Replevin: What a weird Latin word. Often (in America), it is called “Claim and Delivery.” Whatever. Essentially, it is a lawsuit for breach of contract, combined with pre-judgment remedies seeking recovery of your collateral.
A lawsuit for breach of contract is filed (based upon your written contract), and included therein is a cause of action for “Possession.” Possession of what, though? Well, possession of all the collateral listed in your contract. It does not matter what it is: cars, construction equipment, tractors, MRI machines, weed eaters, a lava lamp… anything.
Shortly after the lawsuit is filed, we then file an Application for a Pre-Judgment Writ of Possession. That is a motion brought to the Court, seeking to have the Judge order your customer to return the collateral. We also have the Clerk of the Court issue a Writ. The Writ is a directive that the Sheriff recovers the collateral and then delivers it to you.
How to File for a Writ of Replevin
What are the steps and procedures involved in filing a complaint for a writ of replevin?
So, how exactly do you get rolling if you need the court’s help recovering your collateral? The process is more straightforward than it sounds—though, like baking bread or assembling IKEA furniture, there are a few steps you can’t skip.
1. Choose the Right Court
First, figure out where to file your complaint. The value of the property dictates your filing location:
- If the balance owed to you is $35,000 or less, you’ll head to either the Limited Jurisdiction Division of the Superior Court.
- If it’s over $35,000, your playground is the Superior Court.
- And if the dispute involves an estate, trust, conservatorship, or guardianship, then (and only then) do you venture into the Probate Division.
Pro tip: Small Claims Court isn’t the right venue for recovering personal property—leave them to sort out garden-variety money disputes.
2. Draft and File Your Complaint
With your venue sorted, prepare a complaint specifically seeking the return of the personal property. This isn’t just any old lawsuit—you’re asking the court for the return of a lava lamp, MRI machine, or whatever bauble has gone astray, not just cash.
3. Include the Proper Documentation
Attach any relevant contracts, proof of ownership, or documentation supporting your claim to the property. If you have a signed agreement, a title, or even a grainy photo of the missing weed eater, toss it in. The more, the merrier—judges love paper trails.
4. Application for a Pre-Judgment Writ
Once the complaint and all the paperwork are filed, you’ll need to submit your application for a Pre-Judgment Writ of Possession. This is the formal ask: you want the Judge to order the return of the goods before the lawsuit is resolved, so you’re not left empty-handed while the legal gears grind.
5. Serve the Papers
The Court will require that you serve the defendant (the party holding your property) with a copy of the complaint and writ application. Cue the formal process server, because proper notice is required—no stealthy ninja tactics allowed.
6. Obtain and Post the Bond
Before the Court pulls out its gavel, there’s a bit of financial show-and-tell involved. The applicant (that’s you) must provide sufficient security—think of it as a deposit to make sure no one goes rogue with the property. Usually, the bond or “written undertaking” must be double the value of the property in question. This can take the form of a surety bond, a cashier’s check, a letter of credit, or something else the Court deems acceptable.
If the property is ‘upside down,’ this is waived. If the court approves your request, you’ll be directed to post your bond or other security. This step is as crucial as remembering oven mitts—skip it, and you can’t get the writ.
7. Await the Judge’s Order
After reviewing your application and supporting documents, the judge may issue an order directing the return of the collateral.
With these steps, you can transform “what a weird Latin word” into a real, actionable remedy for recovering your stuff. Send the Order from the Judge with a writ to the clerk, who issues it. Then take both and send them to the sheriff. He’ll go screw his gun into the nose (not really) of your customer and get your stuff back.
Replevin vs. Money Damages: Key Differences
What is the difference between seeking a writ of replevin and filing a claim for money damages?
So, how is replevin different from just suing for money? It comes down to what you actually want out of your lawsuit.
- If you want the thing back—the car, the MRI machine, the lava lamp—then replevin is your friend. The whole point is to recover your specific property, not just its value. It is a way to ‘collect’ your judgment at the beginning of the case, rather than the end.
- If you only want cash in exchange for your loss (let’s say, you don’t care about your weed eater anymore and would rather just be paid for it), that’s when you’d file a regular claim for money damages. There’s no need to go through the rigmarole of a writ of possession.
Think of it this way:
Replevin = “Give me my stuff back.”
Money Damages = “Just pay me for what I lost.”
How Replevin Stacks Up Against Other Legal Remedies
How does replevin compare to other remedies such as attachment, garnishment, and preliminary injunctions?
You might be wondering, “Is replevin the only arrow in my quiver?” Let’s put it in perspective. Replevin is just one tool among several pre-judgment remedies available when you need to recover property.
- Attachment: The court freezes (or “attaches”) assets owned by your customer—think money in a bank account or valuable equipment—to secure your claim, but it doesn’t actually put the physical collateral back in your hands. Must be a commercial loan, though, not consumer.
- Garnishment: Allows you to intercept money owed to the debtor by someone else (like wages or accounts receivable), but again, it’s not about recovering the specific item you’re after.
- Preliminary Injunctions: These restrain your customer from selling or moving the collateral, effectively keeping things in limbo while the legal wrangling continues.
What sets replevin apart? Unlike the other remedies, it’s laser-focused on getting the actual item back into your possession before the case is even decided. Instead of waiting for a final judgment or playing a long game to collect your money, replevin asks the court to act now, getting the sheriff involved to reclaim your specific collateral.
Where Can You File for Replevin?
In which courts can a complaint for a writ of replevin be filed, and how does the value of the property affect this decision?
If your collateral is worth $35,000 or less, you can head to the Limited Jurisdiction branch of the Superior Court. For when you’re dealing with those mid-sized claims—tractors, MRI machines, or even the fancier lava lamps.
But if your prized property tips the scales above $35,000, the Superior Court is your only destination. That’s where the bigger-dollar drama unfolds.
There’s a narrow exception: If your fight over possession ties into something like a probate, guardianship, conservatorship, or estate case, the Probate Division may be the right venue.
But that’s a specialized situation—think family squabbles over Grandma’s collection of rare weed eaters.
One more thing: Small Claims court is off the table for replevin actions. So, no shortcuts there, even if the item is small enough to fit in your glovebox.
Securities and Bonds in Replevin Actions
What securities or bonds are required in a replevin case, and who is responsible for obtaining them?
When you’re moving forward with a replevin action, the Court wants a bit of assurance that everyone will play fair. To that end, it typically requires what’s known as “sufficient security”—think of it as a safety net to protect both sides until things are sorted out.
- Who’s responsible: Usually the person seeking the writ (that’s likely you), but sometimes it’s the current holder of the property.
- Amount: Double the value of the property at issue.
- Acceptable forms: Bond, letter of credit, security interest, or cold hard cash (as long as it’s acceptable to the Court).
The judge may call this a “written undertaking” or simply a bond, but the idea is the same: someone has to put up the financial backing.
Are Replevin Laws Universal Across States?
Most every state in the U.S. has its own replevin statute or set of court rules outlining how replevin proceedings work. While the specifics may vary, the core idea remains the same: there’s always legal structure supporting your ability to recover property through replevin, no matter where the collateral or customer may be hiding out.
Why Not Small Claims Court?
Small Claims court has its uses, but recovering personal property through replevin isn’t one of them. Why? The answer is all about power and process.
- Small Claims court is designed for disputes over money, not for ordering someone to hand over your backhoe, MRI machine, or lava lamp.
- It lacks the authority to issue the special orders—or to deploy the sheriff—needed to physically get your collateral back.
Courts with broader authority can grant you a Writ of Possession and send the sheriff to reclaim what’s yours.
Where Does a Writ of Replevin Get Filed?
Under what limited circumstances can a writ of replevin be filed in the Probate Division?
- Limited Division of Superior Court: If the stuff you want back is worth $35,000 or less, you have a choice.
- Superior Court only: For anything above $35,000.
- Probate Division: Only if there’s an ongoing matter involving an estate, trust, conservatorship, or guardianship tied to your collateral.
So, unless inheritance drama or a complicated trust is involved, you’re looking at District or Superior Court for your replevin adventure.
Need Help Navigating Replevin?
The Fortra Law Litigation and Bankruptcy Team is here to help you reclaim what’s rightfully yours. From preparing your complaint to securing a writ and coordinating with the court and sheriff, we’ll guide you through every step of the replevin process. Contact us today to schedule a consultation and take control of your collateral recovery.
