Replevin
Encyclopedia
In creditors' rights law, replevin, sometimes known as "claim and delivery," is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the plaintiff at the outset of the action (i.e. before judgment). In other situations, a party seeking relief may elect to adjudicate the right to possession prior to obtaining immediate relief to obtain the property in question. In such cases, replevin actions are still designed to afford the petitioning party a relatively speedy process for obtaining judgment, as compared to typical lawsuits. The summary remedy afforded by replevin statutes can be thwarted by defendants who contest the claimant's right to possession, by contesting the plaintiff's complaint, and insisting on traditional litigation involving discovery, and in some cases, trial by jury.
Replevin actions are often filed by secured creditors seeking to take possession of collateral securing loans or other debt instruments, such as retail installment contracts. A common example is where an automobile finance company initiates a replevin action to gain possession of a vehicle, following payment default. Replevin actions are usually employed when the lender cannot find the collateral, or cannot peacefully obtain it through self-help
repossession. Replevin actions may also be pursued by true owners of property, e.g., consignors seeking return of consigned property that the party in possession will not relinquish for one reason or another.
This replevin process falls into two stages:
Replevin is used when the party having the right of property cannot simply invoke self-help and take the property back. Where the party has the ability to do this directly, it is referred to as repossession
. For example, in the U.S. States of Wisconsin
and Louisiana
, if one finances an automobile, becomes a registered owner
of that vehicle, and fails to make payments as agreed, the lienholder cannot simply repossess the vehicle. The lienholder must go to court and obtain an order of replevin.
In many cases, parties initiating a replevin action will elect not to gain immediate possession of the collateral or other wrongfully-held property, and will instead file the replevin action without posting a bond. Once service of process
is achieved on the defendant, he or she will likely be required to attend a court hearing on a specific date, at which time the parties' rights to possession will be adjudicated. A plaintiff creditor can typically prevail in the case by offering testimony and business records showing the borrower/defendant's obligation to pay, and default in payment. The Court will thereafter issue a judgment and authorize issuance of a Writ of Replevin, which is served by a sheriff's deputy, working in conjunction with persons hired or employed by the creditor to take the collateral or other property into its possession. The sheriff's role is to keep the peace and allow the creditor to get its property, without threat from the borrower. Once the creditor takes the property into its possession, it can sell the collateral, and apply the proceeds to the debt owed by the borrower.
In other cases, replevy is used to prevent damages that may occur from the continued use of an item, such as a public utility meter. In the case of non-payment of a public utility, a meter is typically left on the premise to allow reconnection should the balance due be paid, or if the person owing the bill sells the premise to another person who does not owe arrears to the utility, however, it is possible for one to reconnect the device and continue obtaining the commodity in question. In such cases, the utility could seek replevin for the utility meter itself, thereby preventing this practice.
the Civil Code of Quebec
(arts. 2005 et seq.) and St Lucia (arts. 1888 et seq.)
(which was reproduced in substance from French law, which is also in force in Mauritius
).
There are analogous provisions in the Spanish
Civil Code (art. 1922).
See, e.g., New South Wales
(the consolidating Landlord and Tenant Act 1899); Newfoundland (Act 4 of 1899); Ontario
(Act I of 1902, § 22, giving a tenant five days for tender of rent and expenses after distress); Jamaica
(Law 17 of 1900, certification of landlords bailiffs); Queensland
(Act 15 of 1904).
Replevin is an action of civil law
not criminal law
; therefore, because of the differing burden of proof, a defendant found not guilty of criminal theft may be nevertheless required to return the disputed item or items in civil court.
Replevin does not provide compensation for any monetary loss arising from the loss of use of some income-producing property item. Note also that replevin involves return of an actual specific item or items, not monetary compensation for loss. Thus, it would not normally be used in a case regarding a sum of money, as distinct from the loss of a rare coin, for instance, where the return of the actual coin itself was at issue. In occasional cases of no particular numismatic interest, however, e.g., a bag of money whose contents have not yet been counted, an action may be filed to recover the actual coins and/or bills in question if they are still together.
It is evident that the question of replevin becomes moot
should the item in question no longer exist as an entity, i.e. if it is destroyed, or in the case of a bag of money, for instance, if the money has been spent. For this reason, the item is normally seized by the court when the action is filed and held until the decision is reached to prevent the waste of a legal action over a nonexistent object and, further, to ensure that the item in question is not destroyed, spent, etc., during the action. This can be used to force a settlement
from the defendant
, just or unjust, as he or she is deprived of the use of the disputed object for the duration of the action; if this results in a financial loss, the defendant may find it advantageous to merely pay a relatively small settlement and have the item returned quickly.
Common law rules governing replevin will be abolished in England and Wales
when the Tribunals, Courts and Enforcement Act 2007
, §65 comes into force.
. It is the noun form of the verb "replevy" (from Old French "replevir," derived from "plevir," to pledge).
Replevin actions are often filed by secured creditors seeking to take possession of collateral securing loans or other debt instruments, such as retail installment contracts. A common example is where an automobile finance company initiates a replevin action to gain possession of a vehicle, following payment default. Replevin actions are usually employed when the lender cannot find the collateral, or cannot peacefully obtain it through self-help
Self-help (law)
Self-help, in the sense of a legal doctrine, refers to individuals' implementation of their rights without resorting to legal writ or consultation of higher authority, as where a financial institution repossesses a car on which they hold both the title and a defaulted note...
repossession. Replevin actions may also be pursued by true owners of property, e.g., consignors seeking return of consigned property that the party in possession will not relinquish for one reason or another.
Use of the remedy
Replevin actions are common, and fall into two types of action: where immediate possession of the property is sought, and where the party filing the action is content to wait for an adjudication of final rights. In a case where immediate possession of property is sought, the petitioning creditor is often required to post a bond to protect the defendant against wrongful detention. This approach can be a very powerful weapon in a case of someone holding property wrongly, because it deprives the holder of the use of the property while the case is awaiting trial, thereby putting pressure on the holder to settle the matter quickly.This replevin process falls into two stages:
- the replevy, the steps that the owner takes to secure the physical possession of the goods, by giving security for prosecuting the action and for the return of the goods if the case goes against him and
- the action (suit) of replevin itself (at common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, the ordinary action for the recovery of goods wrongfully taken would be one of detinueDetinueIn tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor...
; but no means of immediate recovery liable to be seized).
Replevin is used when the party having the right of property cannot simply invoke self-help and take the property back. Where the party has the ability to do this directly, it is referred to as repossession
Repossession
Repossession is generally used to refer to a financial institution taking back an object that was either used as collateral or rented or leased in a transaction. Repossession is a "self-help" type of action in which the party having right of ownership of the property in question takes the property...
. For example, in the U.S. States of Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
and Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, if one finances an automobile, becomes a registered owner
Registered owner
The term registered owner is usually used in instances of title of a vehicle to refer to the person who has right of possession of the vehicle, as opposed to the party that has right of property...
of that vehicle, and fails to make payments as agreed, the lienholder cannot simply repossess the vehicle. The lienholder must go to court and obtain an order of replevin.
In many cases, parties initiating a replevin action will elect not to gain immediate possession of the collateral or other wrongfully-held property, and will instead file the replevin action without posting a bond. Once service of process
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
is achieved on the defendant, he or she will likely be required to attend a court hearing on a specific date, at which time the parties' rights to possession will be adjudicated. A plaintiff creditor can typically prevail in the case by offering testimony and business records showing the borrower/defendant's obligation to pay, and default in payment. The Court will thereafter issue a judgment and authorize issuance of a Writ of Replevin, which is served by a sheriff's deputy, working in conjunction with persons hired or employed by the creditor to take the collateral or other property into its possession. The sheriff's role is to keep the peace and allow the creditor to get its property, without threat from the borrower. Once the creditor takes the property into its possession, it can sell the collateral, and apply the proceeds to the debt owed by the borrower.
In other cases, replevy is used to prevent damages that may occur from the continued use of an item, such as a public utility meter. In the case of non-payment of a public utility, a meter is typically left on the premise to allow reconnection should the balance due be paid, or if the person owing the bill sells the premise to another person who does not owe arrears to the utility, however, it is possible for one to reconnect the device and continue obtaining the commodity in question. In such cases, the utility could seek replevin for the utility meter itself, thereby preventing this practice.
Law of replevin internationally
A law related to replevin is found inthe Civil Code of Quebec
Civil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
(arts. 2005 et seq.) and St Lucia (arts. 1888 et seq.)
(which was reproduced in substance from French law, which is also in force in Mauritius
Mauritius
Mauritius , officially the Republic of Mauritius is an island nation off the southeast coast of the African continent in the southwest Indian Ocean, about east of Madagascar...
).
There are analogous provisions in the Spanish
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
Civil Code (art. 1922).
See, e.g., New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
(the consolidating Landlord and Tenant Act 1899); Newfoundland (Act 4 of 1899); Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
(Act I of 1902, § 22, giving a tenant five days for tender of rent and expenses after distress); Jamaica
Jamaica
Jamaica is an island nation of the Greater Antilles, in length, up to in width and 10,990 square kilometres in area. It is situated in the Caribbean Sea, about south of Cuba, and west of Hispaniola, the island harbouring the nation-states Haiti and the Dominican Republic...
(Law 17 of 1900, certification of landlords bailiffs); Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
(Act 15 of 1904).
Replevin is an action of civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
not criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
; therefore, because of the differing burden of proof, a defendant found not guilty of criminal theft may be nevertheless required to return the disputed item or items in civil court.
Replevin does not provide compensation for any monetary loss arising from the loss of use of some income-producing property item. Note also that replevin involves return of an actual specific item or items, not monetary compensation for loss. Thus, it would not normally be used in a case regarding a sum of money, as distinct from the loss of a rare coin, for instance, where the return of the actual coin itself was at issue. In occasional cases of no particular numismatic interest, however, e.g., a bag of money whose contents have not yet been counted, an action may be filed to recover the actual coins and/or bills in question if they are still together.
It is evident that the question of replevin becomes moot
Mootness
In American law, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law...
should the item in question no longer exist as an entity, i.e. if it is destroyed, or in the case of a bag of money, for instance, if the money has been spent. For this reason, the item is normally seized by the court when the action is filed and held until the decision is reached to prevent the waste of a legal action over a nonexistent object and, further, to ensure that the item in question is not destroyed, spent, etc., during the action. This can be used to force a settlement
Settlement (law)
In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. The term "settlement" also has other meanings in the context of law.-Basis:...
from the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
, just or unjust, as he or she is deprived of the use of the disputed object for the duration of the action; if this results in a financial loss, the defendant may find it advantageous to merely pay a relatively small settlement and have the item returned quickly.
Common law rules governing replevin will be abolished in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
when the Tribunals, Courts and Enforcement Act 2007
Tribunals, Courts and Enforcement Act 2007
The Tribunals, Courts and Enforcement Act 2007 is an Act of the Parliament of the United Kingdom. It provides for several diverse matters relating to the law, some of them being significant changes to the structure of the courts and fundamental legal procedures...
, §65 comes into force.
Etymology
The word replevin is Anglo-NormanAnglo-Norman language
Anglo-Norman is the name traditionally given to the kind of Old Norman used in England and to some extent elsewhere in the British Isles during the Anglo-Norman period....
. It is the noun form of the verb "replevy" (from Old French "replevir," derived from "plevir," to pledge).
English law
- Woodfall, Landlord and Tenant (18th ed., London, 1907)
- Foa, Landlord and Tenant (4th ed., London, 1907)
- Fawcett, Landlord and Tenant (3rd ed., London, 1905)
- Gilbert on Distress and Replevin (London, 1823)
- Bullen, Law of Distress (2nd ed., London, 1899)
- Oldham and Foster, Law of Distress (2nd ed., London, 1889)
Scots law
- Flunter on Landlord and Tenant (4th ed., Edin., 1876)
- Erskine's Principles (20th ad., by Rankine, Edin., 1903)
- Rankine's Law of Landownership in Scotland (3rd ed., Edin., 1891)
- Rankine's Law of Leases in Scotland (2nd ed., Edin., 1893)
American law
- McAdam, Law of Landlord mid Tenant (New York, 1900)
- BouvierJohn BouvierJohn Bouvier , American jurist and legal lexicographer, was born in Codognan, France.In 1802 his family, who were Quakers , emigrated to America and settled in Philadelphia. In 1808, he began a printing business, and in 1810, he wed Elizabeth Widdifield, with whom he had one daughter, Hannah Mary...
's Law Dictionary (ed. G Rawle) (London and Boston, 1897), tit. Distress in Ruling Cases - Landlord and Tenant (American Notes) (London and Boston, 1894–1901).