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Repossessions: 5.3.1.3 Unreasonable Search and Seizure

Fuentes, Mitchell, and Di-Chem were decided only on due process grounds, but writ of replevin procedures must also comply with Fourth Amendment search and seizure standards.91 The writ of replevin authorizes the sheriff to search the debtor’s property, use force if necessary, and seize property in the debtor’s possession.92

Repossessions: 5.3.1.4 State Constitutional Provisions

The search and seizure96 and due process97 provisions of some state constitutions have been read more expansively than the United States Supreme Court’s current interpretations of the Fourth and Fourteenth Amendments. One can argue that such provisions, or state provisions for rights without federal counterparts,98 forbid the issuance of ex parte writs of replevin.99

Repossessions: 5.3.2.1 Generally

Creditors prefer to apply for writs of replevin ex parte when possible. Ex parte hearings minimize the creditor’s paperwork, expedite the process, and give the creditor significant leverage over the debtor by seizing the collateral before the debtor can raise defenses. But ex parte hearings must meet strict constitutional and statutory guidelines, and a debtor can challenge the writ whenever the creditor is lax in its compliance with necessary procedures.

Repossessions: 5.3.2.2 Does State Authorize Ex Parte Writs?

Creditors can obtain writs of replevin ex parte only if authorized by a particular state statute or rule.100 Not all states authorize this procedure. For example, Massachusetts allows replevin actions, but does not authorize immediate possession upon posting of a bond.101

Repossessions: 5.3.2.3 Challenging the Constitutionality of Writ of Replevin Procedures

Because states have generally redrafted their writ of replevin procedures or adopted court rules to meet constitutional standards, a challenge to a state’s current procedures as unconstitutional on their face is not likely to succeed.105 In that case, the debtor’s attorney should concentrate on determining whether the creditor’s application for the ex parte writ strictly followed those procedures in all respects.106

Repossessions: 5.3.2.4 Stated Grounds for Seeking Writ Ex Parte

Most state replevin statutes limit the creditor’s ability to obtain a writ ex parte to specified situations, such as when the creditor can establish that the debtor is likely to conceal, destroy, remove from the state, or fraudulently transfer the collateral.110 Several states require a showing of “immediate” or even “irreparable” harm.111 Kansas requires a pre-seizure hearing unless possession by the plaintiff is “directly necessary to secure an important governmental or general public

Repossessions: 5.3.2.5 The Affidavit and Complaint

For an ex parte writ to meet due process standards, the creditor must file an affidavit justifying the creditor’s superior right to the collateral.119 Someone with actual knowledge of the allegations must swear to the affidavit,120 and the affidavit must indicate specific facts readily susceptible to proof without an adversary proceeding.121 An affidavit containing only conclusory allegations by one not having personal knowledge of the fac

Repossessions: 5.3.2.6 Judicial Supervision of the Writ

A judge and not just a clerk must review the ex parte application and sign the writ. Mitchell and Di-Chem indicate that an ex parte hearing before a clerk does not satisfy due process.137 A judge must both review the creditor’s affidavit and issue the writ.138

Repossessions: 5.3.2.7 The Post-Seizure Hearing

Debtors have a due process right to an immediate hearing after their property has been seized pursuant to an ex parte writ.141 The procedural requirements for this hearing, and the defenses that can be raised at the hearing, are discussed in § 5.3.3, infra.

Repossessions: 5.3.2.8 Debtor’s Consent to the Seizure

Creditors may defend against a debtor’s due process challenge by pointing to a provision in the credit agreement whereby the debtor consents to the creditor’s repossession of the collateral. Courts should reject this defense for several reasons.142 First, the contract provision is unlikely to specify that the debtor consents to the sheriff’s seizure of the collateral. It will likely refer only to the creditor’s repossession.

Repossessions: 5.3.2.9.2 Remedies based on violation of state law

Even when a due process violation has not been proven, the debtor can still prevail on a state law claim for violation of the writ of replevin procedure.153 In some states the replevin statute specifies the remedies available to a person whose property was sought in violation of proper procedure.

Repossessions: 5.3.3.1 Generally

The previous section discussed challenges to ex parte writs of replevin. But writs of replevin are not always issued ex parte; sometimes there is a hearing before the writ is issued. There are a variety of substantive and procedural defenses that the debtor may be able to present at this hearing. These defenses are also available if a writ of replevin is issued ex parte and then a hearing is held immediately after the seizure. The following subsections examine these potential defenses.

Repossessions: 5.3.3.3 The Court’s Jurisdiction to Issue Writ

A writ can be properly issued only if the creditor applies to a court that has both jurisdiction and proper venue to seize the debtor’s property. Some courts can only issue writs covering property in the same county as the court. Other states may allow suit to be brought in the county where the defendant is located, or does business, or where the contract was made.165 Under the Wisconsin Consumer Act, venue is jurisdictional.

Repossessions: 5.3.3.4 Has a Complaint Been Filed?

State replevin procedures may require the creditor to file an adequate complaint in the replevin action and arrange for the debtor to receive a proper summons before the court will issue a writ of replevin.

Repossessions: 5.3.3.5 The Creditor’s Burden of Proof

At the hearing on the writ of replevin, the creditor has the burden of showing its superior right to the collateral and the likelihood that it will prevail on the merits.174 Although the hearing on the writ of replevin is not the same as the trial on the merits,175 the creditor must demonstrate at least the probable validity of its claim.176 Connecticut has defined “civil probable cause,” sufficient for prejudgment remedies, as “a bona fide belief

Repossessions: 6.4.6.1 Generally

In considering whether a creditor’s trespass on the debtor’s property is a breach of the peace, courts have looked at two factors: the potential for immediate violence and the nature of the property.291 Thus, trespass into a residence will almost certainly constitute a breach of the peace, while circumstances will determine if entry on an open driveway breaches the peace.292 Entry on the property of a non-debtor to take possession of collateral is likely to be a trespass unless the property owne

Repossessions: 6.4.6.3 Residence

The courts discourage any unauthorized entry by the creditor into the debtor’s residence. Breaking and entering and other criminal law notions serve as strict standards in defining breach of the peace. The courts wish to protect the sanctity of the debtor’s home and discourage acts that may incite retaliatory violence.311 Any entry gained by breaking into a debtor’s residence, even during the debtor’s absence, is a breach of the peace.312

Repossessions: 6.4.6.4 Place of Business or Employment

Unauthorized entrance into a place of business operated by the debtor may be a breach of the peace under the same rules as apply to residences.321 On the other hand, entering a place of employment that is generally open to the public is not a trespass.322 But repossessing a postal employee’s vehicle from a U.S.

Repossessions: 6.4.7 Use of a Police Officer; Impersonation

If a police officer or other government official was present or assisted in the repossession and the taking was not pursuant to a writ of replevin, it may be sufficient state action to trigger due process standards.325 Not only can the government official be liable for the due process violation, but also the private repossessor can be liable where there is a joint engagement between the two, or where the private repossessor obtained significant aid from the government official, in what was essentially a joint ventu