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§ RULE 104. REPLEVIN

Codes > Colorado Rules of Civil Procedure > Chapter 13 > RULE 104.

RULE 104. REPLEVIN

(a) Personal Property. The plaintiff in an action to recover the possession of personal property may, at the time of the commencement of the action, or at any time before trial, claim the delivery of such property to him as provided in this Rule.

(b) Causes, Affidavit. Where a delivery is claimed, the plaintiff, his agent or attorney, or some credible person for him, shall, by verified complaint or by complaint and affidavit under penalty of perjury show to the court as follows:

(1) That the plaintiff is the owner of the property claimed or is entitled to possession thereof and the source of such title or right; and if plaintiff's interest in such property is based upon a written instrument, a copy thereof shall be attached;

(2) That the property is being detained by the defendant against the plaintiff's claim of right to possession; the means by which the defendant came into 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, and a statement to his best knowledge, information and belief concerning the location of the property and of the residence and business address, if any, of the defendant;

(4) That the property has not been taken for a tax assessment or fine pursuant to a statute; or seized under an execution against the property of the plaintiff; or if so seized, that it is by statute exempt from seizure.

(c) Show Cause Order; Hearing within Ten Days. The court shall without delay, examine the complaint and affidavit, and if it is satisfied that they meet the requirements of section (b), it shall issue an order directed to the defendant to show cause why the property should not be taken from the defendant and delivered to the plaintiff. Such order shall fix the date and time for the hearing thereof. The hearing date shall be not more than ten days from the date of the issuance of the order and the order must have been served at least five days prior to the hearing date. The plaintiff may request a hearing date beyond ten days, which request shall constitute a waiver of the right to a hearing not more than ten days from the date of issuance of the order. Such order shall inform the defendant that he may file affidavits on his behalf with the court and may appear and present testimony in his behalf at the time of such hearing, or that he may, at or prior to such hearing, file with the court a written undertaking to stay the delivery of the property, in accordance with the provisions of section (j) of this rule, and that, if he fails to appear at the hearing on the order to show cause or to file an undertaking, plaintiff may apply to the court for an order requiring the sheriff to take immediate possession of the property described in the complaint and deliver same to the plaintiff. The summons and complaint, if not previously served, and the order shall be served on the defendant and the order shall fix the manner in which service shall be made, which shall be by service in accordance with the provisions of Rule 4, C.R.C.P., or in such manner as the court may determine to be reasonably calculated to afford notice thereof to the defendant under the circumstances appearing from the complaint and affidavit.

(d) Order for Possession Prior to Hearing. Subject to the provisions of section 5-5-104, C.R.S.1973, and upon examination of the complaint and affidavit and such other evidence or testimony as the court may thereupon require, an order of possession may be issued prior to hearing, if probable cause appears that any of the following exist:

(1) The defendant gained possession of the property by theft.

(2) The property consists of one or more negotiable instruments or credit cards.

(3) By reason of specific, competent evidence shown, by testimony with the personal knowledge of an affiant or witness, the property is perishable, and will perish before any noticed hearing can be had, or that the defendant may destroy, dismantle, remove parts from, or in any way substantially change the character of the property, or the defendant may conceal or remove the property from the jurisdiction of the court to sell the property to an innocent purchaser.

(4) That the defendant has by contract voluntarily and intelligently and knowingly waived his right to a hearing prior to losing possession of the property by means of a court order.

Where an order of possession has been issued prior to hearing under the provisions of this section, the defendant or other persons from whom possession of said property has been taken, may apply to the court for an order shortening time for hearing on the order to show cause, and the court may, upon such application, shorten the time for hearing, and direct that the matter shall be heard on not less than forty-eight hours' notice to the plaintiff.

(e) Bond. An order of possession shall not issue pursuant to section (d) of this rule until plaintiff has filed with the court in an amount set by the court in its discretion not to exceed double the value of the property a written undertaking executed by plaintiff and such surety as the court may require for the return of the property to the defendant, if return thereof be ordered, and for the payment to the defendant of any sum that may from any cause be recovered against the plaintiff.

(f) Temporary Order to Preserve Property. Under the circumstances described in section (b) of this Rule, or in lieu of the immediate issuance of an order of possession under any circumstances described in section (d) of this Rule, the court may, in addition to the issuance of the order to show cause, issue such temporary orders, directed to the defendant, prohibiting or requiring such acts with respect to the property as may appear to be necessary for the preservation of the rights of the parties and the status of the property.

(g) Order for Possession after Hearing; Bond; Directed to Sheriff. Upon the hearing on the order to show cause, which hearing shall be held as a matter of course by the court, the court shall consider the showing made by the parties appearing, and shall make a preliminary determination of which party, with reasonable probability, is entitled to possession, use, and disposition of the property pending final adjudication of the claims of the parties. If the court determines that the action is one in which a pre-judgment order of possession should issue, it shall direct the issuance of such order and may require a bond in such amount and with such surety as the court may determine to protect the rights of the parties. Failure of the defendant to be present or represented at the hearing on the order to show cause shall not constitute a default in the main action. The order of possession shall be directed to the sheriff within whose jurisdiction the property is located.

(h) Contents of Possession Order. The order of possession shall describe the specific property to be seized, and shall specify the location or locations where there is probable cause to believe the property or some part thereof will be found. It shall direct the sheriff to seize the same as it is found, and to retain it in his custody. There shall be attached to such order a copy of the written undertaking filed by the plaintiff, and such order shall inform the defendant that he has the right to except to the sureties or to the amount of the bond upon the undertaking or to file a written undertaking for the redelivery of such property as provided in section (j).

Upon probable cause shown by further affidavit or declaration by the plaintiff or someone in his behalf, filed with the court, an order of possession may be endorsed by the court, without further notice, to direct the sheriff to search for the property at another specified location or locations and to seize the same if found.

The sheriff shall forthwith take the property if it be in the possession of the defendant or his agent, and retain it in his custody; except that when the personal property is then occupied as a dwelling [such as but not limited to a mobile home], the sheriff shall take constructive possession of the property and shall remove its occupants and take the property into his actual custody at the expiration of 10 days after the issuance of the order of possession, or at such earlier time as the property shall have been vacated.

(i) Sheriff May Break Building; When. If the property or any part thereof is in a building or enclosure, the sheriff shall demand its delivery, announcing his identity, purpose, and the authority under which he acts. If it is not voluntarily delivered, he shall cause the building or enclosure to be broken open in such manner as he reasonably believes will cause the least damage to the building or enclosure, and take the property into his possession. He may call upon the power of the county to aid and protect him, but if he reasonably believes that entry and seizure of the property will involve a substantial risk of death or serious bodily harm to any person, he shall refrain from seizing the property, and shall forthwith make a return before the court from which the order issued, setting forth the reasons for his belief that such risk exists. The court may make such orders and decrees as may be appropriate.

The sheriff shall, without delay, serve upon the defendant a copy of the order of possession and written undertaking by delivering the same to him personally, if he can be found or to his agent from whose possession the property is taken; or, if neither can be found, by leaving them at the usual place of abode of either with some person of suitable age and discretion; or if neither has any known place of abode, by mailing them to the last known address of either.

(j) When Returned to Defendant; Bond. At any time prior to the hearing on the order to show cause, or before the delivery of the property to the plaintiff, the defendant may require the return thereof upon filing with the court a written undertaking, in an amount set by the court in its discretion not to exceed double the value of the property and executed by the defendant and such surety as the court may direct for the delivery of the property to the plaintiff, if such delivery be ordered, and for the payment to the plaintiff of such sum as may for any cause be recovered against the defendant. At the time of filing such undertaking, the defendant shall serve upon the plaintiff or his attorney, in the manner provided by Rule 5, C.R.C.P., a notice of filing of such undertaking, to which a copy of such undertaking shall be attached, and shall cause proof of service thereof to be filed with the court. If such undertaking be filed prior to hearing on the order to show cause, proceedings thereunder shall terminate, unless exception is taken to the amount of the bond or the sufficiency of the surety. If, at the time of filing of such undertaking, the property shall be in the custody of the sheriff, such property shall be redelivered to the defendant five days after service of notice of filing such undertaking upon the plaintiff or his attorney.

(k) Exception to Sureties. Either party may, within two days after service of an undertaking or notice of filing and undertaking under the provisions of this Rule, give written notice to the court and the other party that he excepts to the sufficiency of the surety or the amount of the bond. If he fails to do so, he is deemed to have waived all objections to them. When a party excepts the court shall hold a hearing to determine the sufficiency of the bond or surety. If the property be in the custody of the sheriff, he shall retain custody thereof until the hearing is completed or waived. If the excepting party prevails at the hearing, the sheriff shall proceed as if no such undertaking had been filed. If the excepting party does not prevail at the hearing, or the exception is waived, he shall deliver the property to the party filing such undertaking.

(l) Duty of Sheriff in Holding Goods. When the sheriff has taken property as provided in this Rule, he shall keep it in a secure place and deliver it to the party entitled thereto, upon receiving his fees for taking and his necessary expenses for keeping the same, after expiration of the time for filing of an undertaking for redelivery and for exception to the sufficiency of the bond, unless the court shall by order stay such delivery.

(m) Claim by Third Person. If the property taken is claimed by any other person than the defendant or plaintiff, such person may intervene under the provisions of Rule 24, C.R.C.P., and in the event of a judgment in his favor, he may also recover such damages as he may have suffered by reason of any wrongful detention of the property.

(n) Return; Papers by Sheriff. The sheriff shall return the order of possession and undertakings and affidavits with his proceedings thereon, to the court in which the action is pending, within twenty days after taking the property mentioned therein.

(o) Precedence on Docket. In all proceedings brought to recover the possession of personal property, all courts, in which such actions are pending, shall, upon request of any party thereto, give such actions precedence over all other civil actions, except actions to which special precedence is otherwise given by law, in the matter of the setting of the same for hearing or trial, and in hearing or trial thereof, to the end that all such actions shall be quickly heard and determined.

(p) Judgment. In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same. The provisions of Rule 13, C.R.C.P., shall apply to replevin actions.