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Rule 64 – Replevin

May 13, 2021 | Civil Procedure, Maine

(a) Availability of Replevin. A plaintiff claiming the possession of goods wrongfully taken or detained may replevy the goods on writ of replevin as provided by this rule or by law, provided that the value of the goods sought to be replevied is within the subject-matter jurisdiction of the court.
(b) Writ of Replevin: Form. The writ of replevin shall bear the signature or facsimile signature of the clerk, be under seal of the court, contain the name of the court, the names and residences of the parties and the date of the complaint, be directed to the sheriff or the sheriff’s deputies of the county within which the goods are located, and command them to replevy the goods, which shall be described with reasonable particularity and their respective values stated. The writ of replevin shall also state the name of the justice or judge who entered the order approving the writ of replevin and the amount of the replevin bond and the date of the order.
(c) Same: Service. No writ of replevin shall be executed unless both it and the amount of the replevin bond are approved by order of the court. Except as provided in subdivision (h) of this rule, the order of approval may be entered only after notice to the defendant and hearing and upon a finding by the court that it is more likely than not that the plaintiff will prevail in the replevin action and that the amount of the replevin bond is twice the reasonable value of the goods and chattels to be replevied.

A replevin action may be commenced only by filing the complaint with the court, together with a motion for approval of the writ of replevin and the amount of the replevin bond. The motion shall be supported by affidavit or affidavits setting forth specific facts sufficient to warrant the required finding and shall be upon the affiant’s own knowledge, information and belief; and, so far as upon information and belief, shall state that the affiant believes this information to be true. Except as provided in subdivision (h) of this rule, the motion and affidavit or affidavits with notice of hearing thereon shall be served upon the defendant in the manner provided in Rule 4 at the same time the summons and complaint are served upon that defendant.

A defendant opposing a motion for approval of a writ of replevin shall file material in opposition as required by Rule 7(c). If the defendant is deemed to have waived all objection to the motion as provided in Rule 7(c) for failure to file the opposition material within the time therein provided or as extended, the court shall, without hearing, upon a finding that the plaintiff is entitled to a writ of replevin under the terms of this subdivision (c), enter an order of approval of the writ.

The writ of replevin may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (b) of this rule. The plaintiffs’ attorney shall deliver to the officer replevying the goods the original writ of replevin upon which to make the officer’s return and shall attach thereto the bond required by law and a copy of the writ of replevin and bond for service on the defendant. The officer shall forthwith cause the goods to be replevied and delivered to the plaintiff. Thereupon the defendant shall be served, in the manner provided in either Rule 4 or Rule 5, with a copy of the writ of replevin and bond, with the officer’s endorsement thereon of the date of execution of the writ.

(d) Allegations of Demand and Refusal; Title. If the action is for a wrongful detention only, a demand and refusal of possession before beginning the action shall be alleged by the plaintiff in replevin. Where the title to the goods of the plaintiff in replevin rests upon the title of a third person or upon a special property, the facts shall be alleged.
(e) Defenses; Counterclaim. All defenses shall be made by answer. If the defendant in replevin claims title to the goods or relies upon the title of a third person or upon a special property, the answer shall so state. All claims by the defendant in replevin for a return of the goods, or for damages, or a lien in an amount within the subject-matter jurisdiction of the court, shall be made by counterclaim or answer.
(f) Replevin on Counterclaim, Cross-Claim or Third-Party Complaint. Goods may be replevied on writ of replevin by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim, provided that the goods are located within the county where the action is pending and the value of the goods is within the subject-matter jurisdiction of the court.
(g) Equitable Replevin. These rules shall not be construed to extend or limit the availability of equitable replevin.
(h) Ex Parte Orders Approving Replevin. An order approving a writ of replevin and the amount of the replevin bond may be entered ex parte upon findings by the court that it is more likely than not that the plaintiff will prevail in the replevin action and that the amount of the replevin bond is twice the reasonable value of the goods and chattels to be replevied, and that either (i) the person of the defendant is not subject to the jurisdiction of the court in the action; or (ii) there is a clear danger that the defendant if notified in advance of replevin of the property will remove it from the state or conceal it; or (iii) there is immediate danger that the defendant will damage or destroy the property to be replevied. The motion for such ex parte order, in the filing of which the plaintiff’s attorney shall be subject to the obligations of Rule 11, shall be supported by affidavit or affidavits meetings the requirements set forth for affidavits in subdivision (c) of this rule. The hearing on the motion shall be held forthwith after the filing of the complaint.
(i) Return of Property Replevied on Ex Parte Order. On 2 days’ notice to the plaintiff or on such shorter notice as the court may prescribe, a defendant from whom property has been replevied pursuant to an ex parte order entered under subdivision (h) of this rule may appear, without thereby submitting to the personal jurisdiction of the court, and move the return of the property replevied, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding in the ex parte order which the defendant has challenged by affidavit. Nothing herein shall be construed to abolish or limit any means, otherwise available by law, for obtaining return of the replevied property or damages or a lien, or for obtaining an adjudication of the rights of the parties in the replevied property.

Me. R. Civ. P. 64

Amended January 31, 2013, effective March 1, 2013.

Advisory Committee’s Notes 1993

Rules 64(c) and (h) are amended for conformity with Rules 4A and 4B as amended effective February 15, 1992, and simultaneously with the present amendment. The standard of “more likely than not” is adopted for approval of a writ of replevin as a matter of policy rather than constitutional mandate in order to strike a more even balance between plaintiff and defendant. Under the former standard of “reasonable likelihood,” the plaintiff had only to show that there was some substance to the claim. Under the amended standard, the plaintiff must show a greater than fifty percent chance of prevailing.

Language is also added to Rule 64(c) for the purpose of expediting proceedings by requiring the court to issue the writ of replevin without hearing if the defendant fails to respond to the motion for approval within 21 days as provided in Rule 7(c). Rule 64(h) is further amended to provide for expedited hearing of an ex parte motion for approval.

For further discussion of the reasons for these amendments, See M.R. Civ. P. 4A advisory committee’s note to 1992 amend., Me. Rptr., 604 A.2d adv. sht. no. 2 at CXLII-CXLIV, and Advisory Committee’s Note to simultaneous amendments of Rule 4A.

Rule 64(c) is also amended to eliminate a gender reference that was inadvertently omitted from the general amendments of July 1, 1987, eliminating such references.

Advisory Notes – January 1, 2013

The third sentence of the second paragraph in subsection (c) is amended to correct a typographical error. The rule is revised to read “affidavit or affidavits” instead of, “affidavits or affidavits.”