A Company Took Or Is Keeping Items That Belong To Me. Through A Writ Of Replevin, How Can I Get These Items Back?
What Is Replevin? What Are The Elements Of A Replevin Claim?
Replevin is the type of civil action used to recover possession of personal property which has been unlawfully taken and kept or lawfully taken and unlawfully kept. The plaintiff may also be entitled to monetary damages. Replevin cases are properly brought in the New Jersey Superior Court’s Law Division.
In New Jersey, replevin is governed by Chapter 50 of Title 2B of the New Jersey Statutes (“the Replevin Statute”). The Replevin Statute provides, “A person seeking recovery of goods wrongly held by another may bring an action for replevin . . . .”
In a replevin action, the plaintiff (that is, the person who is suing) bears the burden to establish ownership, absolute or qualified, with the right to exclusive possession at the time of bringing the replevin action. The failure to do so entitles the defendant to judgment.
To maintain replevin, the plaintiff must have the right of exclusive possession to the goods in question. The plaintiff must not only have property absolute or qualified, and the right of possession at the time of the commencement of the action, but he or she must have the exclusive right of possession.
Moreover, to maintain an action for replevin against the person or an entity, the plaintiff must demonstrate, through admissible proof, that before filing the action, the plaintiff made proper demand of the defendant for the materials that the plaintiff’s replevin action seeks.
A claim for replevin also exists even though the defendant is no longer in possession of the involved, personal property.
Procedure For Obtaining, In Court, A Writ Of Replevin
The filing of a complaint begins a replevin action. As in other civil actions, the defendant is brought into Court by the service of the summons and the complaint. If the plaintiff establishes the cause of action, the Court must enter an Order granting possession.
Causes of action of different kinds may be included in the replevin action. The defendant may bring a counterclaim based on a demand not related to the possession of goods. Replevin may be utilized as a counterclaim, a cross-claim, or a third-party claim.
In New Jersey, replevin actions must be filed within six years after they accrue. A writ of replevin can only be issued by Order of the Court. It is usually for the recovery of tangible personal property that has been wrongfully taken or detained.
Typically, the plaintiff will move (that is, make a motion) for the requested relief. The motion is to be heard on no less than three days’ notice to the litigant in possession of the chattels. (A chattel is a (moveable) article of personal property, as distinguished from real estate.) The litigant in possession of the chattels must file and serve any opposing affidavits or cross-motions at least one day before the hearing. The motion may be granted only on the Superior Court’s finding, based on the moving papers, any opposing affidavits which may have been filed, and any testimony taken, that there is a probability that final judgment will be rendered in favor of the moving party.
If the Court, after the hearing and based on filed papers and testimony, if any, finds it’s probable that the plaintiff will win a final judgment, then the Court may, before final judgment, either grant possession of the goods to the plaintiff or order other proper remedies.
The writ of replevin must be signed in the name of the Clerk of the Superior Court issuing the writ. The writ of replevin must be directed to the sheriff, or other officer authorized by law, of the county where the chattels are located. The write of replevin must describe the chattels with specificity.
On receipt of the writ of replevin and the delivery of a replevin bond or a cash deposit, the sheriff or other officer will immediately cause the chattels to be replevied and delivered.
After a judgment in the plaintiff’s favor in a replevin action, he or she may choose one of several remedies. Where the goods and chattels are in possession of the defendant at the time of judgment, the plaintiff may either (i) accept money damages or (ii) move, on written notice to the defendant or the defendant’s attorney of record, for an Order directing delivery of the goods.
Now, let me give a few practical tips on making a motion for the issuance of replevin where the goods or chattels sought are not tangible but intangible. An example of intangible goods or chattels is electronic data which is contained on a laptop or on an external storage device.
In such a case, the plaintiff should move for a writ of replevin directed to the sheriff of the relevant county and an Order:
- Directing the return by the defendant of the intangible property and all copies of the property, regardless of form (paper, electronic, cloud-stored, or otherwise);
- Awarding, to the plaintiff, possession of any storage devices containing the intangible property;
- Directing the permanent erasure by the defendant of the intangible property;
- Directing the defendant and anyone else who received a copy of the storage device containing the external property by electronic means to submit their electronic devices to a qualified, independent forensic analyst selected by the plaintiff to confirm that any and all of the plaintiff’s intangible property has been entirely and permanently erased from such devices and from any cloud service or other outside storage method; and
- Directing the defendant to pay the cost of that forensic analysis.
If your company wants to bring, or needs a lawyer to defend it in, business litigation and you are located in the Manhattan City area, call Manhattan City Business Litigation Attorney David S. Rich at (212) 209-3972.