If you are a creditor that financed the purchase of personal property such as a mobile home or automobile and retained a security interest in the property as collateral, what remedies are available to you when the debtor defaults on his or her repayment obligation and won't voluntarily relinquish possession of the collateral? Will you be able to repossess the collateral, and how will you do it? Look to Martin & Seibert, L.C. We are a full-service law firm and can handle all of your collection needs, including repossessions of secured collateral.

Fortunately, West Virginia law provides relief for a creditor caught in just this type of predicament. A Detinue action may be filed either alone or along with an action requesting a money judgment.

Once a Detinue action is filed, a prejudgment hearing is quickly set by the Court. At the prejudgment hearing, the Court conducts a broad inquiry into the nature of the right of the Plaintiff to immediate possession and of the Defendant, if any, to keep possession of the property. During this inquiry, the Plaintiff must satisfy the Court that it has a property interest in the property at issue, it has a right to immediate possession, that the property is of some value and that the Defendant had possession of the property at some point prior to suit.

If the Court concludes that there is a substantial probability that the Plaintiff will prevail on the merits at trial, the Court may order the posting of an indemnity bond by the Plaintiff for the benefit of a designated officer, usually the sheriff, and order that the property at issue be seized by that officer. If the Defendant executes an indemnity bond for the benefit of the Plaintiff, he or she can redeem the property from the officer's custody. If the Defendant does not take any action within three days of the repossession by the Court's officer, the officer is required to turn the property over to the possession of the Plaintiff.

The Court will schedule a final hearing for some point in the future. At this final hearing, a trial on the merits of the issue will be heard, and a verdict will be rendered by the judge or jury just as in an ordinary civil action. If the Defendant prevails, the bond posted by the Plaintiff will be used to compensate the Defendant for the wrongful taking of his property. If the Plaintiff prevails and had possession of the property, the issue is closed. If the Plaintiff prevails and the Defendant had redeemed the property by its own indemnity bond, the Plaintiff will be compensated for any losses it suffered as a result of the Defendant's wrongful possession of the collateral.