April 30, 2021Share
What You Need to Know Regarding Replevin Procedures in Florida
Florida law provides for two alternative procedures for replevin –
A: Order to Show Cause
- The defendant receives notice of the replevin action.
- A lawsuit is filed and an Order to Show Cause is issued by the Court and served on the Defendant.
- The Court sets a hearing on the Order to Show Cause, which deals with the right to possession of the collateral.
- The Order to Show Cause must be served on the Defendant at least five days prior to the hearing.
- In the event the Defendant does not show cause why he should be entitled to possession, the Court will authorize the issuance of a Writ of Replevin.
B. Pre-judgment Writ
- The defendant receives no notice whatsoever of the replevin action.
- To obtain a Pre-judgment Writ, a lawsuit is filed and the Plaintiff must post a bond for twice the value of the collateral or twice the balance due, “whichever is lesser as determined by the Court”.
- The Court issues the Writ of Replevin without notice to the Defendant and without a hearing (before the lawsuit is even served on the Defendant).
Clients can SIGNIFICANTLY reduce the amount of time it takes to obtain a Writ of Replevin by posting a bond and obtain a Pre-judgment Writ. We can process replevin files more quickly where a client (1) provides a completed Affidavit with each referral, and (2) provides the name and a local phone number of your agent/towing company who will assist the Sheriff with the replevin.
Since there is no Order to Show Cause hearing in this process, we can save as much as 90 – 120 days off the process in obtaining the Writ of Replevin. Should you wish to post Bonds rather than having a hearing, the referral should be specifically identified as “Pre-Judgment Replevin” so we can quickly identify which files you want to post a bond. In the alternative, we can make general rule to prepare prejudgment replevin for all files unless instructed otherwise. For clients who choose to post a bond and obtain a prejudgment Writ of Replevin, we obtain the Writ in approximately 25 days after filing the Complaint.
Documents and Information Required to file Replevin
- SSN of customer(s)
- Address(es) for customer(s)
- Account balance
- Date of default
- Fair market value of collateral
- Repo agent who will meet the Sheriff (name and phone number)
Summary of the replevin process in our office (bond issued)
- File received.
- Demand letter sent (if requested by the client; not required).
- Affidavit and bond form (if necessary) prepared and sent to client.
- Upon receipt of signed Affidavit and bond, Complaint sent to the Clerk for filing.
- Order Directing Clerk to Issue Writ of Replevin signed.
- Writ issued by the Clerk and sent directly to our office, we then send to the Sheriff.
- Complaint and Writ sent to Sheriff for service.
- Writ served/non-served by the Sheriff.
- When collateral recovered, file Motion for Final Order of Replevin.
- Final Order entered – replevin completed and OK to sell collateral.
Completion of the Replevin Process
The car should be held when writ served. Once the collateral is recovered by using the pre-judgment Writ, the defendant may obtain the return of the collateral by posting a bond in the amount of 1 1/4 the amount due on the agreement within 5 days after service of the writ. If this occurs (which is very rare), the Court will hold a final hearing on the right to possession.
The creditor cannot sell the collateral until it obtains a final order of replevin. We submit a Motion and proposed Order to the Court 20 days from the date of repossession. Once this Order is entered, we provide the same to our client and advise the collateral may now be sold. Of course, the sale must be made after notice to the defendant and sold in a commercially reasonable manner according to state law adopting the Uniform Commercial Code.
Collateral Being Hidden or in a Locked Space
When property is concealed in a house or garage, or is being hidden and not voluntarily surrendered to the Sheriff, Florida law provides the Sheriff may “cause such house, building or enclosure to be broken open”. To do this, the creditor must first obtain a “break order” from the Court. A break order can only be requested by filing a Motion after an unsuccessful attempt to serve the Writ.
DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.