replevin

Definition of replevin

Etymology

Anglo-Norman, from Old French replevir ‘recover', from re- + plevir (apparently from a Germanic word which was also the source of English pledge).

Pronunciation

• IPA: /rɪˈplɛvɪn/

Noun

replevin (plural replevins)

1. (law) an action to recover personal property unlawfully taken; the writ or procedure of such action

Verb

replevin (third-person singular simple present replevins, present participle replevining, simple past and past participle replevined)

1. (transitive) to replevy
   
   * 1998, Cormac McCarthy, Cities of the Plain:
   Arranged about her are artificial flowers that appear in their varied pale and pastel colors to be faded from the sun. As if perhaps replevined from some desert grave.

Further reading

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.

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:

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, 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.