A consumer who defaults on a vehicle loan usually faces the repossession of the vehicle, but sometimes a lender will use replevin as an alternative. While repossession does not involve a formal process in court, replevin consists of getting the court to order the consumer to return the vehicle to the lender. Often, the court also issues a money judgment in the lender’s favor. Failing to comply with the court order will subject the consumer to penalties. You must hand over the car to the lender once a replevin order has been issued and served on you. The lender also has the right to cut locks to take away the vehicle, potentially with a sheriff’s assistance, if it has obtained a replevin order.
You do not have a right to notice in the repossession process, but you do have a right to notice if the lender pursues a replevin action. The creditor must provide you with written notice of its intent to seek an order of replevin, and certain due process requirements apply. For example, you need to have an opportunity to be heard before the court issues the replevin order. You will receive written notice of the time, date, and location of this hearing. Before the hearing, you can answer the lender’s complaint in the replevin action, although you probably will have only a short time to respond.
When Replevin May Apply
In general, repossession is easier for a lender than replevin because it involves a less formal process and tends to be more efficient. A lender cannot use repossession, however, when it would result in a breach of the peace. Thus, this is the most common situation in which replevin may occur when a consumer defaults on a car loan. A breach of the peace is somewhat narrowly defined. It does not include seizing a vehicle without notice or hotwiring a car to drive it away. A breach of the peace may or may not include an argument with the consumer or disturbances to people in the vicinity.
Actions that likely constitute a breach of the peace include violence or threats of violence, as well as actions that are likely to escalate the situation into violence. The lender cannot enlist the assistance of law enforcement for repossession. Also, repossession cannot involve trespassing onto the consumer’s property or damaging the property to access the car, such as breaking a lock or breaking into a garage.
There may be a few other situations in which replevin may be a better option than repossession for a lender. If the car cannot be found at any of the locations where the lender tells the repossession agent to look for it, the lender may need to get a replevin order. This will order the consumer to hand over the car or inform the lender of its location. A lender also may want to get a court involved if it believes that it will need the court to be involved in further actions against the consumer. In some cases, moreover, the lender may find that replevin is more efficient than repossession if it wants to obtain a money judgment against the consumer in addition to reclaiming the car.