Rule 3.105 Claim and Delivery

(A) Nature of Action; Replevin. Claim and delivery is a civil action to recover

(1) possession of goods or chattels which have been unlawfully taken or unlawfully detained, and

(2) damages sustained by the unlawful taking or unlawful detention.

A statutory reference to the action of replevin is to be construed as a reference to the action of claim and delivery.

(B) Rules Applicable. A claim and delivery action is governed by the rules applicable to other civil actions, except as provided in MCL 600.2920, and this rule.

(C) Complaint; Joinder of Claims; Interim Payments. A claim and delivery complaint must:

(1) specifically describe the property claimed;

(2) state the value of the property claimed (which will be used only to set the amount of bond and not as an admission of value);

(3) state if the property claimed is an independent piece of property or a portion of divisible property of uniform kind, quality, and value; and

(4) specifically describe the nature of the claim and the basis for the judgment requested.

If the action is based on a security agreement, a claim for the debt may be joined as a separate count in the complaint. If the plaintiff, while the action is pending, receives interim payments equal to the amount originally claimed, the action must be dismissed.

(D) Answer. An answer to a claim and delivery complaint may concede the claim for possession and yet contest any other claim.

(E) Possession Pending Final Judgment.

(1) Motion for Possession Pending Final Judgment. After the complaint is filed, the plaintiff may file a verified motion requesting possession pending final judgment. The motion must

(a) describe the property to be seized, and

(b) state sufficient facts to show that the property described will be damaged, destroyed, concealed, disposed of, or used so as to substantially impair its value, before final judgment unless the property is taken into custody by court order.

(2) Court Order Pending Hearing. After a motion for possession pending final judgment is filed, the court, if good cause is shown, must order the defendant to

(a) refrain from damaging, destroying, concealing, disposing of, or using so as to substantially impair its value, the property until further order of the court; and

(b) appear before the court at a specified time to answer the motion.

(3) Hearing on Motion for Possession Pending Final Judgment.

(a) At least 7 days before a hearing on a motion filed under this subrule, the defendant must be served with

(i) a copy of the motion; and

(ii) an order entered under subrule (E)(2).

(b) At the hearing, each party may present proofs. To obtain possession before judgment, the plaintiff must establish

(i) that the plaintiff’s right to possession is probably valid; and

(ii) that the property will be damaged, destroyed, concealed, disposed of, or used so as to substantially impair its value, before trial.

(c) Adjournment. A court may not

(i) grant an adjournment of this hearing on the basis that a defendant has not yet answered the complaint or the motion filed under this subrule; or

(ii) allow a hearing on this motion if the hearing date has been adjourned more than 56 days with the assent of the plaintiff, unless the plaintiff files a new motion which includes recitations of any payments made by the defendant after the original motion was filed.

(4) Order for Custody Pending Final Judgment. After proofs have been taken on the plaintiff's motion for possession pending final judgment, the court may order whatever relief the evidence requires. This includes:

(a) denying the motion;

(b) leaving the defendant in possession of the property and restraining the defendant from damaging, destroying, concealing, or disposing of the property.

The court may condition the defendant's continued possession by requiring the defendant to

(i) furnish a penalty bond, payable to the plaintiff, of not less than $100 and at least twice the value of the property stated in the complaint; and

(ii) agree that he or she will surrender the property to the person adjudged entitled to possession and will pay any money that may be recovered against him or her in the action;

(c) ordering the sheriff or court officer to seize the property within 21 days and either hold it or deliver it to the plaintiff. The court may condition the plaintiff's possession by requiring the plaintiff to

(i) furnish a penalty bond payable to the defendant, and to the sheriff or court officer, of not less than $100 and at least twice the value of the property stated in the complaint; and

(ii) agree that he or she will surrender the property to the person adjudged entitled to possession, diligently prosecute the suit to final judgment, and pay any money that may be recovered against him or her in the action.

A bond required in a claim and delivery action must be approved by and filed with the court within the time the order provides.

(F) Seizure. A copy of an order issued under subrule (E)(4)(c) must be delivered to the sheriff or court officer, who must

(1) seize the property described in the order;

(2) serve a copy of the order on the defendant, under MCR 2.107; and

(3) file a return with the court showing seizure and service.

(G) Custody; Delivery. After seizing the property, the sheriff or court officer shall keep it in a secure place and deliver it in accordance with the court order. The sheriff or court officer is entitled to receive the lawful fees for seizing the property and the necessary expenses for seizing and keeping it.

(H) Judgment.

(1) The judgment must determine

(a) the party entitled to possession of the property,

(b) the value of the property,

(c) the amount of any unpaid debt, and

(d) any damages to be awarded.

(2) If the property is not in the possession of the party who is entitled to possession, a judgment must order the property to be immediately delivered to that party.

(3) If the action is tried on the merits, the value of the property and the damages are determined by the trier of fact.

(4) If the defendant has been deprived of the property by a prejudgment order and the main action is dismissed, the defendant may apply to the court for default judgment under MCR 2.603.

(5) If the plaintiff takes a default judgment, the value of the property and the damages are determined under MCR 2.603. A defendant who appeared at a show-cause proceeding is deemed to have filed an appearance.

(6) The party adjudged entitled to possession of the property described may elect to take judgment for the value of the property instead of possession. The judgment value may not exceed the unpaid debt, if any, secured by such property.

(7) The liability of a surety on a bond given under this rule may be determined on motion under MCR 3.604.

(I) Costs. Costs may be taxed in the discretion of the court. Costs may include the cost of a bond required by the court, and the costs of seizing and keeping the property.

(J) Execution.

(1) The execution issued on a judgment in a claim and delivery action must command the sheriff or court officer

(a) to levy the prevailing party's damages and costs on the property of the opposite party, as in other executions against property; and

(b) if the property described in the judgment is found in the possession of the defendant, to seize the property described in the judgment and deliver it to the prevailing party; or, if the property is not found in the possession of the defendant, to levy the value of it. The value may not exceed the total of the unpaid debt, costs, and damages.

(2) Execution may not issue on a judgment in a claim and delivery action if more than 28 days have passed from the signing of the judgment, unless

(a) the plaintiff files a motion for execution which must include, if money has been paid on the judgment, the amount paid and the conditions under which it was accepted; and

(b) a hearing is held after the defendant has been given notice and an opportunity to appear.