’s order can result in contempt of court (or even jail time at the court’s discretion).
For large items like manufactured homes or large farm equipment, the sheriff marks the item(s) as being in the possession of the county sheriff and either gives the occupants a deadline to vacate and/or makes arrangements with the plaintiff to come and pick up the item(s).
Contrarily, in the event the defendant requests a Replevin hearing, plaintiff’s counsel must attend and a witness from the secured creditor may or may not be necessary. At the hearing, the burden is on the plaintiff to prove probable cause to support the motion for possession (i.e. that “it is likely that the movant [plaintiff] will obtain judgment against the respondent [defendant] that entitles the movant to permanent possession of the specific personal property that is the subject of a motion filed … “ O.R.C. § 2737.01 and .07). In other words, the plaintiff will ultimately prevail in the lawsuit. The practical issue at the core of the plaintiff’s burden is simply that the defendant is in default under the promissory note or lease and can not demonstrate any differently at the hearing. In addition to the previously filed affidavit accompanying the motion for possession stating that the defendant is in default, payment history records will usually seal the fate of the defendant so that the plaintiff will prevail.
Secured creditors who become aware that their secured collateral is no longer in possession of the original signatory of the note or original lessee can also utilize a Replevin action to obtain the secured goods from that third party. The Replevin lawsuit usually names the defaulted original party and all other parties which, upon information and belief, the secured creditor believes may have possession of the collateral. Moreover, Replevins can also be initiated after a bankruptcy discharge where the debtor failed to surrender the secured collateral during the bankruptcy and refuses to do so afterwards. Obviously, this type of Replevin lawsuit would be for permanent possession only.
Finally, the Replevin statute provides for “emergency” Replevins, when the secured creditor has good cause to believe that the debtor will abscond with the collateral or try to otherwise permanently prevent the reacquisition of the collateral. The documents filed with the court are somewhat different because the creditor is asking the court to issue the order of possession first, without the defendant having a hearing until after the order is issued, and in the best case, the secured collateral already reacquired by then. If the defendant requests a hearing, the plaintiff has the same burden at the Replevin hearing as in a non-emergency hearing.
Replevins can also be used to resolve an outstanding account by ending the lawsuit with an Agreed Judgment Entry, which forces the defendant to bring the account current and gives the secured creditor a court order allowing the execution or pick up of the secured collateral in the event of future default.
Replevins should be remembered as one of the sharper tools in the remedies toolbox for the secured creditors to use in order to obtain both money judgment and the return of the secured collateral from a defaulting debtor.
- CFPB Increases Scrutiny With Respect to Mortgage Loan Advertising Practices
- Pleading Requirements for Illinois Mortgage Foreclosure Complaints Altered
- It's the Politicians, Stupid
- Using Unjust Enrichment in Healthcare Recovery
- Guardianship Over the Person and their Financial Affairs