If you are a creditor that financed the purchase of personal property
such as a mobile home or automobile and retained a security interest
in the property as collateral, what remedies are available to you
when the debtor defaults on his or her repayment obligation and
won't voluntarily relinquish possession of the collateral? Will
you be able to repossess the collateral, and how will you do it?
Look to Martin & Seibert, L.C. We are a full-service law firm and
can handle all of your collection needs, including repossessions
of secured collateral.
Fortunately, West Virginia law provides relief for a creditor caught
in just this type of predicament. A Detinue action may be filed
either alone or along with an action requesting a money judgment.
Once a Detinue action is filed, a prejudgment hearing is quickly
set by the Court. At the prejudgment hearing, the Court conducts
a broad inquiry into the nature of the right of the Plaintiff to
immediate possession and of the Defendant, if any, to keep possession
of the property. During this inquiry, the Plaintiff must satisfy
the Court that it has a property interest in the property at issue,
it has a right to immediate possession, that the property is of
some value and that the Defendant had possession of the property
at some point prior to suit.
If the Court concludes that there is a substantial probability
that the Plaintiff will prevail on the merits at trial, the Court
may order the posting of an indemnity bond by the Plaintiff for
the benefit of a designated officer, usually the sheriff, and order
that the property at issue be seized by that officer. If the Defendant
executes an indemnity bond for the benefit of the Plaintiff, he
or she can redeem the property from the officer's custody. If the
Defendant does not take any action within three days of the repossession
by the Court's officer, the officer is required to turn the property
over to the possession of the Plaintiff.
The Court will schedule a final hearing for some point in the future.
At this final hearing, a trial on the merits of the issue will be
heard, and a verdict will be rendered by the judge or jury just
as in an ordinary civil action. If the Defendant prevails, the bond
posted by the Plaintiff will be used to compensate the Defendant
for the wrongful taking of his property. If the Plaintiff prevails
and had possession of the property, the issue is closed. If the
Plaintiff prevails and the Defendant had redeemed the property by
its own indemnity bond, the Plaintiff will be compensated for any
losses it suffered as a result of the Defendant's wrongful possession
of the collateral.