TITLE LV
PROCEEDINGS IN SPECIAL CASES

Chapter 536-A
REPLEVIN

Section 536-A:1

    536-A:1 Personal Property. – A party may recover possession of personal property wrongfully taken or detained by applying to the superior court, or concurrently to a district court where the value of the property is within the jurisdictional amount of a district court, for a writ of replevin in accordance with the provisions of this chapter.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:2

    536-A:2 Complaint. –
The complaint or application shall be executed under penalties of perjury or be verified by oath and shall state:
I. That the applicant is the owner of the property claimed or entitled to the possession thereof and the source of such title or right and shall attach thereto a copy of any written instrument upon which such title or right is claimed.
II. The manner in which the property is wrongfully detained by the defendant, the means by which the defendant came into possession of the property and the cause of such detention.
III. A particular description of the property, a statement of its actual value, the location of the property and the name and address of the defendant and any other person in possession of the property.
IV. Whether or not the property is exempt from execution, and the name and address of any known lienholder.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:3

    536-A:3 Preliminary Notice to Show Cause. – The court shall, without delay, issue an order directed to the defendant to show cause why the property should not be taken from the defendant and delivered to the applicant. Such order shall fix the date and time for the hearing thereon, which ordinarily shall be no sooner than ten days nor later than twenty days from the issuance of the order, and shall direct the time within which service thereof shall be made upon the defendant. Such order shall inform the defendant that he may file affidavits on his behalf with the court and may appear and present testimony on his behalf at the time of such hearing, or that he may, at or prior to such hearing, file with the court a written undertaking to stay the delivery of the property and that, if he fails to appear, the court will issue a writ of replevin. Such order shall fix the manner in which service thereof shall be made, which shall be by personal service or certified mail, return receipt requested, or in such other manner as the court may determine under the circumstances appearing from the complaint and affidavit.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:4

    536-A:4 Temporary Restraining Order. – Such preliminary notice issued pursuant to RSA 536-A:3 shall include a temporary order restraining the defendant from removing the property from the state or otherwise from its location, or transferring, selling, pledging, assigning or otherwise altering, damaging, disposing of, or permitting it to become subject to a security interest or lien, until further order of the court.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:5

    536-A:5 Show Cause Hearing. – If the defendant fails to appear at the preliminary hearing, a writ of replevin shall issue. Otherwise, upon the hearing on the order to show cause, the court shall consider the showing made by the parties appearing, and shall 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. If the court determines that the action is one in which a prejudgment writ of replevin should issue, it shall direct the issuance of such writ forthwith.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:6

    536-A:6 Entry of Private Premises. – A writ of replevin shall not issue to enter the private premises or a building for the purpose of seizure of property unless the court shall first determine from competent evidence that there is probable cause to believe that the property or some part thereof is located on or in the private premises or building and the applicant is entitled to its possession.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:7

    536-A:7 Security. –
I. A writ of replevin shall not issue at any stage of the proceedings until the applicant has filed with the court a written undertaking executed by the applicant and secured by a proper assignment or conveyance of one or more sufficient securities, approved by the court, in an amount of double the value of the property, as determined by the court, to prosecute the applicant's action to completion and, alternatively, for the return of the property to the defendant, if return thereof be ordered, and for the payment to the defendant of any sum as may from any cause arising out of the action be recovered against the applicant.
II. For purposes of this section, securities may include, but shall not be limited to, bonds, letters of credit, security interests, or cash in a form and amount acceptable to the court.

Source. 1973, 467:1. 1999, 132:1, eff. Jan. 1, 2000.

Section 536-A:8

    536-A:8 Writ Content. – The writ of replevin shall be directed to a sheriff, constable, or police officer within whose jurisdiction the property is located. It shall describe the specific property to be seized, and shall specify the location or locations where, as determined by the court from all the evidence, there is probable cause to believe the property or some part thereof will be found. It shall direct the levying officer to seize the same if it is found, and to retain it in his custody. Upon probable cause later shown by further affidavit or declaration by applicant or someone on his behalf, filed with the court, a writ of replevin may be endorsed by the court, without further notice, to direct the levying officer to search for the property at another location or locations and to seize the same, if found.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:9

    536-A:9 Powers of Officer. – The levying officer shall forthwith take the property, if it be in the possession of the defendant or his agent, and retain it in his custody, either by removing the property to a place of safekeeping or, upon good cause shown, by installing a keeper. Provided that, when the property is used as a dwelling, such as a housetrailer, mobile home, or boat, the same shall be taken by placing a keeper in charge of the property, at the applicant's expense, for two days. At the expiration of such period, the officer shall remove its occupants and take the property into his immediate custody.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:10

    536-A:10 Property Within a Building. – If the property or any part thereof is in a building or enclosure, the levying officer shall demand its delivery, announcing his identity, purpose, and the authority under which he acts. If the property is not voluntarily delivered, he shall cause the building or enclosure to be broken open in such manner as he reasonably believes will cause the least damage to the building or enclosure, and take the property into his possession. He may call upon any sheriff or police officer to aid and protect him, but if he reasonably believes that entry and seizure of the property will involve a substantial risk of death or serious bodily harm to any person, he shall refrain from seizing the property, and shall forthwith make a return before the court from which the writ issued, setting forth the reasons for his belief that such risk exists. The court thereupon shall make such orders and decrees as may be appropriate.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:11

    536-A:11 Service. – The levying officer shall, without delay, serve upon the defendant a copy of the writ of replevin and written undertaking, the complaint and affidavit, by delivering the same to him personally, if he can be found, or to his agent from whose possession the property is taken; or, if neither can be found, by leaving them at the usual place of abode of either with some person of suitable age and discretion; or, if neither have any known place of abode, by mailing them to their last known address.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:12

    536-A:12 Ex Parte Issuance of Writ. –
Upon specific request of the applicant and examination of the complaint and affidavit and such other evidence or testimony as the judge may thereupon require, a writ of replevin may be issued prior to hearing, if probable cause appears that any of the following exist:
I. The defendant gained possession of the property by theft;
II. The property consists of one or more negotiable instruments or credit cards;
III. By reason of specific, competent evidence shown, by affidavit or by testimony within the personal knowledge of an affiant or witness, the property is perishable, and will perish before any noticed hearing can be had, or is in immediate danger of destruction, serious harm, concealment, or removal from this state, or of sale to an innocent purchaser, and that the holder of such property threatens to destroy, harm, conceal, remove it from the state, or sell it to an innocent purchaser.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:13

    536-A:13 Shortened Hearing. – Where a writ of replevin has been issued ex parte and prior to hearing, the defendant or other person from whom possession of such property has been taken may apply to the court for an order shortening the time for hearing on the order to show cause; and the court may, upon such application, shorten the time for such hearing, and direct that the matter shall be heard on not less than forty-eight hours' notice to the plaintiff.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:14

    536-A:14 Retention of Property Upon Filing Security. –
I. At any time prior to the hearing of the order to show cause, or before the delivery of the property to the plaintiff, the defendant may require the return thereof upon filing with the court a written undertaking executed by the defendant and secured by a proper assignment or conveyance of one or more sufficient securities, approved by the court, to the effect that the defendant shall be bound in double the value of the property, as stated in the verified complaint of the applicant, or as determined by the court, for the delivery thereof to the applicant and for the payment to the applicant of such sum as may for any cause be recovered against the defendant. At the time of filing such undertaking, the defendant shall serve upon the applicant or the applicant's attorney a notice of filing of such undertaking, to which a copy of such undertaking shall be attached, and shall cause proof of service thereof to be filed with the court. If such undertaking be filed prior to hearing of the order to show cause, proceedings thereunder shall terminate, unless exception is taken to the adequacy or sufficiency of the securities. If, at the time of filing of such undertaking, the property shall be in the custody of the levying officer, such property shall be redelivered to the defendant 5 days after service of notice of filing such undertaking unless objected to by the applicant or the applicant's attorney.
II. For purposes of this section, securities may include, but shall not be limited to, bonds, letters of credit, security interests, or cash in a form and amount acceptable to the court.

Source. 1973, 467:1. 1999, 132:2, eff. Jan. 1, 2000.

Section 536-A:15

    536-A:15 Officer Exempt From Liability. – Any officer shall be exempt from liability to any person when acting in the proper performance of the directions of the court issued hereunder. He may require advance payment from a party of his costs of repossession and storage reasonably to be anticipated and, in any event, shall have a lien on the property repossessed for payment of the same.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:16

    536-A:16 Delivery of Possession. – When the levying officer has taken property as provided in this chapter, he shall keep it in a secure place and deliver it to the party preliminarily determined to be entitled thereto, upon receiving his fees for taking and his necessary expenses for keeping the same, after expiration of the time for filing of an undertaking for redelivery and for exception to the sureties upon any undertaking, unless the court shall by order stay such delivery.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:17

    536-A:17 Return. – The levying officer shall return the writ of replevin, with his proceedings thereon, to the court in which the action is pending, within twenty days after taking the property mentioned in the writ.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:18

    536-A:18 Judgment for Defendant. – If the defendant shall prevail, he shall have judgment for the return of such personal property or part thereof, if he so elects, as remains in the possession of the applicant and such further damages as may be awarded him.

Source. 1973, 467:1, eff. Aug. 29, 1973.

Section 536-A:19

    536-A:19 Contempt. – The provisions of this chapter shall apply to all cases of wrongful detention, including property attached in other actions of replevin or pursuant to other process of law and may be initiated at any stage of the proceedings and any violation of orders of the court issued hereunder may be punished by contempt.

Source. 1973, 467:1, eff. Aug. 29, 1973.