Opinion
No. HHB CV 11 5015366 S
August 12, 2011
MEMORANDUM OF DECISION RE APPLICATION FOR WRIT OF REPLEVIN
On August 9, 2011, the court conducted a full evidentiary probable cause hearing on the plaintiff's writ of replevin, applied for as a prejudgment remedy, seeking the immediate possession of one 2004 Prowler Regal RV 5th Wheel Camper, VIN1EC5B362644282079 ("camper"). In a replevin action, the court must compare the superiority and inferiority of competing rights to possess the property. Angrave v. Oates, 90 Conn.App. 427, 430, 876 A.2d 1287 (2005). For a prejudgment writ of replevin, the plaintiff must establish probable cause that it will prevail on its action in order to obtain the immediate relief it requests. General Statutes §§ 52-278a to 52-278f. "The remedy [of replevin] is purely statutory. The plaintiff must prevail by the strength of his title rather than by the weakness of the defendant's. He must show an immediate right to possession of the property at the time of bringing the action." D'Addario v. Abbott, 128 Conn. 506, 508, 24 A.2d 245 (1941).
The plaintiff is represented by counsel. The defendants are self represented litigants. The following facts were found by a preponderance of the evidence.
The defendants entered into an installment contract, which constitutes a note, for the purchase of the camper with its seller of the camper in March 2005, using the camper as collateral. The applicable substantive controlling law is Federal or Florida. Plaintiff's Exhibit 1. As collateral, the camper is a secured interest. The seller assigned its rights to the note to Wachovia Bank, N.A., predecessor in interest of the plaintiff. Id.
In 2010, the defendants were delinquent in payments. The last payment credited to the defendants' account was on January 19, 2010. The defendants submitted a payment on the account on March 1, 2010. However, the payment was reversed on March 4, 2010 and the monies attributed by the plaintiff's predecessor in interest as payment, not of principal or interest on the note, but of "private investigator fees," which transaction the plaintiff claims is not disallowed by Florida law. No further payments have been tendered by or on behalf of the defendants to date. The defendants have not placed the disputed payments in an escrow account and do not presently have the funds to extinguish the delinquency. The defendants are in default of the note.
The plaintiff is entitled to replevy the collateral, a secured interest, pursuant to the terms of the note. The defendants are in possession of the collateral, the camper, wrongfully detained.
The principal sum owed by the defendants to the plaintiff as of June 2, 2010 is $28,616.51. The present value of the camper is $20,430.00. Pursuant to General Statutes § 52-518, the plaintiff has filed a bond with the court for double that amount. Court Exhibit 1.
In order to succeed on the writ of replevin, Wells Fargo Dealer Services, Inc. ("Wells Fargo") must establish probable cause that it "has a general or special property interest with a right to immediate possession" of the camper and that the camper is being "wrongfully detained" from it. General Statutes §§ 52-515; 52-516(b). "The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. (Citation omitted; emphasis in original; internal quotation marks omitted.) Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984)." Scanlan Co. v. Construction Group, Inc., 80 Conn.App. 345, 350, 835 A.2d 79 (2003).
Upon consideration of the facts before it, the court finds that the plaintiff, Wells Fargo, has shown probable cause that it has a general or special property interest with a right to immediate possession of the camper and that the camper is being wrongfully detained. The defendants are delinquent on the note for a period of time of over one year and have not been holding the disputed funds in escrow. The defendants do not have the ability to become immediately current on the note.
The plaintiff has filed a bond with the court, Court Exhibit 1, in the amount of $40,860, double the sworn value of the camper, pursuant to General Statutes § 52-518. The plaintiff has established probable cause that it will prevail at trial and that the plaintiff has greater rights of possession of the camper. The plaintiff is entitled to replevy the camper, a secured interest.
ORDER:
Wherefore, the prejudgment application for a writ of replevin is granted and:
The plaintiff, Wells Fargo, may replevy one 2004 Prowler Regal RV 5th Wheel Camper, VIN 1EC5B362644282079 ("camper") in the possession of the defendants;
The agent of the State Marshal is authorized at the direction of the plaintiff to exercise the rights of the plaintiff to secure, remove, inventory and/or safeguard the camper, pursuant to General Statutes § 42a-9-501, et seq. If the camper is removed from the premises of the defendants, it is to be safeguarded and secured at the expense of the plaintiff with any damages to the camper to be at the risk and expense of the plaintiff;
Reasonable notice of a minimum of 48 hours is to be given to the defendants so as to afford the defendants an opportunity to remove any personal items, not commingled goods, from the camper prior to its removal from the defendants' premises; and
A copy of this order is to be served upon the defendants by a state marshal or other indifferent person with return of service to this court.