United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
M. BORDEN UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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
(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 ...