Recovering Personal Property Collateral: When Should Secured Creditors Consider Replevin Instead of Self-Help Repossession?

Many secured creditors and equipment leasing companies have encountered defaulted debts, where the debtors and lessees retain possession of the collateral, including cars, boats, machinery, or other equipment. The debt is secured by personal property, but creditors are often faced with the same quandary: how to quickly take possession of the property to offset the defaulted debt.

Many secured creditors are aware of the right to “self-help” repossession—a process that is often fraught with risks and limited to the recovery of assets with a known location. However, sometimes judicial intervention is required to immediately prevent waste, concealment or destruction of the collateral on an emergency basis, through a process known as replevin. With concerns over destruction or concealment of the asset, these secured creditors need to efficiently take possession of the property, while minimizing risks to the creditor.

This article provides an overview of self-help asset recovery and replevin actions in Florida as well as an explanation on why creditors should choose replevin when they can.

What Options do Florida Creditors Have for the Recovery of Personal Property?

When it comes to recovery personal property and assets, Florida creditors generally have two options for recovery:

• Self-Help Repossession; and
• Replevin.

Self-Help Repossession

In Florida, creditors have the right to use self-help methods for recovering personal property that is wrongfully kept or taken by debtors. Fla. Stat. § 679.609. Self-help asset recovery is more commonly known as repossession. When Florida creditors resort to repossession, they generally hire asset recovery specialists who are charged with locating the creditor’s property, taking the property from the debtor, and returning it to the creditor.

Replevin

Florida provides a statutory right of replevin. More specifically, Fla. Stat. § 78.01 provides:

Any person whose personal property is wrongfully detained by another person or officer may have a writ of replevin to recover said personal property and any damages sustained by reason of the wrongful taking or detention as herein provided.

Fla. Stat. § 78.01.

When a Florida creditor chooses to recover its personal property through replevin, the creditor asks the court and county sheriff to assist in recovering its property, rather than taking matters into the creditor’s own hands. To do so, the creditor files a lawsuit that describes specific information about the creditor’s property and the debtor’s wrongful possession of such property. Once the court finds that the debtor has wrongfully taken or detained the creditor’s property, the court will issue a writ of replevin. The creditor then delivers that writ of replevin to the county sheriff who has the authority to recover the property from the debtor and turn possession over to the creditor. It should be noted that creditors interested in pursuing a replevin action must demand return of the property from the debtor before filing a replevin action. Security Underwriting Consultants, Inc. v. Collins, Tuttle Investment Corp., 173 So. 2d 752 (Fla. 3d DCA 1965).

Why is Repossessing Personal Property so Risky?

Self-help repossession can be dangerous and risky. Repossession is dangerous because creditors or asset recovery specialists never know the situation they will encounter when attempting to take possession of the property, often without any notice to the debtor. Entering the real property of another with an intent to take something from the owner is likely to lead to hostile encounters between the parties. Creditors or recovery specialists repossessing personal property may be risking their health or safety in the process of repossession.

Another concerning aspect of using repossession to recover personal property is that recovery of the property can be difficult and sometimes impossible. Before a creditor or asset recovery specialist can repossess personal property, the personal property must be located. Locating personal property that is likely being concealed or kept behind lock and key can be difficult and time consuming. Florida creditors or asset recovery specialists who repossess personal property also take care not to create liability by breaching the peace in the process.

A critical limitation on self-help repossession, is the rule prohibiting creditors from “breaching the peace.” Fla. Stat. § 679.609(2). In Florida, breaching the peace can be as extreme as getting to physical altercations with debtors or as seemingly menial as cutting a bike lock. “Breaching the peace” is quite a broad standard. Therefore, asset recovery specialists are often only able to recovery personal property when it is readily available in public and completely vulnerable. For example, if a creditor hires an asset protection specialist to repossess a car, the asset protection specialist will not be allowed breach the peace when repossessing the vehicle. This means that the creditor will not be permitted to cut any locks, enter any buildings, remove any covers, or perform any similar acts when repossessing the car. If the car is covered, behind a locked gate, or in a garage, the asset recovery specialist cannot repossess the car without breaching the peace and breaking the law. When a creditor breaches the peace, the creditor may become liable for any damages arising out of the specialist’s breach.

For example, in Sammons v. Broward Bank, a creditor bank hired individuals to repossess a car from a debtor who defaulted on its secured loan with the bank. The individuals hired by the bank slashed the debtor’s tires and chased the debtor when attempting to repossess the vehicle. The debtor filed a lawsuit for tortious repossession of the vehicle, and the appellate court held that secured creditors have an obligation to ensure that peace is not breached, even by its repossession agents, during the course of repossession. Sammons v. Broward Bank, 599 So. 2d 1018 (Fla. 4th DCA 1992). In another case, Raffa v. Dania Bank, the court held that the bank did not breach the peace during repossession, but was still liable for conversion because it wrongfully repossessed the debtor’s vehicle. Raffa v. Dania Bank, 321 So. 2d 83 (Fla. 4th DCA 1983).

These examples represent just a small percentage of the risks involved in repossession.

When Should Creditors use Replevin to Recover Collateral?

Many creditors seeking replevin have already exhausted their efforts in self-help repossession, finding that the debtor is always a step-ahead with concealing the property or otherwise storing it out of reach and behind lock-and-key. Unlike repossession, replevin actions utilize the court and sheriff to recover personal property in a more secure and safe manner. Following a formal replevin process may require some additional up-front costs, it comes with the added benefit of reducing risk of liability. Further, replevin actions provide a way to seek more immediate emergency relief from the court to quickly preserve and protect the value of the collateral.

Replevin is Based in a Statutory Right

When a creditor files a replevin action and a court issues a writ of replevin, the creditor minimizes the risk of incurring liability for breaching the peace or otherwise breaking the law by attempting to recover personal property. The procedural and substantive requirements for obtaining a writ of replevin from the court are outlined in Chapter 78, Florida Statutes, which clearly outlines what a Florida creditor must do to lawfully recovery its personal property.

Once a creditor fulfills its obligations in seeking replevin from the court, the sheriff in the county where the property is located is directed to recover the creditor’s property. A great benefit of having a sheriff recover property subject to a writ of replevin is that the sheriff has broader legal authority to recover the property than a creditor or asset recovery specialist would during repossession. Courts can issue a “break order,” authorizing the sheriff to cut locks and enter buildings to located and recover the collateral.

Pre-Judgment Writs Can Be Used to Recover Personal Property Immediately

Creditors must act quickly to preserve and protect the value of the collateral. Florida law allows creditors to petition the court for a pre-judgment writ of replevin if debtor “failed to make payment as agreed” or if the property is at risk of being hidden, destroyed, or removed from the state. If a court determines that such a risk exists, the court may issue a pre-judgment writ of replevin which allows the creditor to recover its property immediately, rather than after obtaining a final judgement and writ of replevin from the court.

This process allows the creditor to obtain a writ without notice to the debtor. This option of taking possession without notice is of strategic importance in asset recovery. Because the process for obtaining a pre-judgment writ of replevin is streamlined, the Florida replevin statutes require creditors seeking a pre-judgment writ to post a bond. The purpose of the bond is to ensure that the creditor truly has the right to recovery the property in question. If the court later finds that the creditor was not entitled to the personal property, the creditor may forfeit its bond to cover any damages the debtor incurred from the wrongful taking if its property. However, creditors who truly have a right to recover their personal property can utilize the pre-judgment writ of replevin process, when circumstances allow, without fear of forfeiting their bond.

As stated previously, pre-judgment writs of replevin allow creditors to recover their property immediately, offering a major advantage over repossession.

Conclusion

Overall, replevin offers creditors a safer, quicker, and more secure method for recovery personal property wrongfully held by debtors. Although replevin has some minor drawbacks and safeguards to prevent individuals from abusing the right to replevin, the benefits of choosing replevin over repossession often outweigh the risks. Florida creditors that need to recover personal property from debtors should consult qualified legal professionals who can assist through the process of filing a replevin action, enforcing a writ of replevin, and efficiently recovering possession of the asset.