Secured creditors are often faced with uncooperative borrowers following a default, resulting in the need to resort to legal action to recover collateral. In the State of Maine, there are two basic remedies available to creditors to pursue recovery of personal property by legal action. One is a replevin action and the other is a forcible entry and detainer action.
A replevin action may be commenced in either the District or Superior Court. A replevin action is commenced by filing a complaint for replevin with the court along with a motion for writ of replevin and supporting client affidavit. Once these documents are filed with the court, the court sets a date and time for the hearing on the motion for writ of replevin. The complaint and related documents are then served on the defendant along with the notice of hearing. At the hearing, if the court grants the motion the plaintiff must then provide the court with a bond from a bonding company in order to be able to obtain the writ of replevin. The bond amount must be twice the value of the collateral to be recovered. Once the writ of replevin is issued by the court, it is given to the sheriff who then serves it on the defendant and recovers the collateral. This requires coordination with a repossession agent who can take actual possession of the collateral. Once recovered, the collateral is sold and the lawsuit is pursued to conclusion, resulting in a final judgment confirming the plaintiff’s right to possession of the collateral and a monetary judgment against the defendant for any deficiency balance, if the plaintiff proves its case.
A forcible entry and detainer action may be plenary or summary in nature and can only be filed in the District Court. In the plenary action, the complaint demanding possession of the equipment is filed with the court and served on the defendant. If the defendant files an answer, then the parties may proceed with discovery, motion practice, and ultimately a trial, if needed. If the summary forcible entry and detainer process is used, then the defendant is served with a complaint and a summons which has a return day for the hearing. The defendant is not required to file an answer to the complaint but can simply appear on the return day and contest the matter. The case is to be tried on the return day if the court schedule permits. Hence, the summary procedure requires that the plaintiff have a witness available for trial on the return day if the defendant appears and contests the matter. The parties can also be ordered by the court to participate in mediation on the return day, using court appointed mediators who are present on the return day to mediate cases. Whether the summary or plenary procedure is used the result, if the plaintiff prevails, is the issuance of a writ of possession which is then served on the defendant by the sheriff, who demands possession of the collateral. No bond is required in a forcible entry and detainer action.
If you are a creditor and are interested in recovering your property please contact me today.
