CHAPTER 2. REPLEVIN
IC 32-35-2
Chapter 2. Replevin
IC 32-35-2-1
Grounds for action
Sec. 1. If any personal goods, including tangible personal propertyconstituting or representing choses in action, are:
(1) wrongfully taken or unlawfully detained from the owner orperson claiming possession of the property; or
(2) taken on execution or attachment and claimed by any personother than the defendant;
the owner or claimant may bring an action for the possession of theproperty.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-2
Claim for immediate delivery
Sec. 2. A plaintiff may, at the time of issuing the summons, or atany time before final judgment, claim the immediate delivery ofproperty described in section 1 of this chapter.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-3
Filing affidavit
Sec. 3. If a plaintiff claims delivery under section 2 of thischapter, the plaintiff or someone representing the plaintiff shall filean affidavit.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-4
Contents of affidavit
Sec. 4. An affidavit filed under section 3 of this chapter must:
(1) show that the plaintiff is:
(A) the owner of the property; or
(B) lawfully entitled to the possession of the property;
(2) show that:
(A) the property was not:
(i) taken for a tax, assessment, or fine under a statute; or
(ii) seized under an execution or attachment against theproperty of the plaintiff; or
(B) if the property was seized under an execution orattachment, the property was exempt by statute from seizure;
(3) show that the property:
(A) has been wrongfully taken and is unlawfully detained bythe defendant; or
(B) is unlawfully detained;
(4) include a particular description of the property;
(5) state the estimated value of the property; and
(6) identify the county in which the property is believed to bedetained.As added by P.L.2-2002, SEC.20.
IC 32-35-2-5
Issuance of show cause order
Sec. 5. If a plaintiff files an affidavit under section 3 of thischapter, the clerk shall issue an order for a time fixed by the judgedirecting the defendant to appear for the purpose of controvertingplaintiff's affidavit or to otherwise show cause why:
(1) a prejudgment order for possession should not issue; and
(2) the property should not be delivered to plaintiff.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-6
Date, time, and place for hearing
Sec. 6. (a) An order issued under section 5 of this chapter must setforth the date, time, and place for the hearing and direct the timewithin which service shall be made upon the defendant.
(b) The hearing shall be scheduled not sooner than five (5) days,Sundays and holidays excluded, after the date of service.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-7
Notice to defendant
Sec. 7. An order to show cause issued under section 5 of thischapter must inform the defendant that:
(1) the defendant may:
(A) file affidavits on the defendant's behalf with the court;
(B) appear and present testimony on the defendant's behalfat the time of the hearing; and
(C) file with the court a written undertaking to stay thedelivery of the property in accordance with this article; and
(2) if the defendant fails to appear, plaintiff may be granted ajudgment of possession.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-8
Order for possession after examining pleadings and evidence
Sec. 8. The court may issue an order for possession under thischapter after examining the complaint, affidavits, and other evidenceor testimony that the court may require.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-9
Order for possession before hearing; grounds
Sec. 9. The court may issue an order for possession under thischapter before the hearing if probable cause appears that any of thefollowing subdivisions apply:
(1) The defendant gained possession of the property by theft orcriminal conversion.
(2) The property consists of one (1) or more negotiable
instruments or credit cards.
(3) By reason of specific, competent evidence shown bytestimony within the personal knowledge of an affiant orwitness, the property is:
(A) perishable, and will perish before any noticed hearingcan be had;
(B) in immediate danger of destruction, serious harm,concealment, removal from Indiana, or sale to an innocentpurchaser; or
(C) held by a person who threatens to destroy, harm, orconceal the property, remove the property from Indiana, orsell the property to an innocent purchaser.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-10
Order for possession without notice; grounds
Sec. 10. Before the court may issue an order for possessionwithout notice under section 12 of this chapter, the plaintiff or theplaintiff's attorney must file an affidavit or certificate showing:
(1) the efforts, if any, that have been made to give notice; and
(2) the reasons why notice of the application for the ordercannot be given.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-11
Application to shorten time for show cause hearing
Sec. 11. (a) If an order of possession was issued before a hearingunder this chapter (or IC 34-1-9.1-4 or IC 34-21-4-4 before theirrepeal), the defendant or other person from whom possession of theproperty was taken may apply to the court for an order shortening thetime for hearing on the order to show cause.
(b) The court may, upon an application made under subsection(a):
(1) shorten the time until the hearing; and
(2) direct that the matter shall be heard on not less thanforty-eight (48) hours notice to the plaintiff.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-12
Sheriff or other executing officer to hold property
Sec. 12. An order of possession issued under this chapter withoutnotice shall direct the sheriff or other executing officer to hold theproperty until further order of the court.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-13
Issuance of preliminary order and temporary restraining order
Sec. 13. Under any of the circumstances set forth in this chapter,or instead of the immediate issuance of an order of possession underthis chapter, the judge may, in addition to issuing a preliminary
order, issue a temporary restraining order directed to the defendantprohibiting certain acts with respect to the property if the issuance ofthe order appears to be necessary for the preservation of the rights ofthe parties and the status of the property.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-14
Hearing on preliminary order
Sec. 14. Upon the hearing on the preliminary order under thischapter, the court shall:
(1) consider the showing made by the parties appearing; and
(2) make a preliminary determination which party, withreasonable probability, is entitled to possession, use, anddisposition of the property, pending final adjudication of theclaims of the parties.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-15
Prejudgment order of possession
Sec. 15. If the court determines, in an action under this chapter,that a prejudgment order of possession in the plaintiff's favor shouldissue, the court shall issue the order.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-16
Appointment of receiver
Sec. 16. If the property claimed by the plaintiff in an action underthis chapter has a peculiar value that cannot be compensated bydamages, the court may, instead of issuing an order of possession,appoint a receiver to take possession of and hold the property untilfurther order of the court.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-17
Failure of defendant to appear
Sec. 17. If the defendant in an action under this chapter fails toappear, the court may enter its final judgment with respect topossession as in other cases where there is a default for a failure toappear.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-18
Order of possession; contents
Sec. 18. An order of possession issued under this chapter must:
(1) be directed to the sheriff or other officer charged with theexecution of the order within whose jurisdiction the property isbelieved to be located;
(2) describe the property to be seized; and
(3) direct the executing officer to:
(A) seize the property if it is found; (B) take the property into custody; and
(C) deliver the property to the plaintiff, unless:
(i) the order was issued without notice; or
(ii) the defendant files a written undertaking in accordancewith section 7(1)(C) of this chapter within a time fixed bythe court.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-19
Final judgment; contents
Sec. 19. If the order issued in an action under this chapter is afinal judgment:
(1) the court does not need to fix a time for the defendant to filea written undertaking;
(2) the order must direct immediate delivery to the plaintiff;
(3) a copy of any written undertaking filed by the plaintiff mustbe attached to the order; and
(4) the order must inform the defendant that the defendant hasthe right to:
(A) except to the surety upon the undertaking; or
(B) file a written undertaking for the redelivery of theproperty as provided in section 7(1)(C) of this chapter.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-20
Final judgment to supersede all preceding orders
Sec. 20. Any:
(1) order for possession;
(2) temporary restraining order;
(3) prejudgment order for possession; or
(4) other preliminary transfer of possession;
issued under this article (or IC 34-1-9.1 or IC 34-21 before theirrepeal) is superseded by the final judgment rendered in an actionunder this chapter.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-21
Plaintiff's bond required
Sec. 21. (a) Except as provided in subsection (c), the court maynot issue an order of possession, with or without notice, in theplaintiff's favor in an action under this chapter until the plaintiff hasfiled with the court a written undertaking:
(1) in an amount fixed by the court; and
(2) executed by a surety to be approved by the court;
to the effect that the plaintiff and the surety are bound to thedefendant for the value of the property, as determined by the court,along with other damages the defendant may suffer if the propertyhas been wrongfully taken from the defendant.
(b) The amount of the bond may not be less than the value of theproperty. (c) If the defendant has failed to appear and final judgment isentered, no written undertaking is required.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-22
Return of property to defendant; bond
Sec. 22. (a) In an action under this chapter, the defendant:
(1) at any time before the hearing on the preliminary order; or
(2) if final judgment has not been entered, within the time fixedin the order of possession;
may require the return of the property upon filing with the court awritten undertaking executed by a surety to be approved by the court.
(b) The written undertaking must provide that the defendant isbound:
(1) as to the value of the property, as determined by the court,for the delivery of the property to the plaintiff, if delivery isultimately ordered; and
(2) for the payment to plaintiff of the sum that may berecovered against the defendant in the action for the defendant'swrongful detention of the property.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-23
Service of notice by defendant of filing of bond
Sec. 23. At the time of filing an undertaking under section 22 ofthis chapter, the defendant must:
(1) serve upon the executing officer and the plaintiff or theplaintiff's attorney a notice of filing of the undertaking; and
(2) file proof of service of the notice referred to in subdivision(1) with the court.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-24
Effect of defendant's bond on show cause proceedings
Sec. 24. If the defendant files an undertaking under section 22 ofthis chapter before the hearing of the order to show cause,proceedings under the order to show cause terminate, unlessexception is taken to the surety.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-25
Redelivery of property to defendant from executing officer
Sec. 25. If the property is in the custody of the executing officerat the time the defendant files an undertaking under section 22 of thischapter, the property shall be redelivered to the defendant not laterthan five (5) days after the date of service of notice of the filing ofthe undertaking upon the plaintiff or the plaintiff's attorney.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-26 Action in replevin against officer; procedure
Sec. 26. (a) If:
(1) any officer, by virtue of any writ of attachment or executionlawfully issued to the officer, attaches or levies upon anypersonal property as the property of the attachment or executiondefendant; and
(2) any other person, firm, limited liability company, orcorporation brings an action in replevin against the officer forthe possession of any part of the property attached or leviedupon;
as soon as process is served upon the officer, the officer may notifythe attachment or execution plaintiff, if a resident of the officer'scounty, and if not a resident of the officer's county, then the attorneyof the plaintiff, in writing, of the replevin suit, giving a generaldescription of the property claimed by the replevin plaintiff in thesuit, and may demand of the attachment or execution plaintiff a bondto indemnify the officer against any loss for attorney's fees incurredin the defense of the replevin suit and payment of any judgment fordamages and costs.
(b) Upon failure of the attachment or execution plaintiff toexecute the bond to the officer within five (5) days after the time ofservice of the notice described in subsection (a) with good andsufficient surety, the officer may deliver up any part of the propertysued for in the replevin suit to the replevin plaintiff.
(c) If the bond demanded under subsection (a) is not given and theofficer delivers the property to the replevin plaintiff, the attachmentor execution plaintiff is estopped from maintaining any actionwhatever against the officer for the value of the property deliveredup or for damages for failing to make any defense in the replevinsuit. However, if the action in replevin is pending in the circuit court,the bond shall be approved by the clerk of the circuit court.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-27
Delivery to defendant in open court
Sec. 27. If the defendant or the defendant's attorney is in opencourt at the time the order of possession is issued under this chapter,a copy of the order shall be delivered promptly to the defendant andthe delivery shall be noted in the order book.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-28
Service by sheriff or other executing officer
Sec. 28. If the defendant and the defendant's attorney are notpresent in open court when the order of possession is issued underthis chapter, sufficient copies of the order shall be delivered to thesheriff or other executing officer. The executing officer shall,without delay, serve upon the defendant a copy of the order ofpossession:
(1) by delivering the order of possession to: (A) the defendant personally; or
(B) the defendant's agent from whose possession theproperty is taken;
(2) if the defendant or the defendant's agent cannot be found, byleaving it at the usual place of abode of either with some personof suitable age and discretion; or
(3) if neither the defendant nor the defendant's agent has anyknown usual place of abode, by mailing it to the defendant's lastknown address.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-29
Taking immediate custody of property; exception for vehicle orboat used as defendant's dwelling
Sec. 29. (a) Upon serving on the defendant a copy of the order ofpossession under section 28 of this chapter, the executing officer,except as provided in subsection (b), shall immediately take theproperty into custody if the property is in the possession or controlof the defendant or the defendant's agent.
(b) If the property is a housetrailer, recreational vehicle, motor ormobile home, or boat and is being used as the principal dwelling ofa defendant, at the expiration of forty-eight (48) hours after the orderof possession is served, the officer shall immediately remove theproperty's occupants and take the property into custody.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-30
Taking possession of building or enclosure
Sec. 30. If the property or any part of the property that is subjectto an order of possession issued under this chapter is:
(1) in a building or enclosure; and
(2) not voluntarily delivered;
the executing officer shall cause the building or enclosure to bebroken open in a manner the officer reasonably believes will causethe least damage to the building or enclosure and take possession ofthe property.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-31
Safekeeping and delivery of property; expenses
Sec. 31. An executing officer who has taken property subject toan order of possession issued under this chapter shall:
(1) keep it in a secure place; and
(2) deliver it to the party entitled to the property upon receivingactual, reasonable, and necessary expenses for keeping theproperty.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-32
Order of possession; endorsement and return to court Sec. 32. After taking property subject to an order of possessionissued under this chapter, an executing officer shall:
(1) note the executing officer's proceedings in writing upon theorder of possession; and
(2) return the order of possession to the court in which theaction is pending;
within five (5) days after taking the property mentioned in the order.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-33
Judgment for plaintiff; contents
Sec. 33. In an action to recover the possession of personalproperty, judgment for the plaintiff may be for:
(1) the delivery of the property, or the value of the property incase delivery is not possible; and
(2) damages for the detention of the property.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-34
Judgment for defendant; contents
Sec. 34. In an action to recover the possession of personalproperty, if the property has been delivered to the plaintiff and thedefendant claims a return of the property, judgment for the defendantmay be for:
(1) the return of the property, or its value, in case return is notpossible; and
(2) damages for the taking and withholding of the property.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-35
Assessment of value of property and damages
Sec. 35. In actions for the recovery of specific personal property,the jury must assess:
(1) the value of the property; and
(2) the damages for the taking or detention of the property;
when the jury's verdict results in a judgment for the recovery orreturn of the property.
As added by P.L.2-2002, SEC.20.