Replevin and Recovering a Specific Thing
Attachment secures a sum of money. Replevin does something different: it takes back a defined object, before trial, from someone who is holding it. The remedy is old, entirely statutory, and built around competing bonds.
The rule in short
Replevin, called claim and delivery in some states, lets a plaintiff claiming the right to possession of a specific chattel have it seized before judgment. The application must identify the goods, state the basis of the right and their value, and be supported by an undertaking. A noticed hearing on the probable validity of the claim is the default, issue without notice requires defined grounds, and the defendant may regain the goods by posting a bond.
Replevin answers a different question from attachment. Attachment asks how a money judgment will be paid; replevin asks who should hold a particular thing while the case runs. Because the object is defined, the procedure is built around identifying it, valuing it, seizing it and providing for its return if the plaintiff turns out to be wrong. Several states call the same remedy claim and delivery, and the mechanics are close enough to describe together.
What the writ is for
The plaintiff must claim a present right to possession, not merely an interest in the goods. That right typically arises from ownership, from a security agreement following default, from a lease that has ended, or from a bailment the bailee refuses to honor. A person with a right to be paid for goods, but no right to hold them, is in the wrong remedy and should be seeking attachment or an injunction instead.
The claim is possessory, which makes value a secondary question. Statutes nonetheless require the plaintiff to state a value, because every subsequent step depends on it. The undertaking is calculated from it, the defendant's redelivery bond is calculated from it, and the alternative money judgment if the goods cannot be produced is measured by it.
| Feature | New York | Florida | California |
|---|---|---|---|
| Default route | Order of seizure on notice | Order to show cause, hearing after five days | Writ of possession after noticed motion |
| Without notice | Only if the chattel would become unavailable or impaired | Prejudgment writ on specific facts showing danger | Only on the listed grounds, such as felonious taking |
| Plaintiff's security | Not less than twice the stated value | Twice the value or twice the balance owing, whichever is less | Not less than twice the defendant's interest |
| Confirmation required | Within a period set by the court, not more than five days after seizure | Defendant may move to dissolve | Defendant may apply to quash the writ |
| Defendant's route to keep the goods | Reclaim by posting security | Post bond and stay the order | Post a redelivery undertaking |
What the application must establish
New York's provision is the most explicit and serves as a model. The affidavit must clearly identify the chattel and state that the plaintiff is entitled to possession by virtue of facts set forth, that the chattel is wrongfully held by the named defendant, whether an action to recover it has been commenced and who has been served, the value of each chattel or class of chattels claimed, and that no defense to the claim is known to the plaintiff.
Two further statements are conditional. If the plaintiff wants authority for the sheriff to break open and search, it must state where the chattel is located and facts establishing probable cause to believe it is there. If the plaintiff wants an order without notice, it must state facts showing that otherwise the chattel will probably become unavailable through transfer, concealment, disposal or removal from the state, or will be substantially impaired in value.
The standard the court applies is probable validity rather than certainty. New York directs the court to grant the order on finding that the plaintiff will probably succeed on the merits and that the facts are as stated. California requires the same probable validity showing at the hearing, together with satisfaction of the undertaking requirement. The plaintiff bears the burden throughout, which matches the pattern described in the hearing owed before property is frozen.
Most of these statutes allow the court, on a motion for seizure, to enter a temporary order that the chattel not be removed, transferred, sold or encumbered. That order can issue without notice and does not require the plaintiff to take custody of anything. Where the goods are safe but might move, freezing them while the seizure application is heard achieves the object at far lower cost and risk.
The competing bonds
Security runs in both directions, which is the distinctive feature of this remedy. The plaintiff's undertaking is conditioned on returning the chattel to whoever is awarded possession by the judgment and on paying any sum awarded against the plaintiff. New York sets it at not less than twice the value stated in the affidavit. California sets it at not less than twice the value of the defendant's interest, calculated as market value less amounts owing on any security agreement and other encumbrances.
Florida's prejudgment writ requires a bond of twice the value of the goods or twice the balance remaining due and owing, whichever is less as determined by the court. The alternative measure matters commercially: where goods worth far more than the outstanding balance are being recovered, the lower figure keeps the remedy usable. Whether an undertaking can be dispensed with is narrow; California waives the plaintiff's undertaking only where the court finds the defendant has no interest in the property.
The defendant's bond is the answer to all of this. Statutes give the person from whom the goods were taken a period in which to regain possession by posting security, typically of the same order of magnitude. Florida stays the order directing issue of the writ if the defendant files a bond, and allows release of property already seized under a prejudgment writ on the same basis. The result is that the goods end up with whichever party is willing and able to secure the other.
After the seizure
Custody is held for a defined interval before delivery. New York's sheriff retains the chattel for ten days after a seizure made on notice, and until served with an order of confirmation where the seizure was made without notice, delivering it to the plaintiff only if no notice of exception to the surety, motion to impound or reclaiming papers have been served. That gap exists so that a wrongly taken chattel can be returned before it disappears into the plaintiff's hands.
Confirmation is the checkpoint for an order made without notice. New York requires the plaintiff to move for confirmation within a period the court sets, not exceeding five days after seizure, and provides that the order has no further effect and must be vacated if the motion is not made, with the chattel returned forthwith. The plaintiff bears the burden on that motion, and the routes available to the defendant are those described in the motion to dissolve a writ already issued.
Where the plaintiff was not entitled to the goods, the bond is the fund. California directs the court, on quashing a writ of possession, to order release and redelivery and to award the defendant damages proximately caused by the levy and the loss of possession. The general framework for such claims is set out in the bond and damages for a wrongful writ, and the categories of goods that cannot be taken at all appear in the property a writ cannot reach.
Points to carry away
- The remedy recovers a defined chattel rather than compensation for its loss.
- The application must identify the goods, the basis of the right and their value.
- A noticed hearing is the default; issue without notice requires defined statutory grounds.
- The plaintiff's undertaking is commonly set at twice the value or the defendant's interest.
- The defendant can usually obtain redelivery by posting a bond of its own.
Questions readers ask
How does replevin differ from a secured party taking its collateral back?
Self-help repossession is a commercial law right that operates without any court. Under the uniform commercial rules a secured party may take possession after default if it proceeds without breach of the peace, which means no court order and no bond. Replevin is the judicial alternative, used where self-help is impossible, where the peace would be breached, or where no security interest exists. The trade-off is that the judicial route is slower, costs a bond, and gives the other side a hearing.
Can the sheriff break into a building to find the goods?
Only if the order says so, and statutes require a separate showing before it will. New York requires the application to state the place where the chattel is located and facts sufficient to establish probable cause to believe it is there before the order may authorize breaking open and searching. California requires the same probable cause showing before a writ may direct entry into a private place. A general writ that does not address entry does not authorize it.
What happens if the goods have been sold on before the writ issues?
The remedy generally fails, because it operates on a specific thing. A plaintiff who cannot identify where the chattel is, or who finds it in the hands of a purchaser with a better title, is left with a damages claim against the original holder. Statutes address the risk indirectly by allowing a restraining order forbidding removal or transfer while the application is heard, which is often the more useful first step where the location is known.
Sources
- New York Civil Practice Law and Rules 7102, Seizure of chattel on behalf of plaintiffSets out the affidavit contents, the order of seizure, the undertaking and the sheriff's duties.
- Florida Statutes 78.065, Order to show cause; contentsRequires an order to show cause with a hearing set no sooner than five days after service.
- Florida Statutes 78.068, Prejudgment writ of replevinPermits seizure without a hearing on specific facts, with a bond at twice the value or balance owing.
- California Code of Civil Procedure 512.020, Writ of possession; ex parte issuanceMakes a noticed hearing the default and lists the narrow grounds for issuing a writ ex parte.
- California Code of Civil Procedure 515.010, UndertakingFixes the plaintiff's undertaking at not less than twice the value of the defendant's interest.
- Uniform Commercial Code 9-609, Secured party's right to take possession after defaultProvides the self-help alternative available to a secured party proceeding without breach of the peace.
Rapid Response Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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