The Right of Replevin and What May Be Taken
Tracing its roots back to the common law, replevin is not a novel concept. While the cause of action is simple—allowing for the recovery of personal property that is wrongfully detained—replevin can be confusing for some creditors. This article is a brief glance at the nuances of chapter 78, Florida Statutes, to demonstrate how replevin can be a valuable tool to creditors.
In its simplest form, a writ of replevin allows a creditor to obtain possession of personal property on an expedited basis before the entry of a final judgment. When deciding whether to grant a writ of replevin, the court considers the creditor’s present, possessory right to the property at the time the suit is commenced. In the creditor context, the majority of replevin actions involve defaulted obligations under loan documents.
It is important to understand that replevin is only a remedy for recovering personal, tangible property. Thus, real property is ineligible, as are funds held in a bank account or in accounts receivable. There is, however, at least one instance where metal coins, paper bank notes, and checks were lawfully seized. In addition, a creditor may not seize property previously taken by a tax authority under a warrant for the collection of a tax, assessment, or fine.
Once a creditor lawfully seizes property through a replevin action, the debtor or any defendant that was named in the original lawsuit, may not use a new replevin action to recover the property. That is, the remedy of replevin cannot be used twice as to the same property.
Finally, as a practical matter, the sheriff must be able to physically identify and manually seize the property. Thus, it is paramount that the writ of replevin clearly describes the property to be seized.