Seeking replevin is common and used by debt collection lawyers to recover goods or collateral for their clients. Replevin is available to a party seeking the return of goods pursuant to a court order directing a party to return the goods or collateral to you.
An application for replevin relies on New York’s Uniform Commercial Code (UCC), which permits a “secured party “ to take possession of goods sold or collateral pledged as part of a transaction.
When most people think of taking back goods or other collateral, they think of the “repo man” breaking in and repossessing a vehicle in the dead of night without a court order or sheriff tagging along.
The method by which a secured party can pick up goods or collateral depends on whether they can be picked up without a “breach of the peace.”
If you have a “perfected” security interest in the goods and you can take them back without doing something unlawful, you can go ahead and take the collateral back. That’s how the repo man is able to repossess a car in the dead of night, assuming the vehicle is not in the borrower’s garage or on their personal property since trespassing on someone’s property would “breach the peace.”
Similarly, if a creditor has financed the inventory of parts or other goods that are kept under lock and key, the creditor would need to break in and enter or gain access to otherwise secured premises to regain the goods. Clearly, the creditor would not be able to go ahead and take the goods back without violating the peace. They would need to make an application to the court for an order of replevin.
How Do You Obtain an Order of Replevin?
Article 71 of The New York Civil Practice Law and Rules makes it easy for a creditor with a perfected security interest to obtain an order of replevin. The documents supporting an application for replevin, paperwork should include the following and more:
- A proposed order of replevin: A form order for the court to sign, requiring the party possessing the goods to make the goods available for the creditor to take back at a specific location and time.
- Supporting affidavits and attorneys’ affirmation: The supporting affidavit to be completed by the secured party must illustrate that the underlying transaction exists.
- Annexing evidence: The underlying agreement that the parties entered into a security agreement for the goods or other collateral. And that the goods were pledged as collateral and that the party seeking an order of replevin has a “perfected” security interest having filed in the appropriate office. Copies of the stamped filings should be attached.
You should also be able to show that the borrower defaulted in payment and calculations, and substantiate the balance owed. As well as show that the demand and notice of default were sent and the debtor failed to cure the default in payment. You can also provide the location of the goods and collateral if known, and any evidence that the debtor or another named party is in possession of the goods or collateral.
If done correctly, an application for replevin would seek a money judgment and request that the court grant possession to the party seeking the order of replevin. This would require the debtor to deliver the item(s) to the secured party. If not done within a short time frame, it would allow the secured party together with the sheriff to break open, enter, and search for the goods or collateral.
Looking to get your goods back? Contact Frank, Frank, Goldstein and Nager to learn more about your options.
