The Replevin Law is a relatively obscure, yet powerful tool for aggrieved creditors. Governed by Florida Statute 78 and a scattered body of Florida common law, replevin actions serve as the methods by which a secured creditor can quickly recover collateralized property in possession of a non-paying defendant. These entities often use the action of replevin to recover items of personal property (i.e. equipment or inventory).
Replevin is essentially a lawsuit in civil court that seeks court-ordered possession of personal property wrongfully taken or detained. This most common replevin suit rendered against the defendant is personal property that they pledge as collateral and then discontinues making the payments. Sometimes people will take what does not belong to them, or refuse to return items as requested by their rightful owner.
In these instances, a plaintiff can file with the court to enact serving of the writ of replevin for the release of the property, or to attain payment when a defendant has failed to do so.
WRIT OF REPLEVIN
Three methods of property action provided in Florida’s replevin statute exist. Two methods involve obtaining a writ order of replevin prior to entering a final judgment. Prior to undertaking prejudgment replevin in court, a credit must claim and delivery a verified petition complaint with the court. Florida Statute §78.055 sets forth the language that must be included in the complaint of replevin.
In a prejudgment writ, the defendant receives no notice at all regarding the replevin action. In order for the plaintiff to obtain a prejudgment writ, they additionally file a lawsuit and post a bond. The court then issues a writ in the amount due and owing to the value of the property.
One the property or payment is repossessed by the court, the defendant may obtain release on their collateral by posting a bond within 5 days after the service of the writ. The defendant can then file an agreement for the satisfaction of any judgment or dissolution of a prejudgment.
JUDGMENT OF REPLEVIN
The next procedure under Florida’s replevin statute is prejudgment replevin with notice to the defendant. This is governed by Florida Statute §78.065. As the name suggests, this form of replevin is still done prior to a judgment, with notice given to the defendant. This notice is provided via the Order to Show Cause procedures set forth in Florida Statute §78.065. Careful compliance with the procedural hurdles of the statute is imperative. A creditor must ensure that the defendant personally receives the order to show cause through process service.
If personal service is unattainable (i.e. the defendant is stealthily avoiding the process server by staying on a friend’s couch for a few weeks), the process server (or sheriff) must comply with the strict mandates of the statute, including placing the order to show cause and summons on the main entrance of the defendant’s residence. The return of service filed by the process server must state that the server could not locate the defendant while detailing how they served the order.
SHOW CAUSE HEARINGS
Because of the relative obscurity of replevin in Florida, many process servers don’t have experience serving these show cause orders. Therefore, it is imperative for the creditor or creditor’s attorney to make sure the process server complies with Florida Statute §78.065. Additionally, the return of service must accurately memorialize the process server’s efforts. The law does not require a creditor to post a bond as a condition precedent to issuing the replevin for the stated property providing notice to the debtor of the replevin under the show cause procedures of Florida Statute §78.065.
At the show cause hearing, the court will determine whether adequate grounds exist. When a defendant does not attend the hearing (after experiencing properly served documents with the order to show cause), the trial judge will direct the clerk of court to issue a prejudgment writ of replevin. However, if the defendant does appear, issuance of the writ will turn on the particular facts of the case. This depends on the strength of the defenses.
Finally, the last method of replevin is post-judgment replevin. In our experience, post-judgment replevin is relatively futile. A creditor can simply use the post-judgment execution tools available to Florida judgment creditors. This would include the traditional seizure and sale of personal possessed property of the debtor. The traditional post-judgment collection methods are detailed elsewhere on our website.