The legal profession has made a concerted effort to make its vernacular more accessible by reducing the amount of “legalese” in contracts and statutes. Charmingly though, the law retains certain outmoded terminology, which is linguistic evidence of our legal system’s historical roots. One of the most interesting things about our system of laws is that the thread of its development can be traced back centuries and, for general principles, even millennia. Hence, we still have legal nomenclature in its Latin form such as the writ of habeas corpus and the legal remedy of replevin, which sounds like justice dispensed in Elizabethan England but really just means: I want the things back that you are wrongfully withholding.
Many personal and business disputes center on the ownership of things. Personal property, as opposed to real property (or, as it is more commonly called, real estate), is the general legal term for items such as automobiles, furniture, clothes, jewelry and other stuff of that nature. Replevin is a cause of action intended to address the question of disputed ownership of personal property. A replevin claim may be filed in county court or in district court, which is the highest-level trial court in Colorado. The choice between these two courts depends on the value of the property in controversy. The jurisdictional limit in county court is $15,000 and there is no limit to the amount in dispute in district court.
As with normal cases, a replevin claim is commenced by the filing of a complaint. The replevin rules require the plaintiff to attest to specific information about the property in dispute. This information includes a description of the property, the property’s value and location, the source of the plaintiff’s claim to possession of the property and facts surrounding the defendant’s alleged unlawful detention of such property. If the court is satisfied by the contents of the complaint, then it will issue an order to the defendant requiring the defendant to show why the court should not take the disputed property from the defendant and give it to the plaintiff.
One of the chief complaints about the legal system is the great amount of time required to adjudicate claims. To a certain extent, replevin mitigates this criticism. The mechanism requires an expedited preliminary hearing within 14 days of the court’s issuance of the show cause order. There are both pros and cons to having a hearing so quickly.
A significant benefit of the initial hearing is that the parties have an early idea of how the trial court feels about the strength of the litigants’ respective cases. This allows the parties to make a more educated decision about whether to proceed all the way to trial or to attempt to resolve their dispute by settlement. Of course, the party that wins the preliminary hearing is going to be less inclined to compromise than the losing party, but because the hearing is merely preliminary, it is dangerous to be too confident in one’s position after the initial hearing. Additionally, the court has the power, but not the obligation, to enter an order giving one party possession of the property pending the final resolution of the matter. If such an order is entered, then the party taking possession must post a bond to protect against any potential loss or damage to the property. An order for possession may also be entered before a hearing if certain facts can be shown, such as the property was obtained by theft or is perishable, but this is more rare.
The downsides to an early hearing are, perhaps counterintuitively, mostly expense-related. Even though the hearing is merely preliminary and no final order will be entered, it is dangerous to treat the hearing as anything other than a trial. Failure to put on the best case possible within the time constraints can jeopardize the chances of final victory. For this reason, there are significant upfront legal fees required to properly prepare arguments, witnesses and documents. Because parties will have already invested significant money in order to get through the preliminary hearing, they may feel more committed to the cause and less likely to compromise. If a settlement cannot be reached, then the case will continue on to trial like a normal case.
In the balance, as long as the pitfalls are known and accepted in advance, a replevin claim can be a relatively efficient way to resolve a personal property dispute.
Happy holidays to all and see you in 2014!
T.J. Voboril is a partner with Thompson, Brownlee & Voboril LLC, a local civil litigation firm, and the owner-mediator at Voice of Reason Dispute Resolution. For more information, contact Voboril at 970-306-6456, firstname.lastname@example.org or visit www.thompsonbrownlee.com.