Pre-judgment writs of replevin allow a creditor to regain possession of any property wrongfully held by another. Florida Statutes §78.069(3) provides the procedure and requires that the creditor post a bond prior to having the writ issued to protect the debtor in the event the property is wrongfully taken. This statute is extremely useful because it allows the creditor to pick up the property through the sheriff without serving the debtor first with the complaint so the debtor has no time to conceal the property.
I mostly use this statute on behalf of vehicle finance companies who are unable to repossess a vehicle that has been concealed. As a result, we filed the requisite pleadings/motions, request a break order and post the bond to have the writ of replevin issued. The break order allows the sheriff to enter into any locked area, such as a garage, to regain possession of the automobile.
Last week, I had 2 pre-judgment writs of replevin for 2 different clients executed on by the sheriff. One was for equipment taken by the previous business owner to a new location. he lost his business when we seized his stock toward satisfaction of a judgment against him. My client, along with the sheriff, entered the premises of the new business and took possession of the machines and equipment.
The second replevin was for a piece of equipment that was leased by my client to a debtor who defaulted in payment and then sold that same equipment to a third-party. I first sued the debtor for replevin (not pre-judgment) and damages. The debtor testified in deposition and to the court that he did not recall to whom he sold the equipment and had no records because it was a cash sale. We were unable to locate the equipment until my client received a tip that the equipment was seen in another store. I then filed a second action against the suspected buyer and obtained a pre-judgment writ of replevin. The sheriff successfully assisted in regaining possession of the equipment.
The interesting part of this second case was that the buyer in an effort to prove ownership to the sheriff stated that she paid by cashier's check and received an invoice from the debtor for the sale. Fortunately, my client had filed a UCC lien so there was public record that the property belonged to my client. Therefore, the third-party buyer should have been on notice that the equipment actually belonged to my client before purchasing same. However, now we know that the debtor was not truthful in his testimony which may be helpful considering there is a second piece of equipment still missing.