When an individual possesses your personal property, or property in which you have a security interest, such as a motor vehicle, piece of equipment, or other collateral, and refuses to return it, what options do you have to recover your asset?
You can kindly ask for it back. You can also hire an attorney to demand it back or try “self-help repossession” if your state allows it. Unfortunately, these actions don’t always work. If you cannot repossess it peacefully, a legal remedy called a replevin may be your best recourse.
While replevins aren’t a novel concept, they come with a variety of benefits and challenges that are important to be aware of should you go this route. In a recent installment of our Ask a Pro webinar series, “Recovering with Replevins
,” shareholders Al Reis
and Amy Holbrook
break down the various nuances of this procedure and share how, in many circumstances, it can be a highly valuable tool for creditors.
We’ve also recapped our top five takeaways from this enlightening, virtual Q&A.
1. Replevin, defined
A replevin is a lawsuit that allows a creditor (the plaintiff) to obtain possession of personal property that has been wrongfully taken or detained by a borrower (the defendant). Unlike other lawsuits, a replevin seeks the return of the actual article of property rather than money, or in addition to money. Typically, these cases may ask for possession on an expedited basis, either at the beginning of the lawsuit or once a final judgement is granted.
The majority of replevin cases involve defaulted obligations under loan documents. They can be initiated on almost any kind of personal property, from cars, motorcycles, and boats to commercial equipment and rental articles.
Remember, a replevin is only a remedy for recovering personal property. A replevin is not used to recover real property.
2. It’s all in the details
In order to regain possession of the property, you and your attorney(s) will need to first prepare an affidavit that includes specific information regarding the property. The affidavit will include a complete and accurate description of the property sought, answering key questions such as:
- What’s the nature of the property? What is it used for?
- A description of the property?
- What’s the value of the property?
- Why are you entitled to have the property back?
- When was the last time you saw it?
- Where is the property located?
The last point, location
, is of paramount importance. If the court finds that you, the plaintiff, have a right to immediate possession of the property, then the court will order the sheriff to manually seize the property and deliver it back to you. If you don’t know where the property is located, the process may get more complicated; and the defendant can be compelled to disclose the location of the property.
3. You’ll need to post bond
Before the sheriff seizes the property from the defendant, the court will order you to post a surety bond. The bond is a form of insurance, guaranteeing that you as the plaintiff will take responsibility for all legal costs, fees, and damages sustained by the issuance of the replevin, if it is found that you did not have a right to possess the property.
The cost of the bond varies from state to state, and the value of the bond is usually double the value of the property being recovered.
To get the bond, you’ll work with a surety company and complete an application that requires you to answer a lot of questions, especially if you’re a private company. If needed, your attorney can help you navigate this process.
4. The importance of “You’ve been served”
The justice system requires that the defendant be served with notice that you are seeking to reacquire your property. Until you get service on your borrower, you cannot proceed with the case unless the situation requires “emergency” replevin. (An “emergency” replevin is deployed when you believe the borrower will abscond with the property or try to permanently prevent the reacquisition of the property.)
While service may vary state to state, the summons is usually served personally, or by certified mail. The COVID-19 pandemic has caused many issues in this area because some mail carriers are hesitant to have personal contact with people. This has hampered many replevin cases to a great extent.
5. Personal property is mobile. So are replevins.
A replevin action is typically filed where the defendant lives, where your contract was entered into, or where the property is located. However, it’s important to remember that personal property is very mobile, meaning your collateral could end up in the possession of a third party such as a family member, repair shop, law enforcement, or another agency.
If this is the case, you may need to utilize a replevin action to gain possession from that third party. If law enforcement has the property because it’s part of a criminal case, you’ll likely need to go to court and make your lien interests known to the prosecutor so he or she releases it back to you. This is why detailed documentation is essential in replevin cases. You’ll also need to let the court know that you weren’t aware of the borrower/defendant’s criminal activity and you won’t re-release the property back to them.
In addition to your property moving from one party to another, it could also move from one county or state to another. The good news is that your court order for possession can be transferred across county or state lines. For example, if you’re in Ohio and filed in Cuyahoga County but later found out that your property moved to Warren County, the sheriff can transfer the order to Warren County.
For more comprehensive information and insights about replevins, watch our latest Ask a Pro: Recovering with Replevins webinar here. Our in-house attorneys address creditors’ top questions regarding this legal remedy.
This blog is not a solicitation for business and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.