Writs of Seizure v. Replevins in Pennsylvania
In an action for Replevin to recover and seize equipment of a secured party or owner of equipment, the moving party must serve the Defendant with the Complaint in Replevin. Thereafter, if no Answer is filed, a Default Judgment may be entered and an Execution can be made by the Sheriff to attach the Equipment for sale. This can often be difficult if the Defendant is trying to evade service. With both the Complaint and the Writ of Execution, both steps require service upon the Defendant. In an action for Writ of Seizure, the service requirement of the Complaint is dropped and the only requirement involving notice to the Defendant is to prove that you attempted Service of Notice regarding the hearing date for the seizure motion hearing to prove Plaintiff’s right to the equipment. If the Court is satisfied that notice as provided by this rule has been given or a reasonable attempt to give notice has been made, it shall determine from the complaint, affidavits, testimony, admissions or other evidence, whether the plaintiff has established the probably validity of the claim and, if so, it may order a writ of seizure to be issued upon the filing of a bond as provided by Rule 1075.3. PA R.C.P. 1075.1(e).
“The failure of a defendant or other person found in possession of the property to appear or be represented at the hearing shall not be considered a waiver of any right to defend the action or to file a counter bond.” PA R.C.P. 1075.1(f).
All the problems associated with a Complaint in Replevin such as service and the right of the Defendant if service is made to file an Answer and impede the process of obtaining a judgment are eliminated with the Motion for Issuance of Writ of Seizure. All that is required with the Motion process is to prove that the Plaintiff has a security interest in the property and that the Defendant is in default of the loan instrument or lease showing the court that there is a probable validity to the claim.
Therefore, although there is more time involved in preparing a Motion for Writ of Seizure and a Hearing, etc., there is a greater probability of recovering your equipment plus having a day in court that may increase the likelihood of obtaining a settlement. Also, if the Defendant does appear at the hearing, the Judge will order the Defendant to disclose the location of the equipment if he/she has been concealing the equipment.