Frank H. Coxwell, PC

replevin-steps-300x167How can I stop an Order of Replevin? If someone has received an Order of Replevin, (a legal procedure used to recover property) it probably is for property used as collateral on a loan or being purchased through a loan agreement by that person.  The lien holder desires to repossess the property (car, furniture, mobile home, shed, trailer, equipment, etc) and has filed a lawsuit and received an Order of Replevin against the debtor because the debtor refuses to surrender the property voluntarily.

The best way to stop an Order of Replevin is to not let it get to the stage of the Order being issued. You need to address things once the lawsuit has been filed against you by the person/company seeking the Replevin – stopping an order from being issued in the first place. This lawsuit is filed and called a “Writ of Replevin”. When you receive notice of this lawsuit, respond! If you fail to do anything, an Order of Replevin will be issued to the person/company seeking it. You should have received a Replevin Summons (Notice to Appear in Court) and been given 20 days to respond to the lawsuit to fight it. If you fail to respond, the person/company will file for a default judgment.  After the default (or final hearing), the judge will grant the final judgment (Order of Replevin).

Speak with an attorney. You can stop a Writ of Replevin by fighting the lawsuit itself or, if the debt is legitimate and you are behind without the ability to catch up, you can file a Chapter 7 or Chapter 13 Bankruptcy case.  The bankruptcy case will stop the Replevin action in it’s tracks. Depending upon which type of bankruptcy you file, you will either retain and pay under new terms for the property or you will surrender the property at a later date, established through the bankruptcy court process.

Definition of ReplevinRepossession vs Replevin – what is the difference? Click here for definition of Repossession. A Replevin is basically the repossession of collateral (ie: vehicle, furniture, etc) that could not be done without breaching the peace (ie: car locked in garage, furniture locked in house, etc) so the creditor seeks help from the court and this is called a Replevin Order or Writ of Replevin. With a replevin lawsuit, the court provides the creditor an order from the court requiring you to give back the collateral to the creditor. If you do not follow the court order, you will be subject to penalties.

Unlike repossession, a replevin entitles you to some due process before the creditor can take the collateral (property) from you.  This means you must receive written notice of the creditor’s intent to get a replevin order, you have an opportunity for a hearing, you will receive written notice of the time, date, and location of the hearing, and you have the right to dispute and/or respond to the complaint.  The time to respond and/or request a hearing varies by state, but it is typically short.

A replevin can apply to different situations, including a circumstance of where two parties both have rights to the possession of property, but one party might have more rights to that property than the other party. It can also apply to situations where property that has been lawfully withheld but should have been released later to a person, but was not released.

MSDefinition of Statute of Limitations Statutes of Limitations on Civil Matters – MS Code § 15-1 

Of course this 2013 MS Code Title 15 – Limitations of Actions and Prevention of Frauds § 15-1 covers more than just civil statutes, but for the purpose of this discussion, we will focus only on civil statutes, and even more specifically, collection of debt and judgments.   So first of all, what do we mean by civil statute of limitation? The definition is a statute prescribing a period of limitation for the bringing of certain kinds of legal action. In other words, this law sets the maximum amount of time that a party has to initiate legal proceedings against another party they have a dispute with and the time starts from the date of an alleged offense – whether criminal or civil.

Maybe you’ve had a car accident and it’s been a while or you have an old credit card debt, hospital bill, or other issue that you thought was long gone, but you’ve been served papers regarding a new or updated lawsuit. Hasn’t enough time passed? How are they still suing you over this issue?   Collection of Debt on Account is covered under Mississippi Code 15-1-29 and states a 3 year limit.   A Judgement (a lawsuit that was filed against you and was ruled in favor of the company/person that filed against you) is covered under Mississippi Code 15-1-43 and states a 7 year period.  The courts have these limitations in order to create as much fairness and predictability as possible. You have a certain amount of time for legal action to be taken against you and it guarantees that you don’t have unfinished legal matters hanging over your head indefinitely. There are deadlines and all parties must take action accordingly or take no action at all.

Stop RepossessionHow late can I be before repossession will happen?

We get asked this question a lot. I mean A LOT. There is no law that states your property cannot be repossessed unless you are a certain amount of time behind. You can be 1 day behind or 4 months behind. The lender is the one that decides when to take that action and they can take that action the moment you fail to fulfill the loan agreement you have with them.  Different lenders have different policies and procedures.  Know what your lender’s policies and procedures are regarding repossession now.  Don’t wait to know what will happen because it more than likely will catch you by surprise. Hopefully you will never need to know their process and procedure for this – but the saying “knowledge is power” is true.

Most repos occur after two+ months of no payment, but there is NO LAW dictating a set time frame in MS.

Many Americans are asking lately “What if I can’t pay my car loan?” First of all, you’re not alone in the struggle. If you’ve missed car payment or two recently – or worry you might miss one soon – you have options. Typically, missing a car payment will damage your credit score or even lead to your lender repossessing your vehicle. However, most lenders have some type of financial hardship program if you ask for help.  You do have to ask though. And ask ahead of missing a payment, if at all possible.  The worst thing you can do is to ignore the situation and hope it’ll work out on its own in time.  Here’s a look at some options & resources that might help you deal with your car payment.

First, see what assistance your lender has to offer

Find out what kind of programs your bank, credit union or other auto loan lender has available.  Also, get familiar with Mississippi Repossession Laws to know what can and cannot be done. Most of the automakers no longer advertise their payment relief programs. If you are facing missing a payment due to a job loss (from the pandemic or whatever other reason), the best thing to do is to contact your lender. Explain your situation, and hopefully they may be able to offer some short term assistance like a payment deferral, a partial payment option or a lease extension.

Mississippi Repossession Law allows “self-help” repossession. It states that your possessions can be repossessed under the following conditions:

  • You signed an agreement and used the property as collateral for the loan.
  • You failed to honor the terms of the loan agreement (note: the property may be put up for repossession immediately).

The FDIC frequently hears from bank customers who have been or think they were the victims of theft or fraud. The FDIC Consumer News highlighted 10 scams that specifically target bank customers and provided some basic instruction on how to protect your money and personal information in the article I have linked to below.  Be sure to click on “10 schemes”.

The topics included:

  • 10 schemes bank customers should watch out for, beginning with the crime that occurs when thieves pose as government employees with false claims about needing a payment or valuable information, such as Social Security or bank account numbers;

student-loan-fresh-start-actFor a long time now, student loans have been pretty much prohibited from being discharged through bankruptcy.  That could change by the looks of this proposal.  The S.2598 – FRESH START Through Bankruptcy Act has been recently referred to committee.

Why is it so hard, if not impossible, for people to get rid of student loans through bankruptcy now?

Due to a 1976 law, student loans are not allowed to be treated like other forms of debt (ie: credit cards or car loans). This comes from a federal commission on bankruptcy laws that heard testimony claiming the discharge of student loans could damage federal student loan programs. Congress was concerned that students could borrow thousands from the federal government, then graduate, then file bankruptcy, and never repay their student loan debt.

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Are you being haunted by a low credit score? We know how our credit score is a huge part of our financial picture. Having bad credit can cost you money (not qualifying for a particular job) and missed opportunities (paying higher interest rates, higher insurance premiums, and not being able to qualify for loans).  If your credit score has become something that sabotages your financial goals at every turn, fear not. It doesn’t take magic to bring your credit score back to life: just some good old fashioned time and effort that involves clean up of what’s out there and careful movement going forward.

The first thing you should do

Take a good, honest look at your monthly budget. Are your debts far outweighing your income? Can you pay off your debt within a reasonable amount of time without stress, anxiety, lack of sleep, lack of necessities due to working more than 1 job? Before you worry about bringing that credit score up, get your budget into a workable position. If you work on your credit but your income can’t sustain your debt level, you won’t get very far.  We offer free consultations regarding the options that bankruptcy brings to the table.  Bankruptcy can clean the slate and help you to rebuild so much faster.  Typically your score takes a 30-50 point hit when you file, but the clean up and rebuild is so much faster.  You can recover that and build in 12-18 months rather than killing yourself for up to seven years trying to out live the negative items reported.  If your income to debt ratio is under control, then dive right in and get that credit score up!

assistance-programs-300x143There are many state and local programs to help if you are having issues with rent, utilities, or other housing costs for renters and programs to help assist if you are a landlord.  You can visit this website to find programs in your state:

https://www.consumerfinance.gov/coronavirus/mortgage-and-housing-assistance/renter-protections/find-help-with-rent-and-utilities/?utm_source=newsletter&utm_medium=email&utm_campaign=ERAPscams

To apply you must first find a program in your state or local area – each program has their own policies and procedures for their local communities.  Emergency rental assistance could help cover rent, utilities, home energy costs, and other utilities. It could potentially even help cover reasonable late fees, internet, and moving expenses or security deposits for families who have to move. Each program is centered to their local area.

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