Replevin

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Replevin is part of the law relating to creditors' rights, and is sometimes known as "claim and delivery." The word is of Anglo-Norman origin, being the noun form of the verb "replevy" (from Old French "replevir," derived from "plevir," to pledge).

It 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.

Use of the remedy[edit]

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:

  1. 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
  2. the action (suit) of replevin itself (at common law, the ordinary action for the recovery of goods wrongfully taken would be one of detinue; 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, the action is referred to as repossession. For example, in the U.S. States of Wisconsin and Louisiana, if a person who 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.

Law of replevin internationally[edit]

Provisions analogous to replevin are found in the Civil Code of Quebec[1] 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).

Similar provisions are also found in:

  • New South Wales (the consolidating Landlord and Tenant Act 1899);
  • Newfoundland;[2]
  • Ontario (not available without court order,[3] except with respect to distraint for rent, where a tenant is to be given five days for tender of rent and expenses after distress);[4]
  • Jamaica (Law 17 of 1900, certification of landlords bailiffs); and
  • 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.

In 2007, the common law rules governing replevin in England and Wales were eliminated by the Tribunals, Courts and Enforcement Act 2007 (but that provision has not yet been implemented).[5]

See also[edit]

References[edit]

  1. ^ known as movable hypothec without delivery, at Art. 2696 CCQ et seq.
  2. ^ The Lodger's Goods Protection Act, S.N. 1899, c. 4 , now repealed by the Obsolete Acts Repeal Act, S.N. 2006, c. 13
  3. ^ An Act to Amend the Law of Replevin in Upper Canada, S.C. 1860, c. 45 , subsequently replaced by an interim order for recovery of personal property under the Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 117 (now known as the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 104 )
  4. ^ The Statute Law Revision Act, 1902, S.O. 1902, c. 1, s. 22 , subsequently becoming An Act respecting Landlord and Tenant, R.S.O. 1897, c. 342, s. 16 , re-enacted as The Landlord and Tenant Act, S.O. 1911, c. 37, s. 52 , and now known as the Commercial Tenancies Act, R.S.O. 1990, c. L.7, s. 53
  5. ^ s. 65, UK Parliament. Tribunals, Courts and Enforcement Act 2007 as amended (see also enacted form), from legislation.gov.uk.

Further reading[edit]

Public Domain This article incorporates text from a publication now in the public domainChisholm, Hugh, ed. (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press. 

English law[edit]

  • 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[edit]

  • 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[edit]

  • McAdam, Law of Landlord mid Tenant (New York, 1900)
  • Bouvier'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).

External links[edit]