When someone has your personal property and refuses to give it back, what options do you have?

You could kindly ask for it back, hire a lawyer to demand it back, start a conciliation court case, or try “self-help repossession” under the Minnesota UCC laws (if you're a secured creditor). These actions could persuade the person to give back the property, or a judge to order it returned.

But for property valued at over $15,000, a “replevin claim” is often the best legal recourse. This article will explain what “replevin” is, and why this type of lawsuit can be useful for recovering personal property.

What is “Replevin”?

“Replevin”, “replevy”, “replevin action”, and “writ of replevin” are legal words that mean a court process for recovering possession of personal property from another person. In Minnesota, it is also called an “action for claim and delivery”.

At its core, replevin means repossession. It is a way to take back your stuff. Creditors in loan collection disputes use it to take back unpaid cars, boats, equipment, machinery, livestock, business assets, or other personal property. People use it to take back their personal property, including pets. It is also used to determine the true owner of an item. Seebold v. Eustermann, 13 N.W.2d 739 (Minn. 1944). 

Replevin applies to a broad range of personal property, but it does not apply to real property (foreclosure or “execution” are similar legal theories used to recover land).

Replevin has been defined legally as “the appropriate means to recover possession of personal property—of definite things, and a means to determine the right of possession of personal property or the title thereto.” Storms v. Schneider, 802 N.W.2d 824, 827 (Minn. Ct. App. 2011) (citations omitted).

What are Alternatives to a Replevin Action?

There are a few alternatives to consider before starting civil litigation on a replevin claim.

Demand and Voluntary Return 

Asking or demanding that the person give back the property can be useful. If so, it can save a lot of time, money, and argument. If you have a contract or loan that requires a demand, you must proceed with a written demand before taking any further legal action.

Self-Help Repossession

For creditors or other persons with a security interest in personal property, they should consider a self-help repossession under Minn. Stat. § 336.9-609. This does not require a lawsuit or court involvement. A general principle of law under Stat. § 336.9-609(a) is that a secured party has the right to take possession of collateral following a default (usually failure to make payments). The secured party can try to repossess the item without judicial process “if it proceeds without breach of the peace” under Minn. Stat. § 336.9-609(b). A secured party may hire an agent to take possession of the collateral. Thompson v. First State Bank of Fertile,709 N.W.2d 307, 311 (Minn. Ct. App. 2006), review denied (Minn. Apr. 18, 2006). The agent may enter the other person's property to get the collateral if it does so without committing a breach of the peace or trespass. Id. at 312.

Practically speaking, if there is an ownership dispute or the other person is aggressive and combative, a self-help repossession will not work. A civil lawsuit is needed.

Conciliation Court

For property under $15,000, a person could try to recover the personal property through conciliation court. This is typically a quick process (often 45 days or so), but the losing party has a right to appeal the decision into district court (which vacates the conciliation court decision). Also, it may be difficult for a creditor in conciliation court to recover the full amount of its attorney's fees.

Here is what the conciliation court statute at Minn. Stat. § 491A.01 says about personal property:

Subd. 5. Jurisdiction; personal property. If the controversy concerns the ownership or possession of personal property the value of which does not exceed the jurisdictional limit under subdivision 3, the conciliation court has jurisdiction to determine the ownership and possession of the property and direct any party to deliver the property to another party. Notwithstanding any other law to the contrary, once the judgment of the court directing return of the property becomes final, it is enforceable by the sheriff of the county in which the property is located without further legal process. The sheriff is authorized to effect repossession of the property according to law, including, but not limited to: (1) entry upon the premises for the purposes of demanding the property and ascertaining whether the property is present and taking possession of it; and (2) causing the building or enclosure where the property is located to be broken open and the property taken out of the building and if necessary to that end, the sheriff may call the power of the county to the sheriff's aid. If the party against whom the judgment is directed is not physically present at the time of entry by the sheriff, then a copy of the judgment must be served upon any person in possession of the property or if no person is present, a copy of the judgment must be left on the premises. After taking possession of the property, the sheriff shall turn the property over to the prevailing party.

As you can see, a small claims court referee or judge can order the return of personal property, with assistance from the sheriff.  

Titled Property

If the disputed property has a certificate of title through the State of Minnesota, there may be specialized processes for obtaining a “forced title” through administrative or judicial means. See Ch. 168A of Minnesota Statutes.

Attachment

“Pre-judgment attachment” is a way for a plaintiff to seize personal property of the defendant, and to hold it for purposes of satisfying a judgment that the plaintiff seeks in the case. This is different than replevin because with attachment the plaintiff has no present right of ownership or possession of the item (with replevin, the Claimant has a right to own or possess). Once attached, the plaintiff simply holds the item for liquidation purposes once he or she gets a judgment in that case. Attachments are governed by Ch. 570 of Minnesota Statutes.

Other Civil Claims

Replevin is typically seen as the method to physically recover the personal property. However, a plaintiff can sometimes get a money judgment in a replevin case.

If the person does not care about recovering the actual property, there are other claims that could give the person a money judgment (breach of contract, unjust enrichment, and conversion/civil theft). The person could also try for a temporary restraining order or injunction to limit the other person's activity on the item.

What is the Basic Procedure for a Replevin Action?

Replevin is governed by Ch. 565 of Minnesota Statutes. A replevin action is a civil lawsuit brought in district court, so the Rules of Civil Procedure apply. In a sense, it proceeds like any other civil claim. However, a replevin case can be unique because the plaintiff/claimant can ask the court for immediate or temporary possession of the property (until a final decision can be made).

Commencement

A replevin action starts with the “Claimant” (the plaintiff) serving a Complaint on the “Respondent” (the defendant). The Respondent will have to serve an Answer to the replevin claim and any other claims made by the Claimant.

Strategy Decisions

The Claimant will then have some strategy decisions to make. Replevin cases are sometimes simpler and take less time than ordinary civil litigation in Minnesota (where it often takes 6-12+ months to litigate – see here for typical timeline). However, it still will likely take 3+ months.

The Claimant will have to decide:

• whether the Respondent will destroy or conceal the property;
• whether it needs immediate or a temporary possession of the property;
• whether it needs protections from a judge to ensure that the property is temporarily kept safe and secure;
• whether to spend the money on a bond, if a judge lets it take immediate or temporary possession of the property;
• whether other creditors or persons (i.e., good-faith purchasers) must be added to the case.

Litigation

Motions for immediate or temporary possession are discussed in separate sections below. If the claimant does not wish to pursue any of these motions, the case will proceed like any other civil lawsuit (i.e., discovery, mediation, trial). However, either party can ask the judge to advance the trial date. See Minn. Stat. § 565.29 (“A motion for advancement on the calendar or for a date certain for final hearing on the merits may be presented at any time and may be combined with any other motion and the court may advance the case or set a date certain as the ends of justice require.”).

Liens and Other Ownership Claims

Note that some cases involve complicated lien priority disputes between creditors. The court will have to decide which creditor's lien has priority.

Other cases may involve ownership claims by people who are not creditors but claim an interest in the property (i.e., good faith purchasers). Courts have said that the gist of a replevin action is to determine title and right of possession of an item. A & A Credit Co. v. Berquist, 230 Minn. 303, 305-06, 41 N.W.2d 582, 584 (1950). A person in peaceful possession of personal property is presumed to be the owner of that property. Anderson v. Gouldberg, 51 Minn. 294, 296, 53 N.W. 636, 637 (1892). And a person who takes property from the peaceful possession of another can only rebut the presumption if he can establish that he has superior title. Id. A court may have to decide fact questions about whether third persons have ownership interests in the property over the Claimant and the Respondent.

When the case involves a conditional sales contract where the Respondent is an innocent purchaser without actual knowledge of the contract, the Claimant can seek “the balance unpaid on the conditional sale contract with interest thereon at the rate fixed in the conditional sale contract, if any, reasonable attorney's fees to be approved by the court and the costs and disbursements of the action.” Minn. Stat. § 548.04.

Getting an Immediate, “Pre-hearing” Seizure of the Property.

Say that the Claimant thinks that the Respondent will conceal or destroy the property. The Claimant can make a motion to the court for a “pre-hearing” seizure to immediately take control of the property.

Basis for Pre-hearing Seizure

Minn. Stat. § 565.24 allows a Claimant to immediately seize the property before any court hearing or formal notice to the Respondent. The Claimant must file an affidavit that contains these basic requirements under Minn. Stat. § 565.23, subd. 1:

(a) the particular property sought to be recovered by the claimant;

(b) the facts giving rise to claimant's right to possession, referring to the documents, if any, evidencing the claimant's right to possession and the underlying obligation supporting the right;

(c) the facts showing that respondent is wrongfully detaining the property;

(d) if the property being claimed is security for an obligation, the date and the amount of the original obligation, the amount which has been paid by respondent and the amount now owing to claimant;

(e) if the claimant asserts that the respondent is wrongfully detaining the property by reason of a breach of contractual duty other than the failure to pay money, the claimant shall state the specific contractual provision and the facts relating thereto; and

(f) a good faith approximation of the current market value of each item of property being claimed. Where the property is inventory, accounts receivable or other property where separate valuation is not practicable, claimant may provide a good faith approximation of the current market value of each category of property.

Additionally, the Claimant's affidavit must include the following information under Minn. Stat. § 565.24, subd. 2 that will justify the immediate seizure:

(1) a good faith effort has been made to inform respondent of the motion for a prehearing seizure or that so informing respondent would endanger the ability of the claimant to recover the property;

(2) claimant has demonstrated the probability of success on the merits entitling the claimant to possession of the property; and

(3)(i) respondent is about to remove the property in question from the state with the intent to hinder, delay or defraud the claimant;

(ii) respondent is about to conceal, damage or dispose of the property with intent to hinder, delay or defraud the claimant; or

(iii) due to other circumstances, which must be specified in the court's order, the claimant will suffer irreparable harm if possession of the property is not obtained prior to a hearing; and

(4) claimant's interest in the property cannot be protected, pending a hearing pursuant to section 565.23 by an appropriate order of the court other than directing seizure.

As you can see, the Claimant must do its homework to assemble the facts necessary for an immediate seizure. The Claimant has the burden to show each of these requirements to the judge. The immediate, pre-hearing seizure is meant for unique situations, so the Claimant should understand this before spending the time and money to make the motion.

Protective Order

If the court makes findings under Minn. Stat. § 565.23, subd. 2(1)-(3) that could justify an immediate seizure, the court can choose not to order the seizure. Instead, the court can issue a “Protective Order” that protects the property until a hearing can be held (i.e., no moving, concealing, using the property). Doing this could allow the Respondent to keep possession of the item but give the Claimant some protection without having to pay for a bond.

Hearing

If the court issues a seizure or protective order, it must hold a hearing at “the earliest practical time” and allow the Respondent to be heard. At the hearing, the court should consider various criteria, such as a comparison of harms between the parties, the Respondent's defenses, the need for a bond, and need for a protective order. Also, “if the court finds that the [Claimant's] motion for a prehearing seizure was made in bad faith the court may, in its discretion, award Respondent the actual damages incurred by reason of seizure of the property.” Minn. Stat. § 565.24, subd. 5.

While the court can rely on the affidavits, the court can also swear in the parties and take testimony on the seizure issues.  

Notice of Order to Respondent

If the court makes a prehearing seizure order or other order under Minn. Stat. § 565.24, the Respondent must be personally served with the order and notice of a hearing (or be served by a similar procedure as allowed by the court).

Minn. Stat. § 565.24, subd. 6 provides the basic format for the order:

"NOTICE OF HEARING

Court action has been taken which affects the following property:

[list property]

[Claimant] (hereinafter "claimant") has claimed that claimant is entitled to this property and that claimant's interest in this property would have been harmed unless this court took immediate action.

You have a right to challenge claimant's claims at a hearing before a judge. This hearing has been scheduled for the ........ day of ..........., .........., at .......... o'clock ..M., at [place] ...........................

After this hearing the judge will decide, what should be done with the property pending a final decision on claimant's claim."

Usually, the court asks the Claimant or the Claimant's attorney to submit a proposed order for the judge to sign.

Hearing & Give-Back

If there is a pre-hearing seizure and the court decides to give property back to the Respondent, Minn. Stat. § 565.25, subd. 2(b) says that the Claimant must bear the costs. The court can order the Claimant's bond “to continue in an amount sufficient to offset damages claimed by respondent by reason of the seizure.”

Basically, this shows that there is a risk for a Claimant. If it gets an immediate seizure but then must give the property back, the Claimant could be liable for some “loss-of-use” damages (which the court could order to be paid out of the bond).

Overall, the pre-hearing seizure can be an important remedy for a creditor that is concerned about the security of the property. It is also a chance to get early intervention from a judge, and that ruling may indicate what the judge might ultimately do in the case. But as explained above, there is potential risk to the Claimant if the seizure was not fully justified.

Getting a Temporary, Post-Hearing Seizure of the Property.

Sometimes, a more practical strategy for a Claimant who wants control of the property is to get a temporary, “post-hearing” seizure. A Claimant might do this when he or she lacks enough facts to get a pre-hearing seizure (i.e., no imminent destruction, concealment, or harm to the property).

If the motion is granted, the Claimant gets possession or protection of the property until a final decision in the case. The process is similar to the pre-hearing seizure process. However, the Claimant here only needs to submit an affidavit under Minn. Stat. § 565.23, subd. 1 showing:

(a) the particular property sought to be recovered by the claimant;

(b) the facts giving rise to claimant's right to possession, referring to the documents, if any, evidencing the claimant's right to possession and the underlying obligation supporting the right;

(c) the facts showing that respondent is wrongfully detaining the property;

(d) if the property being claimed is security for an obligation, the date and the amount of the original obligation, the amount which has been paid by respondent and the amount now owing to claimant;

(e) if the claimant asserts that the respondent is wrongfully detaining the property by reason of a breach of contractual duty other than the failure to pay money, the claimant shall state the specific contractual provision and the facts relating thereto; and

(f) a good faith approximation of the current market value of each item of property being claimed. Where the property is inventory, accounts receivable or other property where separate valuation is not practicable, claimant may provide a good faith approximation of the current market value of each category of property.

As was the case with the pre-hearing seizure, the Respondent gets notice of the motion and the hearing. At the hearing, the court considers whether to give the Claimant possession of the property pending a final decision.

• Win: If the Claimant shows a probability of success on its replevin claim, the court can set a bond amount and transfer possession to the Claimant. Alternatively, the court can issue a protection order under Minn. Stat. § 565. 23, subd. 4. Protections may include partial payment of any debt to the Claimant, a bond posted by the Respondent, inspections for the Claimant to see the property, and restraints on the Respondent's use of the property (no selling, disposing, encumbering, or similar activity).

• Lose: On the other hand, the court could deny the motion. The court cannot transfer possession to the Claimant if (a) the Respondent has a potential defense on the merits, (b) the Respondent's interests cannot be adequately protected by a bond, and (c) the harm to Respondent would be substantially greater than the Claimant's harm if the property was transferred.

Will a Replevin Bond Be Required for an Immediate or Temporary Seizure?

Yes, the court will probably order one of the parties to post a bond. This means that the party will have to find a bonding company or insurance company, pay for the premium (perhaps 10% or more of the bond total) or pledge assets, and then promptly file the bond certificate with the court.

Here are the basic outcomes:

• If the Claimant gets possession, it must post the bond (or “cash, a cashier's check, or a certified check” with the court under Minn. Stat. 565.25, subd. 4).
• If the Respondent keeps possession but there are concerns about security, the Respondent likely must post a bond and could be subject to a protective order.
• If there is no basis for an immediate seizure, the Respondent keeps the property and there is no bond or protective order.

Practically speaking, the parties must closely assess their options before taking a position on an immediate or temporary seizure. If the property is valuable, then the parties may be incurring a relatively high cost for a bond (at least compared to the limited time in which the case will be litigated – 3-12 months). Also, it can be useful for the parties to negotiate a temporary arrangement for the property so that they don't have to incur the expense of motions and a bond.

Claimant's Bond

If the Claimant is allowed to seize the property pending a final decision in the case, the Claimant generally must file the bond. This provides security for the Respondent in case the Claimant destroys the property. It also protects against the Respondent's lack of use of the property for income purposes. If the Claimant destroys the property, the bonding company will have to pay an amount ordered by the court.

The amount of the bond is 1.5 times the “fair market value of the property.” Minn. Stat. § 565.25, subd. 1 states:

An order for seizure of property from the respondent shall provide that the seizure shall be contingent upon claimant's filing of a bond approved by the court conditioned for the return of the property to the respondent, if a return be adjudged, and for the payment to the respondent of any sum adjudged against the claimant. The bond shall be in an amount which is 1-1/2 times the fair market value of the property seized.

What is the fair market value? The parties must estimate the value in their motion affidavits. The Claimant must develop some basis for the estimate. Creditors usually have the purchase price and depreciation data. The Claimant generally argues for a lower bond amount. Under Minn. Stat. § 565.25, subd. 3, the Claimant's estimate “shall initially be presumed as stated in the affidavit”, but the court shall adjust the amount if it “determines the current fair market value of the property is different.”  

The Respondent can also weigh in on the value in his or her affidavit, and will argue for a higher bond amount.

Respondent's Bond

If the judge lets the Respondent keep the property until a final decision but the Claimant has valid concerns about whether the property is secure, the Respondent may have to post a bond. Under Minn. Stat. § 565.25, the amount of the bond is either 1.25 times the fair market value or 1.5 times the amount of the Claimant's claim (whichever is less).

Basically, the Respondent is paying for temporary possession of the property, regardless of whether the Respondent ultimately wins the case. If the property is necessary to producing income, then the Respondent will want to keep possession of it.

On the other hand, if the property is not used for producing income, or if the Claimant has a strong claim, the Respondent will have a tough decision. It might not make sense to post the bond in those situations.

Note that if the Respondent cannot post the bond or declines to do so, then the Claimant will get temporary possession of the property (although the Claimant may then have to post its own bond).  

No Bond Ordered

In some situations, the judge lets the Respondent keep the property without a bond (and can “stay” the action for up to 6 months). This might happen when the Respondent relies on the property for income.

A judge can let the Respondent keep the property without a bond under Minn. Stat. § 565.251 if:

 (1) the respondent is unable to make the required payments due to unforeseen economic circumstances beyond the respondent's control;

(2) the respondent is dependent on the use of the property to earn a living;

(3) the respondent insures the property for its fair market value;

(4) the respondent makes periodic payments to the claimant representing the depreciation in market value of the property while the respondent retains possession, in an amount and during the times determined by the court; and

(5) the respondent makes periodic payments to the claimant representing the value of the use of the property or the cost to the claimant of the lost opportunity to use the property, in an amount and during the times determined by the court.

The Respondent must meet each of these requirements. As the statute indicates, the court can set payments that the Respondent would have to make to the Claimant.

Can I Get Money Damages in a Replevin Case?

Yes, a party can potentially get money damages in a replevin case.

However, the court should return the physical property whenever possible. Widgren v. Massie, 352 N.W.2d 420, 425-26 (Minn. Ct. App. 1984). If possession cannot be returned to the Claimant, the value of the property and harmed suffered by the detention can be claimed. See Minn. Stat. § 548.04 (“When the prevailing party is in possession of the property, the value thereof shall not be included in the judgment.”).

Also, Minn. Stat. § 546.23 provides for a Claimant or a Respondent to obtain money damages in a replevin action if possession cannot be returned:

“[T]he jury shall assess the value of the property and the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention, or taking and withholding, of such property.”

Likewise, Minn. Stat. § 548.04 provides that a replevin judgment “may be for the possession [of the personal property] or the value thereof in case possession cannot be obtained, and damages for the detention, or the taking and withholding.” If possession of only a portion of the property may be obtained, a party may take possession of that portion and recover money damages for the value of the remainder of the property. 

Can the Parties Recover Costs and Attorney's Fees in a Replevin Action?

Maybe. A prevailing party can almost always recover the court costs in a civil lawsuit (filing fees, sheriff fees, etc.), but can only recover attorney's fees if there is a statute or contract allowing it.

The replevin statute does not specifically provide for a party to recover attorney's fees, except for situations involving a conditional sales contract and third-party ownership issue under Minn. Stat. § 548.04.

The key question is whether the parties have a contract that provides for the Claimant to recover its attorney's fees. Many replevins involve loan collateral that the creditor is trying to take back after a borrower defaults on a loan. Most loan documents (promissory note and security agreement) provide for the creditor to recover its collection costs and attorney's fees. If the Claimant has such a clause in the loan or contract, it can recover its costs and attorney's fees.

If there is no clause in the loan or contract for attorney's fees, the creditor cannot recover its attorney's fees. It can only recover its court costs and disbursements. Where claimants cannot recover their attorney's fees, they will have to decide whether a replevin is worth it. Most of the time, replevins involve higher value property that justifies the case costs.

If the property is not valuable and there is no way for a Claimant to recover attorney's fees, then the case should either be in conciliation court or the Claimant's attorney must do his or her best to keep the litigation costs down.

What Other Issues Arise in Replevin Actions?

A replevin action is a civil lawsuit, so many issues can arise during the litigation. Here are a few other issues to consider:

• Agricultural Property: When the replevin action involves farm litigation or agricultural property (tractors, livestock, farm machinery, etc.), the Claimant will likely need to go through Farmer Lender Mediation under Chapter 583 of Minnesota Statutes before starting the replevin action.

• Undivided Shares: It can be difficult for a court to award relief when the Claimant seeks possession of an item that cannot be divided. If there is such an issue, the Claimant may have to consider other claims to add to the Complaint in the case.

• Good-faith Purchasers: As mentioned above, there can be tricky questions when the Claimant has an interest in an item but the Respondent has sold it to a good-faith purchaser (a person with no knowledge of the Claimant's ownership rights). The parties may have to litigate their ownership claims and have the judge determine their rights. Note that the good-faith purchaser may receive some protection under various laws, such as Minn. Stat. § 336.2-403 in the UCC (Uniform Commercial Code).

• Contempt: The judge may issue orders for transfer of the personal property or protection of it. If a party fails to follow the judge's order, the court could order release of the bond to the opposing party but can also hold the party in contempt of court under Ch. 588 of Minnesota Statutes.

Conclusion

Replevin can be a useful remedy for a creditor or person trying to recover an item. However, the item must have enough value in order to justify the litigation costs of a replevin claim (or a replevin bond).

Because both parties have risk in a replevin claim, they must understand the process and present compelling cases to the judge. Often, this means having an attorney handle the case. If the parties are not organized or aware of weaknesses in their claim, they may lose the item and may be out any litigation costs.

If you need legal advice or representation for a replevin issue with personal property, Contact Us for a free consultation. With offices in Shakopee (Scott County) and Litchfield (Meeker County), we serve clients throughout the Twin Cities and Greater Minnesota.