If you are unsure about the difference between Replevin and Repossession and/or which action is the one most likely or advisable to use to get back property that is in default or that may have been taken unlawfully, The National List’s goal in this blog is to help point you in the right direction.
According to Wikipedia (see other definitions in the Resources section below), “Replevin is a lawsuit that enables a person [or business] to get back personal property taken wrongfully or unlawfully, pending a final determination by a court of law, and get compensation for resulting losses.
”Replevin is used when the party having the right of property cannot simply invoke self-help and take the property back. If the party has the ability to do so directly, the action is referred to as repossession. For example, in the 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 certain cases, replevy (recovery of seized goods by replevin) 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, or the removal of an item to a place from which it cannot be repossessed.
Car Repossession v. Replevin
If a consumer defaults on car loan or lease payments, the lender can take the car back via repossession or replevin. The agreement usually allows the creditor to keep the title to the car and take back the vehicle if the consumer fails to make payments.
Repossession is the most common way creditors take cars back. It allows them to take possession of the car without suing the consumer. Most states allow creditors to come onto a consumer’s property and take the car without advance notice. Once creditors take possession of a vehicle, they can either keep the car or sell it. Most states require the creditor to send the buyer written notice of the sale. If the car is sold for less than what is owed on the balance of the loan or lease, then the creditor may sue for the difference in court.
Replevin is a type of lawsuit whereby a creditor seeks an order from the court requiring the consumer to give back the car. If creditors cannot repossess the vehicle without “breaching the peace” (for example, it is in a locked garage), a replevin order from the court is necessary. A consumer who fails to abide by the court order may be subject to both civil and criminal penalties.
Consumers are entitled to due process before the creditor can take the car through a replevin proceeding:
- written notice of the creditor’s intent to obtain an order of replevin,
- an opportunity for a hearing,
- written notice of the time, date, and location of the hearing, and
- the right to dispute or respond to the complaint (varies by state but is usually short).
A civil suit requires no court appearances unless the matter is contested and is comparatively inexpensive. Most attorneys will handle the matter on a contingency or small fixed fee before judgment and a contingency fee for post-judgment collection. If a creditor is unable to locate and hire agents to seize the goods, store the goods, and sell the goods, a civil suit would be advisable because once a judgment is obtained, the sheriff will perform all these tasks for a significantly lower fee.
When Replevin Is Advisable
Situations where a replevin action may be advisable include but are not limited to:
- The property is extremely difficult to relocate, such as in business at a personal residence.
- When the property is in the hands of a third party—being held under a common law lien.
- If the value of the equipment is substantial and it cannot be easily removed.
- When state law favors it.
- When it is likely that the property will disappear.
- When the effect on the debtor, and the surrounding circumstances warrant it.
If you question whether you need to take legal action by replevin vs. a repossession, contact The National List of Attorneys. We will give you Free assistance in finding local counsel to advise you. The National List has quality attorneys actively doing replevin work on behalf of our clients. Call 800.227.1675 today! To speak directly to our VP of Client Services, Kacey Rask, call 701.425.0984 or email email@example.com. .
Disclaimer: The information in this blog should not be considered as legal advice. The National List is providing it purely for educational purposes. Please seek the advice of one of our qualified attorney members if you are in a situation where you need to retrieve property that is in default or that may have been taken unlawfully.