How to get your property back from a debtor who is not paying you.

SELF-HELP REPOSSESSION

A creditor can only use self-help repossession if it has a security interest (UCC filing or a title)  in personal property.   If a creditor has a perfected (it has been filed with the Secretary of State) security interest, it is entitled to use self-help under the UCC.  Section 4-9-609 C.R.S. allows a secured party to take possession of the personal property (collateral), without an order from the court, if the creditor can do so without breaching the peace.  If the collateral is behind a locked door or gate, then repossession would breach the peace.  If the collateral is unreachable or the location is unknown, a creditor can file a replevin action under Rule 104, C.R.C.P.   Rule 104 requires the following to be filed with the Court:

1.         A verified complaint alleging that the Plaintiff is the owner of the property or is entitled to possession, attaching a copy of the document entitling the Plaintiff to possession;

2.         An allegation that the property is being detained by the defendant against the Plaintiff’s right to possession thereof and the specific facts constituting detention against the right of the Plaintiff to possession;  

3.         A particular description of the property, a statement of its actual value, a statement of the location of the property, and;

4.         a statement that the property has not been taken for a tax assessment, or fine; or seized under an execution against the property of the Plaintiff.

The Court reviews the Verified Complaint and issues a show cause order directed at the Defendant to show cause why the property should not be taken from the Defendant and delivered to the Plaintiff.  The hearing shall be not more than 10 days from the date of the issuance of the order and the order must be served on the Defendant at least 5 days prior to the hearing date.  The Plaintiff may request a hearing date longer than 10 days, which waives the right to a hearing not more than 10 days after the date of the order. This hearing takes precedence over all civil actions, except other cases to which special precedence is given by law.  If the Defendant fails to appear for the Show Cause hearing, then the Court will issue an order granting possession of the property to the Plaintiff.

The Court can grant an Order for Possession prior to the hearing, if:

a)                  the defendant gained possession of the property by theft;

b)                  the property consists of negotiable instruments or credit cards;

c)                  the property is perishable or the defendant may destroy, dismantle, remove parts from or in any way substantially change the character of the property; or will conceal or remove the property from the jurisdiction of the court; or

d)                  the defendant, by contract, voluntarily, intelligently, and knowingly waived his right to a hearing prior to losing possession of the property.

The Court can require a bond, in its discretion, not to exceed double the value of the property. The Court can also order the Defendant to preserve the property.

The order for possession will describe the specific property and specify the probable location or locations where the property can be found. The sheriff is directed to take the property and retain it in his custody.  The sheriff can deliver the property to the Plaintiff, after receiving his fees.  The sheriff can also cause a building or enclosure to be broken into, if necessary. The Sheriff generally will require a Writ of Assistance for this. The Sheriff then serves a copy of the order for possession upon the Defendant.

Submitted by Terry Ehrlich, Esq.