How do I obtain a writ of replevin to repossess a vehicle?

Full Question:

How do I obtain a writ of replevin to repossess a vehicle that the debtor is refusing to give up? I need to know what and where to file.
03/05/2009   |   Category: Judgment Liens   |   State: Arizona   |   #15452

Answer:

In order to have property returned through replevin, the property sought must be of a unique and identifiable character, so that money is inadequate to compensate for its loss. Typically, when a person fails to pay for a car purchase and the contract of sale doesn't provide for the car to be repossessed, a breach of contract action is filed for payments owed.

A lien is a claim to property for the payment of a debt, typically one connected to the property. It is the right to retain the lawful possession of the property of another until the owner fulfills a legal duty to the person holding the property. The right of lien generally arises by operation of law, but in some cases it is created by express contract. There are two kinds of liens; particular and general. When a person claims a right to retain property, due to money or labor invested in that property, it is a particular lien. Liens may arise by express contract; from implied contract, as from general or particular usage of trade; or by legal relation between the parties, such as created with common carriers and inn keepers. To create a valid lien, it is essential that the party claiming a lien should have the absolute property or ownership of the thing or, at least, a right to vest it; that the party claiming the lien should have an actual or constructive, possession, with the assent of the party against whom the claim is made; that the lien should arise upon an agreement, express or implied and not be for a limited or specific purpose that contradicts the express terms or the clear, intent of the contract. In certain circumstances, the lien holder may foreclose on the property if the debt is not paid in full. Liens can generally be removed by the payment of the amount owed. This payment can occur at any time up to and including the stage at which the closing documents for the sale of the property are signed.

When a contract has been breached, the party who fails to uphold their end of the bargain may be sued for a breach of contract. If the plaintiff is successful, the court can award money damages. The plaintiff is then called a judgment creditor (JC) and the defendant is a judgment debtor (JD). If the JD fails to pay the judgment, the JC can ask the court to create a judgment lien to attach the assets of the JD.

The following are AZ statutes:

12-2402. Provisional remedies without notice; grounds for issuance

A. Any provisional remedy may be issued by any judge of the superior
court or justice of the peace of this state before judgment and without
prior notice to the party against whom it will operate in any of the
following cases:

1. When the party against whom the provisional remedy is sought is about
to remove permanently from the state and has refused to secure the debt, or
when such party has secreted property for the purpose of defrauding
creditors, or that such party has disposed of property, wholly or in part,
with intent to defraud creditors, or that such party is about to dispose of
property with intent to defraud creditors.

2. When the moving party is the owner or lessor or otherwise is lawfully
entitled to the possession of the property claimed, has satisfied the
requirements of sections 12-1301 and 12-1303, and is seeking a provisional
remedy in the nature of replevin, except that a provisional remedy under
this section may not be obtained to enforce a security interest in consumer
goods which is not a purchase money security interest.

3. When any provisional remedy is required to obtain jurisdiction.

B. Before any provisional remedy shall issue, the party seeking such
remedy shall establish with particularity by affidavit to the court's
satisfaction sufficient facts supporting the party's claim and establish
that one of the requirements of subsection A of this section has been met
and that such party will file such other pleadings or affidavits as are
required by law as a prerequisite to the issuance of any provisional remedy
sought.

C. When a provisional remedy is issued, the party against whom it will
operate may immediately move to quash such order and the court or justice
of the peace shall hear such motion within five days, exclusive of weekends
and holidays. The issues at such hearing shall be limited to the following:

1. The probable validity of the claim or claims of the party seeking the
provisional remedy and any defenses and claims of personal property
exemptions of the party against whom such provisional remedy will operate.

2. The existence of any statutory requirement for the issuance of any
provisional remedy sought, plus the existence of any grounds in subsection
A of this section.

D. The party seeking the provisional remedy shall at the time of the
seizure, attachment or garnishment, or within three days thereafter,
exercise reasonable diligence to serve the party against whom a provisional
remedy is sought with notice of the seizure, the impound or such other act
ordered by the court and of said party's right to an immediate hearing
contesting the same.

E. Upon the filing of an application as provided in this section, the
justice of the peace or any clerk of the superior court shall issue a
notice directed to any party against whom any provisional remedy would
operate, substantially in the following form:

"Notice

You are hereby notified that your (property) is being taken away from
you by (party seeking provisional remedy), who says that you owe (such
party) a debt of $(amount). (Party seeking provisional remedy) is
taking your property because (such party) says:

(a) That you were about to remove permanently from the state and refused
to secure the debt, or

(b) That you had secreted property for the purpose of defrauding
creditors, or

(c) That you had disposed of property, wholly or in part, with intent to
defraud creditors, or were about to dispose of property with intent to
defraud creditors, or

(d) That (party seeking provisional remedy) claims the right of
possession to your property under a purchase money security interest.

If you disagree and think you do not owe (party seeking provisional
remedy), or that you have not done any of the things which (party seeking
provisional remedy) said you did or were about to do, then you can ask a
court to hear your side of the story and give your property back to you. If
you want such a hearing, it will be given to you within five working days
after you ask for it. Just check the box at the bottom of this notice and
mail it or take it to the court or division of the court, at the following
address: (address of court or division of the court). You must also
send a copy to (party seeking provisional remedy) at (address), so
that (party seeking provisional remedy) knows you want the hearing."

12-2404. Application for provisional remedy with notice

A. A party may at any time after the filing of a civil action make
application, under oath, to the court to issue any provisional remedy
allowed by law.

B. Such application shall be filed with the judge, justice of the peace
or clerk of any superior or justice court and shall set forth the factual
and legal basis for each provisional remedy sought.

12-2406. Service of notice and application

A. A copy of the notice as set forth in sections 12-2402 and 12-2405 and
a copy of the application for issuance of any provisional remedy shall be
served on each party against whom any remedy will operate in the manner
prescribed by law for service of a summons and complaint.

B. The notice and application shall be served by any sheriff, constable
or private process server and return shall be made as in the case of a
summons and complaint.

C. At the time of serving the notice as set forth in sections 12-2402 and
12-2405, the following notice in English and Spanish shall be served:
"Notice! A lawsuit has been filed against you. In order to protect your
rights, please read carefully the other papers which were served upon you
with this notice!"


12-2403. Provisional remedies with notice; grounds

Except as provided in section 12-2402, no provisional remedy shall be
issued by any judge or justice of the peace until:

1. All statutory requirements for the issuance of such provisional remedy
have been complied with by the party seeking such remedy.

2. An application and notice for issuance of any provisional remedy has
been filed with the clerk of the court and a copy of such notice and
application have been served on the party against whom any remedy will
operate.

3. The party against whom any provisional remedy is sought has been
afforded an opportunity for a hearing or a hearing has been held as
provided in this article.

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