4.2 Prejudgment Remedies

LibraryVirginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

4.2 PREJUDGMENT REMEDIES 174

4.201 Prejudgment Remedy of Detinue. 175 General district court forms pertaining to detinue are listed below:

DC-404 Warrant in Detinue—Small Claims Division (Va. Code §§ 16.1-79, 16.1-122.3);
DC-407 Request for Hearing—Exemption Claim (Va. Code § 8.01-546.1);
DC-414 Warrant in Detinue (Civil Claim for Specific Personal Property) (Va. Code §§ 16.1-79, 8.01-114, 8.01-121);
DC-415 Detinue Seizure Petition (Va. Code § 8.01-114);
DC-416 Detinue Seizure Order (Va. Code §§ 8.01-114 to 8.01-119);
DC-447 Plaintiff's Bond for Levy or Seizure (Va. Code § 8.01-537.1);
DC-448 Defendant's Bond for Levy or Seizure (Va. Code §§ 8.01-116, 8.01-526, 8.01-553, 8.01-130.7); and
DC-468 Writ of Possession and Fieri Facias in Detinue (Va. Code §§ 8.01-470, 8.01-472).

An action of detinue is used to recover personal property unlawfully withheld from the plaintiff by the defendant; 176 the plaintiff must have a right to the immediate possession of the property under law or by a contract. The plaintiff does not have to claim ownership of the property.

The plaintiff may recover the property in a prejudgment, ex parte proceeding before a judge or magistrate upon the filing of a petition that:

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1. Describes the kind, quality, and estimated fair market value of the property as to which plaintiff seeks possession;
2. Describes the basis of the plaintiff's claim with such certainty as will give the adverse party notice of claim;
3. Alleges under oath one or more grounds mentioned in Va. Code § 8.01-534 and set forth specific facts in support of such allegation. 177

In the showing of the matters described above, the court will issue an order commanding the sheriff to seize the property and hold it for the plaintiff pending a final determination of the case. 178

The plaintiff must post a bond with surety before the judge will issue a seize order. 179

Within 30 days after the issuance of the detinue seizure order, the court shall conduct a hearing to review the decision to issue the detinue seizure order, or within 10 days the court will hear a motion by the defendant that the property is exempt from levy under Va. Code § 8.01-546.2. 180

If the court is satisfied after the preliminary hearing that the plaintiff was entitled to seize the property in the defendant's possession, the court will let stand the detinue order previously issued, or if a seizure order has not previously been entered, will order the property seized by the sheriff.

The defendant may have the property which has been seized by the plaintiff returned upon posting a bond. 181

The plaintiff has an option to file a...

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