The Replevin Remedy

replevin

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Replevin: What a weird Latin word. Often (in America), it is called “Claim and Delivery.” Whatever. Essentially, it is a lawsuit for breach of contract, combined with pre-judgment remedies seeking recovery of your collateral.

A lawsuit for breach of contract is filed (based upon your written contract), and included therein is a cause of action for “Possession.” Possession of what, though? Well, possession of all the collateral listed in your contract. It does not matter what it is: cars, construction equipment, tractors, MRI machines, weed eaters, a lava lamp… anything.

Shortly after the lawsuit is filed, we then file an Application for a Pre-Judgment Writ of Possession. That is a motion brought to the Court, seeking to have the Judge Order your customer to return the collateral.  We also have the Clerk of the Court issue a Writ. The Writ is a directive that the Sheriff recovers the collateral and then delivers it to you.

The advantages of replevin are many. 

Initially, your customer is served with the lawsuit and writ application.  Sometimes that inspires them to treat their default more seriously. They often will either arrange payments to cure their default or return the collateral voluntarily. 

If not, the Court Order is a directive from the Judge ordering the customer to return the collateral. If they fail to comply, the Court can issue sanctions against them (money, defaults, and, on rare occasions, arrest). 

The writ itself clothes the sheriff with many recovery advantages you do not have. First, they show up to your customer’s residence and place of business in uniform, seeking the collateral, which is intimidating. Although you cannot “breach the peace” in recovery efforts, the sheriff can. The sheriff can arrive late at night, early in the morning, or whenever they think the customer and collateral will most likely be ‘home.’ The writ is also a ‘break order,’ so the sheriff can use force and break locks and doors to locate and secure your collateral. The sheriff will also serve the actual writ to your customer, which is intimidating and may informally ‘encourage’ the customer to comply with your goals.

The replevin remedy is quick. The hearing on the writ will typically take place within 50 days of filing the lawsuit. The writ should be to the sheriff within 10 days after the hearing. The writ itself is good for 60 days, and the sheriff generally makes more than one attempt at recovery. Therefore, judgment should come within 90 days. It all sews up rather nicely.

The key to any replevin is knowing where to find your customer or your collateral (preferably both). If the collateral has been ‘lost in the wind,’ the claim and delivery lawsuit filed already seeks 100% recovery of the balance owed on your contract, plus interest, fees, and costs. You will proceed to judgment for that (then seek collection remedies, which you can read about here).

You deserve to have your stuff back, and all your money. Let us help you get it! Click the button below to start the conversation.

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