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).
WRIT OF REPLEVIN
There are three methods of collection provided for in Florida’s replevin statute. Two methods involve obtaining a writ of replevin prior to the entry of a final judgment. Prior to undertaking prejudgment replevin, the creditor must file a verified complaint with the court. Florida Statute §78.055 sets forth the language that must be included in the replevin complaint.
The most effective (but riskiest), is a pre-judgment writ of replevin without notice to the defendant. This method is governed by Florida Statute §78.068. Why is this method “risky?” By not giving notice to the defendant of the replevin, the creditor must post a bond for twice the value of the goods subject to the replevin or twice the balance remaining due and owing, whichever is less as determined by the court. In the event the writ of replevin was issued improperly, the defendant will be able to collect from the bond posted by the creditor. One can also envision a potential lawsuit by an aggrieved defendant claiming damages as a result of a wrongful replevin. With that said, sometimes a pre-judgment writ of replevin without notice to the defendant is necessary. For example, if the defendant has the creditor’s secured collateral (perhaps an expensive piece of equipment) at the Port of Miami heading for another country, a pre-judgment writ of replevin without notice becomes warranted.
A very important consideration before utilizing a prejudgment writ of replevin without notice is the strength of the creditor’s underlying case. If the creditor has any doubts as to loan documentation or other possible meritorious defenses of the defendant, extreme caution should be used. If the defendant ultimately prevails in the underlying case (even on a legal technicality), the wrongfully issued prejudgment writ of replevin will most likely be the impetus for a lawsuit against the creditor.
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. The 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 order to show cause is personally served on the defendant.
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, which include 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 was unable to locate the defendant, and detail how the order was served.
SHOW CAUSE HEARINGS
Because of the relative obscurity of replevin in Florida, many process servers do not have experience in 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, and the return of service must accurately memorialize the process server’s service efforts. By providing notice to the debtor of the replevin under the show cause procedures of Florida Statute §78.065, the creditor is not required to post a bond as a condition precedent to issuance of the writ of replevin.
At the show cause hearing, the court will determine whether adequate grounds exist for issuance of a writ of replevin. If the defendant does not attend the hearing (after being properly served with the order to show cause), the trial judge will direct the clerk of court to issue a prejudgment writ of replevin. If the defendant does show, issuance of the writ will turn on the particular facts of that case, depending on the strength of the defenses.
The final method of replevin is post-judgment replevin. In our experience, post-judgment replevin is rather futile, as the creditor can simply use the post-judgment execution tools available to Florida judgment creditors. This would include the traditional seizure and sale of a debtor’s personal property. The traditional post-judgment collection methods are detailed elsewhere on our website.