REPLEVIN/DETINUE

Replevin has been replaced in Virginia with an action in detinue. Detinue is similar to replevin, except that in a detinue action, the court grants a money judgment and sets a fair market value for the collateral, and gives the debtor between 10 and 30 days to redeem it. Upon failure of the debtor to redeem the item, the Court will issue a Writ of Possession for the specific item. Upon sale of the item, the net amount realized from the sale, after deduction of costs and expenses of the sale will be credited against the money judgment, and execution may issue on any remaining deficiency balance.

Common names of actions similar to detinue are replevin, claim and delivery, pre-judgment attachment, pre-judgment seizure, wrongful distraint, and repossession.

In addition, Virginia has adopted Article 9 of the Uniform Commercial Code, which provides for self-help and other remedies. Va. Code §8.9A-101 et seq.

The creditor is entitled to take possession of the vehicle without judicial process if it can be done without a breach of the peace.

Upon repossession, the creditor may sell or dispose of the vehicle in any commercially reasonable manner. Sale of the vehicle may be by public or private proceeding. The creditor is required to give the borrower reasonable notification of the time and place of the sale. Although “reasonable notification” is not defined, most courts consider notice of 10 working days to be reasonable. The creditor may purchase the vehicle at any public, or at a private sale if the vehicle is a type customarily sold in a recognized market. The proceeds of the sale or other disposition must be applied in order to: the reasonable expenses of retaking the vehicle, costs of the sale reasonable attorney’s fees, satisfaction of the loan and the satisfaction of any other subordinate security interest in the vehicle, if the creditor receives written notice of any such subordinate interest before distribution of the proceeds is completed.

After the sale or other disposition, the creditor is liable to the borrower for any surplus proceeds. The borrower is generally liable to the creditor for any deficiency if the contract so provides.

If the borrower has paid less than 60% of the loan, the creditor may propose to keep the vehicle in full satisfaction of the debt by sending a written notice to the borrower. However, if the creditor receives a written objection to retention within 20 days, the vehicle must be sold at public or private sale, the vehicle must be sold within 90 days of the repossession, or the secured party is liable for certain statutory damages. In all cases where the vehicle is to be sold at public or private sale, the borrower is entitled to redeem the vehicle at any time prior to the disposition of the collateral prior to entry of an agreement for sale of the collateral, or prior to discharge of the obligation by retention of the collateral by the creditor under the UCC.

To redeem the vehicle the borrower must pay the full balance due pursuant to the contract If the contract contains a clause accelerating the entire balance on default, the accelerated balance must be tendered. In addition to tendering the balance due under the contract, the borrower must pay the reasonable expenses the creditor incurred in repossessing the vehicle, holding it, preparing it for sale, and the extent provided in the contract and not prohibited by law, reasonable attorney’s fees and legal expenses. Va. Code §8.9A-601 through 8.9A-628.

Deficiency balances are recoverable. Va. Code §8.9A-615(d)(2).