JurisdictionUnited States,Federal
CitationVol. 4 No. 1 Pg. 11
Publication year1975
4 Colo.Law. 11
Colorado Lawyer

1975, January, Pg. 11. Replevin


Vol. 4, No. 1, Pg. 11


by Michael Sawaya

In a 1972 decision, Fuentes v. Shevin,(fn1) the United States Supreme Court radically altered the law of replevin. In that case the Court held that the summary seizure of goods by writ of replevin is a violation of Fourteenth Amendment due process of law. The two statutes, from Florida and Pennsylvania, reviewed by the Court had provided for the issuance of writs upon the ex parte application of any person claiming a right to them who had posted a security bond. The statutes did not provide for notice to be given to the possessor of the property, nor did they provide an opportunity to challenge the seizure at any kind of prior hearing. The Florida statute required an eventual hearing on the merits; the Pennsylvania statute did not. The Pennsylvania law did not even require that the plaintiff formally allege that he was lawfully entitled to the property. The Court struck down both statutes on the grounds that there was not the notice and hearing that due process requires. The Court stated:

The Constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions.(fn2)

Describing the necessity for a prompt hearing the Court said

If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.(fn3)

An award for damages or an eventual return of the property to the defendant will not satisfy the requirements of due process because, the Court said, neither "can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred."(fn4) The Court enumerated three exceptions to the requirement of notice and a hearing prior to the taking: (1) if the seizure is directly necessary to secure an important governmental or general public interest; (2) if there is a special need for very prompt action; and (3) if it is necessary and justified governmental action determined by an official under a narrowly drawn statute.(fn5)
The Mitchell Case

Supreme Court decisions had been extending Fourteenth Amendment protection but had left its application in many areas unclear. In the 1969 decision, Sniadach v. Family Finance Corp.,(fn6) the Court held Fourteenth Amendment due process requires notice and a hearing for garnishment of wages. In the 1970 decision, Goldberg v. Kelly,(fn7) the Court held the


Fourteenth Amendment requirements must be applied in the summary termination of welfare benefits. Fuentes made it clear that the application of the Fourteenth Amendment to replevin cases was in the mainstream of its due process decision.(fn8) The legal history and the changes made by the Supreme Court have been the subject of numerous law review articles and cases.(fn9)

After Fuentes it was contended that the definitive standard for due process in the taking of property was firmly established.(fn10) Before the controversy over the ramifications of Fuentes had subsided, however, the Supreme Court, in the case Mitchell v. W. T. Grant Co.,(fn11) again reviewed the constitutionality of a pre-judgment ex parte procedure for the possession of property. Whereas Fuentes was notable for its concise statements of the minimum procedural requirements of due process, Mitchell is notable for its lack of such concise statements.

Mitchell was brought under the Louisiana sequestration rules as applied through the procedure of the Orleans Parish. Under those rules sequestration is allowed without prior notice or hearing if it is within the power of the defendant to conceal, dispose of or waste the property or the revenues therefrom, or remove the property from the parish during the pendency of the action.(fn12) The rules provide that the writ will not issue unless the nature of, the amount of, and the grounds for the claim clearly appear from the facts shown by the affidavit or the petition of the plaintiff.(fn13) The procedure of the Orleans Parish requires that the sufficiency of the plaintiff's petition be determined by a judge and not merely by the court clerk as the Louisiana rules allow.

The plaintiff, W. T. Grant Co., secured a writ of sequestration for merchandise it had sold the defendant under an installment sales contract. The defendant, relying in part on Fuentes, challenged the taking of his property on the grounds that the procedure involved had not followed Fourteenth Amendment due process requirements. The Louisiana courts upheld the sequestration, and the Supreme Court affirmed the state court holding.

The Court held that the statutory procedure effected a "constitutional accommodation of the conflicting interests of the parties."(fn14) The Court rejected the defendant's argument that due process of law required a judicial resolution of all issues in the case before his property could be taken from him. The Court recognized that in this situation the plaintiff, seller, had a substantial interest in the property that deserved protection by the Court. The Court agreed that the mere power of the debtor to conceal or destroy the goods was sufficient grounds for sequestration when weighed against the fact that under Louisiana law the debtor could destroy the seller's lien by transferring possession of the property.

The Court, stating that "the requirements of due process of law are not technical, nor is any particular form of procedure necessary,"(fn15) rejected the contention that Fuentes was controlling in the particular situation presented to the Court. The opinion carefully avoided expressing an opinion on the validity of the Fuentes requirements:

... Fuentes was decided against a factual and legal background sufficiently different from that now before us and... does not require the invalidation of the Louisiana sequestration statute, either on its face or as applied in this case.(fn16)

The Louisiana statute was found to have a procedure for determining the "relative rights" of the parties that was lacking in the Florida and Pennsylvania statutes under consideration in Fuentes. The Louisiana statute did not allow sequestration on the mere conclusionary claims of ownership or lien. The plaintiff was not at the "unsupervised mercy of the creditor and court functionaries."(fn17)

The Court noted that "as in Fuentes, consideration of the impact on the debtor remains."(fn18) In Mitchell the defendant had not been left "in limbo to await a hearing


that might or might not 'eventually' occur, as he was under the statutory schemes before the Court in Fuentes."(fn19) The Court found the procedure to be constitutionally valid because it minimized the risk of wrongful possession by the creditor while protecting the debtor's interest in "every conceivable way, except allowing him to have the property to start with."(fn20) This was done in pursuit of what the Court deemed "an acceptable arrangement pendente lite to put the property in the possession of the party who furnishes protection against loss or damage to the other pending trial on the merits."(fn21)

The Court clearly sought to limit its ruling to the factual situation and the law presented to it:

Our holding in this case is limited to the constitutionality of the Louisiana sequestration procedures.(fn22)

The Court stressed that it was considering the validity of a procedure that required judicial supervision from the outset.(fn23) The Court said its decision would not affect recent cases dealing with garnishment or summary self-help remedies of secured creditors or landlords.(fn24)

In light of Mitchell, the status of Fuentes is unclear. The decision of the Court, expressing the opinions of four Justices, did not expressly overrule Fuentes. The concurring opinion of Justice Powell states that Fuentes is overruled insofar as prior notice and an adversary hearing are no longer required in every action for possession of personal property. It is perhaps important that the decision of the Court avoided such a statement.

It may be argued that the Louisiana statute comes within one of the exceptional situations of the Fuentes decision in which a prior hearing and notice are not required before the taking. In support of this argument it can be said that, although the exception may be expanded, the basic procedure of Fuentes is substantially unchanged. The procedure is supervised by the court and the debtor is protected by the requirement of a hearing upon request.(fn25) Mitchell does not state what may be the minimum procedure that will satisfy due process. It merely states that the situation presented did not fall below the requirements, whatever they may be. It may have been the intention of the Court to retain the basic requirements of Fuentes in the exceptional situation, viz., judicial supervision with a prompt hearing and an eventual trial on the merits, without giving them such rigidity that the Court would be put in an untenable situation in an analogous case presented to it in the future.(fn26)


Colorado followed the Fuentes statement of due process by changes in Rules 104 and 404 of its Rules of Civil Procedure. Rule 404 and Rule 104 are identically worded with the exception that Rule 404 limits the proceeding in county court to actions for the possession of personal property of a value not to exceed $500.(fn27) Reference will hereinafter be limited to Rule 104. The subdivisions of Rule 404 are identical to the subdivisions of Rule 104.

The old rule required that one seeking the return of personal property file an affidavit with the court clerk showing:(fn28) (1) lawful entitlement to possession; (2) wrongful...

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