2015 Indiana Code TITLE 32. PROPERTY ARTICLE 35. CAUSES OF ACTION CONCERNING PERSONAL PROPERTY CHAPTER 2. REPLEVIN
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IC 32-35-2
Chapter 2. Replevin
IC 32-35-2-1
Grounds for action
Sec. 1. If any personal goods, including tangible personal property
constituting or representing choses in action, are:
(1) wrongfully taken or unlawfully detained from the owner or
person claiming possession of the property; or
(2) taken on execution or attachment and claimed by any person
other than the defendant;
the owner or claimant may bring an action for the possession of the
property.
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 at
any time before final judgment, claim the immediate delivery of
property 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 this chapter,
the plaintiff or someone representing the plaintiff shall file an
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 the
property of the plaintiff; or
(B) if the property was seized under an execution or
attachment, the property was exempt by statute from seizure;
(3) show that the property:
(A) has been wrongfully taken and is unlawfully detained by
the defendant; or
(B) is unlawfully detained;
(4) include a particular description of the property;
(5) state the estimated value of the property; and
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(6) identify the county in which the property is believed to be
detained.
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 this
chapter, the clerk shall issue an order for a time fixed by the judge
directing the defendant to appear for the purpose of controverting
plaintiff'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 set
forth the date, time, and place for the hearing and direct the time
within 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 this
chapter 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 behalf
at the time of the hearing; and
(C) file with the court a written undertaking to stay the
delivery of the property in accordance with this article; and
(2) if the defendant fails to appear, plaintiff may be granted a
judgment 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 this
chapter after examining the complaint, affidavits, and other evidence
or 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 this
chapter before the hearing if probable cause appears that any of the
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following subdivisions apply:
(1) The defendant gained possession of the property by theft or
criminal conversion.
(2) The property consists of one (1) or more negotiable
instruments or credit cards.
(3) By reason of specific, competent evidence shown by
testimony within the personal knowledge of an affiant or
witness, the property is:
(A) perishable, and will perish before any noticed hearing
can be had;
(B) in immediate danger of destruction, serious harm,
concealment, removal from Indiana, or sale to an innocent
purchaser; or
(C) held by a person who threatens to destroy, harm, or
conceal the property, remove the property from Indiana, or
sell 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 possession
without notice under section 12 of this chapter, the plaintiff or the
plaintiff’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 order
cannot 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 hearing
under this chapter (or IC 34-1-9.1-4 or IC 34-21-4-4 before their
repeal), the defendant or other person from whom possession of the
property was taken may apply to the court for an order shortening the
time 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 than
forty-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 without
notice shall direct the sheriff or other executing officer to hold the
property until further order of the court.
As added by P.L.2-2002, SEC.20.
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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 under
this chapter, the judge may, in addition to issuing a preliminary order,
issue a temporary restraining order directed to the defendant
prohibiting certain acts with respect to the property if the issuance of
the order appears to be necessary for the preservation of the rights of
the 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 this
chapter, the court shall:
(1) consider the showing made by the parties appearing; and
(2) make a preliminary determination which party, with
reasonable probability, is entitled to possession, use, and
disposition of the property, pending final adjudication of the
claims 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 should
issue, 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 under
this chapter has a peculiar value that cannot be compensated by
damages, the court may, instead of issuing an order of possession,
appoint a receiver to take possession of and hold the property until
further 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 to
appear, the court may enter its final judgment with respect to
possession as in other cases where there is a default for a failure to
appear.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-18
Order of possession; contents
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Sec. 18. An order of possession issued under this chapter must:
(1) be directed to the sheriff or other officer charged with the
execution of the order within whose jurisdiction the property is
believed 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 accordance
with section 7(1)(C) of this chapter within a time fixed by
the 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 a final
judgment:
(1) the court does not need to fix a time for the defendant to file
a written undertaking;
(2) the order must direct immediate delivery to the plaintiff;
(3) a copy of any written undertaking filed by the plaintiff must
be attached to the order; and
(4) the order must inform the defendant that the defendant has
the right to:
(A) except to the surety upon the undertaking; or
(B) file a written undertaking for the redelivery of the
property 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 their
repeal) is superseded by the final judgment rendered in an action
under 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 may
not issue an order of possession, with or without notice, in the
plaintiff's favor in an action under this chapter until the plaintiff has
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filed 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 the
defendant for the value of the property, as determined by the court,
along with other damages the defendant may suffer if the property
has been wrongfully taken from the defendant.
(b) The amount of the bond may not be less than the value of the
property.
(c) If the defendant has failed to appear and final judgment is
entered, 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 fixed
in the order of possession;
may require the return of the property upon filing with the court a
written undertaking executed by a surety to be approved by the court.
(b) The written undertaking must provide that the defendant is
bound:
(1) as to the value of the property, as determined by the court,
for the delivery of the property to the plaintiff, if delivery is
ultimately ordered; and
(2) for the payment to plaintiff of the sum that may be recovered
against the defendant in the action for the defendant's wrongful
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 of
this chapter, the defendant must:
(1) serve upon the executing officer and the plaintiff or the
plaintiff'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 of
this chapter before the hearing of the order to show cause,
proceedings under the order to show cause terminate, unless
exception is taken to the surety.
As added by P.L.2-2002, SEC.20.
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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 officer
at the time the defendant files an undertaking under section 22 of this
chapter, the property shall be redelivered to the defendant not later
than five (5) days after the date of service of notice of the filing of the
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 execution
lawfully issued to the officer, attaches or levies upon any
personal property as the property of the attachment or execution
defendant; and
(2) any other person, firm, limited liability company, or
corporation brings an action in replevin against the officer for
the possession of any part of the property attached or levied
upon;
as soon as process is served upon the officer, the officer may notify
the attachment or execution plaintiff, if a resident of the officer's
county, and if not a resident of the officer's county, then the attorney
of the plaintiff, in writing, of the replevin suit, giving a general
description of the property claimed by the replevin plaintiff in the
suit, and may demand of the attachment or execution plaintiff a bond
to indemnify the officer against any loss for attorney's fees incurred
in the defense of the replevin suit and payment of any judgment for
damages and costs.
(b) Upon failure of the attachment or execution plaintiff to execute
the bond to the officer within five (5) days after the time of service
of the notice described in subsection (a) with good and sufficient
surety, the officer may deliver up any part of the property sued for in
the replevin suit to the replevin plaintiff.
(c) If the bond demanded under subsection (a) is not given and the
officer delivers the property to the replevin plaintiff, the attachment
or execution plaintiff is estopped from maintaining any action
whatever against the officer for the value of the property delivered up
or for damages for failing to make any defense in the replevin suit.
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 open
court at the time the order of possession is issued under this chapter,
a copy of the order shall be delivered promptly to the defendant and
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the 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 not
present in open court when the order of possession is issued under
this chapter, sufficient copies of the order shall be delivered to the
sheriff or other executing officer. The executing officer shall, without
delay, serve upon the defendant a copy of the order of possession:
(1) by delivering the order of possession to:
(A) the defendant personally; or
(B) the defendant's agent from whose possession the property
is taken;
(2) if the defendant or the defendant's agent cannot be found, by
leaving it at the usual place of abode of either with some person
of suitable age and discretion; or
(3) if neither the defendant nor the defendant's agent has any
known usual place of abode, by mailing it to the defendant's last
known address.
As added by P.L.2-2002, SEC.20.
IC 32-35-2-29
Taking immediate custody of property; exception for vehicle or
boat used as defendant's dwelling
Sec. 29. (a) Upon serving on the defendant a copy of the order of
possession under section 28 of this chapter, the executing officer,
except as provided in subsection (b), shall immediately take the
property into custody if the property is in the possession or control of
the defendant or the defendant's agent.
(b) If the property is a housetrailer, recreational vehicle, motor or
mobile home, or boat and is being used as the principal dwelling of
a defendant, at the expiration of forty-eight (48) hours after the order
of possession is served, the officer shall immediately remove the
property'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 subject
to 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 be
broken open in a manner the officer reasonably believes will cause
the least damage to the building or enclosure and take possession of
the property.
As added by P.L.2-2002, SEC.20.
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IC 32-35-2-31
Safekeeping and delivery of property; expenses
Sec. 31. An executing officer who has taken property subject to an
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 receiving
actual, reasonable, and necessary expenses for keeping the
property.
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 possession
issued under this chapter, an executing officer shall:
(1) note the executing officer's proceedings in writing upon the
order of possession; and
(2) return the order of possession to the court in which the
action 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 personal
property, judgment for the plaintiff may be for:
(1) the delivery of the property, or the value of the property in
case 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 personal
property, if the property has been delivered to the plaintiff and the
defendant claims a return of the property, judgment for the defendant
may be for:
(1) the return of the property, or its value, in case return is not
possible; 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 or
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return of the property.
As added by P.L.2-2002, SEC.20.
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