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CNH Industrial Capital America, LLC v. Coley

United States District Court, M.D. Alabama, Northern Division

January 30, 2018

CNH INDUSTRIAL CAPITAL AMERICA, LLC, Plaintiff,
v.
JOHN D. COLEY, Defendant.

          MEMORANDUM OPINION AND ORDER

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE

         Before the court is a motion for pre-judgment replevin of property (Doc. 30) filed by Plaintiff CNH Industrial Capital America, LLC (“Capital”). Defendant John C. Coley financed the purchase of certain farming equipment through Capital, but he has stopped making payments under the terms of his retail installment sale contracts because he claims the purchased equipment is defective or not suitable for its intended use. See Doc. 11. As a result, Capital seeks, through the instant motion, immediate possession of the financed equipment. Defendant John D. Coley has opposed the motion. Doc. 32.

         Federal Rule of Civil Procedure 64 provides:

At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment.

Fed. R. Civ. P. 64(a). Replevin-that is, the repossession of personal property that was wrongfully taken-is one of the enumerated types of remedies available under Rule 64. Fed.R.Civ.P. 64(b).

         Alabama Rule of Civil Procedure 64, in turn, provides:

(a) Seizure of person or property. At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by law except that there can be no seizure of property through judicial process prior to the entry of judgment other than by a judicial officer acting pursuant to the procedure set forth in paragraph (b) of this rule.

Ala. R. Civ. P. 64(a). Since the court has not yet entered a judgment in this case, the procedure set forth in Rule 64(b) must be met before Capital's motion could be granted.

         That subsection sets forth the following procedure:

(b) Procedure for seizure of property. Whenever any provision of law is invoked through which there is an attempt to seize property through judicial process prior to the entry of judgment, the procedure on application for such a pre-judgment seizure shall be as follows:
(1) AFFIDAVIT. The plaintiff shall file with the court an affidavit on personal knowledge, except where specifically provided otherwise, containing the following information:
(A) Description of Property. A description of the claimed property that is sufficient to identify the property and its location.
(B) Statement of Title or Right. A statement that the plaintiff is the owner of the claimed property or is entitled to possession of it, describing the source of such title or right and, if the plaintiff's interest in such property is based on a written instrument, a copy of said instrument must be attached to the affidavit.
(C) Statement of Wrongful Detention. A statement of specific facts which show that the property is wrongfully detained by the defendant and a statement of the cause of such detention according to the best ...

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