When another party is in possession of your property, you can pursue the remedy of replevin in order to regain possession. Replevin is used most frequently when a commercial or consumer debtor defaults on a secured loan and you need to repossess property. Replevin can allow you to reclaim what is yours.
What is replevin?
Put simply, replevin is a court action filed against an individual who owns property that belongs to you. While the individual does not need to be a debtor, the majority of replevin cases involve individuals who are debtors. One of the most common of those is car repossessions. When a borrower defaults on their car loan, the agency that offered the loan has a legal entitlement (by contract) to take control of the car.
Business law is one of the most diverse and complex fields of practice in the legal profession. This is particularly so in jurisdictions such as New Jersey. New Jersey is known to be litigious to a certain extent. Within this litigious complexity, court parties have access to certain remedies to assert their positions and interests with regard to business dealings. Replevin is one of these remedies. In essence, replevin is a legal remedy that allows litigants to recover property from another party. Replevin may be the nature of an entire lawsuit. However, you may also introduce it as a motion within an ongoing civil litigation.
Elements of replevin
There are two basic elements of replevin, which are as follows:
- The claim, which you make in a court filing; and
- The actual delivery of the property. This is usually a court order that may include monitoring to ascertain that the replevin procedure was completed in accordance with the New Jersey Revised Statutes and the court’s civil procedure manual.
It is important to note that replevin differs from the strategy of seeking compensation in the sense that the intention is to get the actual property back. Let’s say you own a used car lot that provides in-house financing. One of your customers agrees to buy a 1986 Ford Mustang SVO after you extend her a loan of a few thousand dollars. If your new borrower defaults on the loan, you may want to file for replevin. By doing so you can get the classic Mustang back from her since this is a classic car with greater revenue potential for your business.
Common types of replevin cases
As stated earlier, the most common type of replevin case involves the repossession of a car after a borrower has defaulted on their loan. You should contact an experienced New Jersey replevin attorney if:
- Your landlord evicted you and kept your property;
- You are expecting to receive an inheritance, and someone is denying you the right to hold that property;
- Your business was the subject of theft, and your property was recovered but never returned;
- You allowed a business associate to use equipment that they never returned;
- You are a creditor looking to reclaim your property; or
- A creditor wrongfully seized or took your property.
When it comes to pursuing replevin actions in court, the accuracy of the filing is crucial to ensure that the claim will be delivered. To this effect, you should seek an experienced law firm to handle this matter for you as soon as possible.
Initiating a replevin action
The writ of replevin
New Jersey laws regarding replevin actions can be found in Rule 4-61. While in some states you can initiate a replevin without a hearing, New Jersey requires a court ruling to reclaim property by court order. The court will give the party in possession of the property at least three days notice during which they can file affidavits and cross-motions. If the court determines that the likelihood that the motion will go in favor of the “movant” (the individual requesting repossession of the property) then a writ of replevin will be granted and the property will be moved to the movant. In some cases, the court may instead order the individual in possession of the property to pay a security deposit on the property to satisfy any claim that may go in the movant’s favor (as a condition of retaining the property while a final decision is being rendered).
Ex-parte writ of replevin
In some cases, the court may find that the movant (the individual requesting possession of the property) can reclaim the property without the foreknowledge of the possessor (the individual in possession of the property). To get an ex-parte writ of replevin, the movant must show the following:
- They will probably win the motion to move the property; and
- They will suffer economic duress if the property is not moved quickly; or
- The possessor is likely to take off with or destroy the property.
Even when these factors can be proven, the court may instead issue a restraining order on the possessor to not move or harm the property in any way.
Executing the writ of replevin
Before a writ of replevin can be executed, the movant must submit a detailed description of the following:
- Reason why you are the rightful owner of the property,
- Estimated value of the property,
- A statement detailing why the property is wrongfully detained by the possessor.
After the writ is granted, it is sent to the sheriff’s office who will execute the writ. At this point, the movant/plaintiff may annex a claim for damages related to:
- Recovery of the property,
- Devaluing of the property, or
- Other economic damages sustained by the defendant/possessors illegal holding of the property.
Defenses and counterclaims to replevin actions
A possessor/defendant may claim that a property rightfully belongs to them, providing reasons and evidence to the court for their contention. In some cases, a writ of replevin will be granted based on facts provided by a plaintiff, but the defendant will successfully prove the property belongs to them. If this happens, the defendant can be entitled to the property back and or the value of the property. In cases of a statutory lien, the defendant will have the amount due adjusted to reflect the ruling. Additionally, a defendant may be entitled to legal fees if a writ of replevin is issued in their favor after being brought by a plaintiff.
Contact a replevin attorney in New Jersey
Stating an incorrect cause of action or failing to establish the right to claim without encumbrances may prevent a litigant from recovering his or her property. You must assert the legal authority of a replevin motion insofar as proving legal authority to make the claim and posting the proper bond if required by local court rules. There is always a chance that the party who is being sued may lose, damage or destroy the property. This may subsequently require a course of action whereby the respondent must pay for the loss and legal costs. Therefore, for all these reasons, you should retain the services of a Parsippany replevin attorney in New Jersey. Call Snellings Law LLC today.
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