Claim and Delivery Actions
Can you assist me with a Claim and Delivery action?
Yes. You should make a demand for return of the property. Your case should be solid, because if you fail to prevail in your underlying action you could face liability.
What is a Claim and Delivery?
Someone has your property and you want it back. More often than not, you have a lien against personal property that you previously sold and the buyer is in default, but refuses to return the property or allow repossession of the property. It could be that you loaned or leased property to someone and they refuse to return it. You must file a lawsuit for possession of personal property (often referred to as a Claim and Delivery action) prior to seeking a Writ of Possession (W/P). Claim and delivery is actually a pre-judgment remedy wherein a party with a superior right to a specific item of personal property applies to the court for a W/P to recover possession of specific property before judgment.
How do I obtain a Writ of Possession?
After the lawsuit is filed, you notice a motion for a issuance of a W/P. In an extreme emergency, a motion may be heard Ex Parte. A temporary restraining order can also be requested when the property may be lost or destroyed or otherwise endangered prior to a notice hearing. A bond or undertaking is required.
What do I have to prove to get a Writ of Possession?
To obtain a writ for immediate possession of property, the plaintiff must show that the plaintiff has the right to immediate possession of tangible personal property; and the property is being wrongfully withheld by defendant. Tangible personal property means the property can be identified and seized.
What happens at the hearing?
Normally, the matter proceeds based on written evidence and declarations. Even if the defendant fails to show up, the plaintiff must still prove the right to the W/P by showing the probable validity of the claim to possession of the property and a probability of immediate danger that the property will be transferred, concealed or removed, or may become substantially impaired in value. Probable validity means it is more likely than not that plaintiff will obtain judgment in the underlying lawsuit.
What happens after the Writ of Possession is issued?
The sheriff usually goes out and get the property. Sometime there is a turnover order requiring the other party to turnover the asset. If the other party posts a sufficient bond, they may defeat the Writ of Possession and hold onto the property.