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January 30, 2023 Collections

What is the Difference Between Detinue and Replevin?

When a property is withheld or taken, there are methods in place to return it to the rightful owner. A bank or credit card company may need to get back their property if the buyer defaults on payments. This happens most commonly with vehicles as well as furniture or electronics. The law provides ways for the rightful owner of property to get it back into their possession. Detinue and replevin are legal actions that you can take to retrieve your personal property. It is helpful to understand replevin and detinue when you are involved in litigation.

What is Detinue?

Detinue is a legal action that can be taken to recover possessions that are wrongfully held by another. Creditors often utilize collateral when they provide loans. When a borrower defaults on the loan, it gives the creditor the right to take detinue actions to obtain the goods that belong to them. A borrower in possession of the property that was part of loan collateral must return it to the proper owner. If ordered by a court, the order would require a defendant to return the property or the value of the property. 

Understanding Replevin

When someone has property to which they do not have a legal claim, the owner may use replevin to get it back. A replevin action is a legal action that gives the property back to the rightful owner. A writ of replevin is a legal document that authorizes someone to regain possession of property that they own. The owner may then seize the property to get it back. An owner may be able to best accomplish this with help from the local sheriff, such as when a lender repossesses a vehicle due to default. 

Replevin vs. Detinue

While replevin and detinue are very similar, there are some differences. You will want to understand replevin vs. detinue in legal matters. A replevin action generally provides a temporary order. It allows the plaintiff to take possession of their property while further litigation continues. Replevin is typically the first step when a plaintiff wants to get the property back from a defendant who wrongfully took it. 

Detinue is a legal action that is most often utilized when a person has possession of property that they should not have, such as when they default on a loan. Replevin allows the seizure of property by law enforcement. Detinue provides for the return of the property by the party who has it unlawfully. Detinue is useful in situations where a party has not actually stolen property but instead is still in possession of it wrongfully because they failed to pay for the goods. 

Legal Process to Retrieve Property

The first step in the retrieval of property is for the plaintiff to file a replevin claim. The district court will set a hearing date. The claim must be filed in the district or district court, depending on their jurisdiction over the matter. There will be a show cause hearing at which time you will present your case. The plaintiff must present evidence to prove that they are the lawful owners of the property. They must show proof of the damages claimed.

It is important to note that simply having possession of an item does not mean that it legally belongs to that party. The court will require a show cause order to require parties to provide their evidence of legal ownership. The judge will review the matter and make a determination. If the plaintiff has provided enough proof, the judge will approve the claim to move forward and will issue a writ of replevin for the return of property. The matter then automatically becomes a detinue action, requiring the defendant to return the goods. 

What is a Writ of Replevin?

A writ of replevin is a court order that provides a decision on the lawful owner of property. The writ of replevin may be utilized to seek the return of the property. When the writ of replevin states that the legal owner of the property is the plaintiff, the defendant is ordered to return the property. The plaintiff may seek help from the local sheriff to go to the defendant’s home or business to take possession of the property. In the case of repossession, the plaintiff may need to post a bond for the value of the property. This is a temporary requirement until the final determination of ownership is made. 

When you need to be involved in litigation regarding property ownership disputes, it is helpful to understand the differences between replevin and detinue. To learn more and to get the legal assistance you need, contact our law firm at Snellings Law, LLC, to discuss the details of your case.