Florida’s Prejudgment Writ of Replevin
Replevin is a legal procedure to obtain recovery of property, and under Florida law there are two types of replevin. One type is the ordinary replevin action, providing for recovery of personal property after trial on the merits and entry of final judgment. The other type is the prejudgment writ of replevin, which is a summary procedure allowing ex parte recovery of the property. Its purpose is to protect the petitioner against various risks, such as destruction or concealment of the subject property or removal from the jurisdiction of the court. This article briefly discusses the prejudgment writ of replevin.
Under section 78.068, Florida Statutes, a prejudgment writ of replevin may be issued and the property seized when the nature, amount, and grounds of the claim “clearly appear” from specific facts in a sworn statement by the “petitioner,” i.e., the party who wants to get possession of the property. The court must also find, based on the petition, that the defendant is “engaging in, or about to engage in, conduct that may place the claimed property in danger of destruction, concealment, waste, removal from the state, removal from the jurisdiction of the court, or transfer to an innocent purchaser during the pendency of the action or that the defendant has failed to make payment as agreed.” The petitioner must post a bond in the amount of twice the value of the goods subject to the writ or twice the balance due and owing, whichever is less as determined by the Judge. The purpose of the bond is to serve as security for the payment of damages the defendant may sustain when the writ is wrongfully obtained. The defendant, however, has two main statutory protections.
One way that the defendant can obtain release of the property is by posting a bond within 5 days after being served with the writ. The amount of the bond must be 1 ¼ the amount due and owing on the agreement for the satisfaction of any judgment which may be rendered against the defendant. Alternatively, a second way to obtain release of the property is by filing a motion to dissolve the prejudgment writ of replevin. The defendant must file the motion within 10 days after service of the writ and the Judge is required to set the motion for an immediate evidentiary hearing. The burden of proof is on the petitioner, not the defendant, to prove the grounds upon which the writ was issued by “competent and substantial evidence.” See, for example, Kalman v. World Omni Financial Corporation, 651 So.2d 1249, 1252 (Fla. 4th DCA 1995) (appellate court dissolved writ of replevin allowing seizure of automobile where petitioner did not meet its burden at the hearing on defendant’s motion to dissolve writ).
By way of example, defendants can successfully challenge prejudgment writs of replevin where the sworn statement the petitioner submitted is merely based on “information and belief,” instead of the required first-hand personal knowledge, where the underlying contractual documents do not clearly demonstrate the petitioner’s entitlement to the property, where the subject property cannot be clearly identified to establish the possessory interest, or where the petitioner has waived its right to timely payment if the writ was issued based on failure to make payment as agreed. A careful petitioner or defendant should consider and anticipate such challenges.
