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K.
Action of Claim and Delivery

Claim and delivery is an action for the recovery of specific personal property wrongfully taken or withheld from its rightful owner, with recovery of any damages resulting from the taking or possession of the property. Claim and delivery may not be used to recover ownership of real property, but may only be used to recover goods or personal property. Actions of claim and delivery are proper in the magistrate's court so long as the value of the property to be regained does not exceed the magistrate's jurisdictional amount ($7,500.00). If the property's value exceeds that amount, recovery of the personal property may only be had through an action in the Circuit Court.

Replevin, detinue, and trover are three ancient common law remedies upon which the statutory remedy of claim and delivery is based. Claim and delivery, a mixture of elements of all three, is the statutory remedy found at S.C. Code Ann. § 22-3-1310, et seq.

Claim and delivery borrows from replevin in that it is a remedy which contemplates the recovery of specific personal property when possible. It borrows from the action of trover in that it allows the recovery of the value of the property when delivery of that property is not possible. The primary relief sought in claim and delivery is the return of possession of the specific property and only where the property is not recoverable, or recoverable in a state of repair of substantial value, may the value itself be awarded or recovered. (§ 22-3-1310, et seq., also see Reynolds v. Philips, 72 S.C. 32, 51 S.E. 523, 524 (1905); for recovery of value where recovery of actual property may not be had see Wilkins v. Willimon, 128 S.C. 509, 122 S.E. 503 (1924)).

Only certain property is subject to recovery through claim and delivery. The property must be personal, rather than real property. It must be "moveable and capable of identification," and certainly must be in existence and of substance able to be seized. (See 18 S.C. Law Quarterly 240).

A claim and delivery action cannot be maintained by one who does not have a general or specific property interest in the thing taken or detained. This means that in order for a party to be able to maintain an action for claim and delivery, the plaintiff at the time of commencement of the suit must be entitled to the immediate possession, and may not recover on the weakness of his adversary's title or right possession. (See 18 S.C. L.Q. 240 at 244, also Byrd v. O'Hanlin, 1 Mill. Const. 401 (S.C. 1817)).

A common illustration of a proper claim and delivery action is where a security agreement, installment contract, or an installment has been signed for the purchase of an automobile and there has been a default in payments by the purchaser. Provisions in the security agreement or installment contract that allow the seller or lender to take immediate possession of the automobile when the buyer defaults and wrongfully detains it are enforced by an action of claim and delivery, if the value of the car is $7,500.00 or less.

It is essential that magistrates understand that claim and delivery is not proper in general sales contracts in which no reservation of title is retained by the seller (where no specific property is used as collateral), nor may it properly be used to collect a debt or an unpaid portion of a sales agreement.

Another example of a situation in which a claim and delivery action is proper is one in which the property has been loaned to or borrowed by someone other than the owner, and the person in possession refuses to return the property to the owner.

1. Jurisdiction and Venue

Because claim and delivery is an action in which jurisdiction depends on the location of the property sought, the property must be within the state. Venue (the proper place for the matter to be initiated or determined) is only proper in the county in which the property is located; however, note that a diligent effort at service of the summons and pleadings on the defendant must be made. (See 18 S.C.L.Q. 240, at 245).

2. Claiming Delivery

When the recovery of personal property is desired, the plaintiff may institute an action of claim and delivery along with the action that will ultimately determine ownership of the personal property. The claim and delivery action may be of several types, each distinguishable from the other by its effect on the possession of the personal property and the immediacy of dispossession.

A reasonable interpretation of the claim and delivery statutes reveal four basic actions:

1) Claim and delivery upon showing of danger or destruction or concealment (§ 22-3-1380); upon a determination by magistrate, based upon affidavit, property may be immediately seized and held by officer. (This is true immediate dispossession).

2). Claim and delivery upon showing of waiver (§ 22-3-1360); upon showing of knowing and voluntary waiver by person in possession, shown by claimant by affidavit, magistrate may order delivery of property to plaintiff-claimant. (This is the only true situation of immediate delivery to plaintiff - this will normally be based on a waiver clause in a written contract).

3) Claim and delivery for immediate dispossession (§ 22-3-1330); Defendant in possession is given notice of a right to a preseizure hearing which must be requested within 5 days of date of service or at the end of the five days he may be immediately dispossessed of the property which is held by the officer; the ultimate ownership of the property is determined at a trial held at a date set from 5 to 20 days after service of summons.

4) Claim and delivery for possession (§ 22-3-1310); where immediate dispossession is not desired, dispossession and ultimate possession are determined at hearing, date set by summons from 5 to 20 days after service thereof.

3. Requirements

A. Claim and Delivery Upon Showing of Danger of Destruction or Concealment

a) an affidavit in conformity with § 22-3-1320.
b) an affidavit showing probable danger of destruction or concealment. (§ 22-3-1380).
c) a written undertaking in double the value of such property. (§ 22-3-1330(a)).
d) a notice of an opportunity for a hearing for repossession which must be requested within 5 days of the service of all papers and the seizure. (§ 22-3-1330(b)).
e) a summons requiring the defendant to appear before the magistrate at a date set not less than five nor more than 20 days from date of service and seizure for the purpose of determining permanent possession. (§ 22-3-1330(c)).

B. Claim and Delivery Upon Showing of Waiver

a) an affidavit in conformity with § 22-3-1320.
b) an affidavit which shows that the defendant has in writing by contract or separate written instrument voluntarily, intelligently, and knowingly waived his right to a hearing prior to repossession of property. (§ 22-3-1360).
c) a written undertaking in double the value of such property. (§ 22-3-1330(a)).
d) a notice of an opportunity for a hearing for repossession which must be requested within 5 days from date of service and seizure.
e) a summons requiring the defendant to appear before the magistrate at a date set not less than 5 nor more than 20 days from date of service and seizure of property for the purpose of determining permanent ownership. (§ 22-3-1330(c))

C. Claim and Delivery for Immediate Dispossession

a) an affidavit in conformity with § 22-3-1320.
b) a written undertaking in double the value of the property. (§ 22-3-1330(a))
c) a notice of a right to pre-seizure hearing (§ 22-3-1330(b)) that notifies the defendant that he must request a hearing within 5 days of service or he may be immediately dispossessed of property at the end of 5 days.
d) an order restraining defendant from damaging, concealing, or removing property. (§ 22-3-1370)
e) a summons requiring the defendant to appear before the magistrate at a date set not less than 5 nor more than 20 days from date of service for the purpose of determining permanent possession. (§ 22-3-1330(c))

D. Claim and Delivery for Possession

a) an affidavit in conformity with § 22-3-1320.
b) an order restraining defendant from damaging, concealing, or removing property (§ 22-3-1370)
c) a summons requiring the defendant to appear before the magistrate at a date set not less than 5 nor more than 20 days from date of service for the purpose of determining permanent possession. (§ 22-3-1330(c))

4. Actions for Immediate Seizure

The immediate seizure or dispossession of the claimed property from the party in possession occurs only in situations I and II as noted below.

Only in situation II (upon a showing of waiver by affidavit) may the claimed property be immediately seized and turned over to the plaintiff claiming the property; in the remaining situations or seizure prior to final trial (I and III), the property, once seized, is held by the constable or sheriff until ownership is determined at final trial.

The papers which must be made out and served on the party in possession prior to seizure are as shown below:

Situation I

Situation II

basic affidavit

basic affidavit

affidavit of danger

affidavit of danger

undertaking (bond)

undertaking (bond)

notice of right to repossession hearing

notice of right to repossession hearing

summons

summons

5. Actions for Later Seizure

In situation III and IV, seizure occurs after a pre-seizure hearing (III) or upon final trial (IV). In situation III, the taking of possession of property may occur only after a notice of a right to pre-seizure hearing is given, and one is held (and possession for plaintiff given) or upon the defendant's failure to request a hearing within the proper time.

In situations in which plaintiff does not seek seizure of property until final trial, situation IV is applicable. In this situation, since there is no danger of damage to any party resulting from seizure of the property, no undertaking is required.

The papers which must be made out and served on the party in possession to initiate the action are shown below:

Situation III

Situation IV

basic affidavit

basic affidavit

undertaking (bond)

order restraining damage for damage or removal

notice of right to pre-seizure hearing

summons

order restraining damage or removal
summons

 

6. Filing for Affidavit

Before the magistrate allows the filing of the affidavit, the first step of the claim and delivery procedure should be an inquiry by the magistrate as to whether the plaintiff has demanded return of the property from the defendant. Often the mere demand of the property will result in its return. No demand by the plaintiff is required where the property has been wrongfully taken or withheld. The affidavit, required by § 22-3-1320, made by the plaintiff, his agent or attorney, must show:

a) That the plaintiff is the owner or is entitled to immediate possession of the property claimed, with a detailed description of the property. The description should be detailed enough to allow the constable or sheriff to distinguish that piece of property from other similar items; a description of "one 19" television" is probably not sufficient and a claim and delivery action should not be instituted on the basis of such a vague description.

b) That the property described is wrongfully withheld or detained by the defendant.

c) The cause of the withholding of the property by the defendant to the best knowledge, information, and belief of the person making the affidavit.

d) That the property has not been taken for any tax, fine, or assessment, or seized by an action of execution or attachment against the plaintiff (and if so seized that such property should have been exempt from such seizure).

e) The actual value of the personal property (which must be $7,500.00 or less for magistrates to retain jurisdiction - § 22-3-1320) as determined by the affiant.

The affidavit, containing the above information, and signed by the person making it, should then be filed with the magistrate in each of the four claim and delivery situations.

In two of the previously noted claim and delivery situations, an additional affidavit is required, or the additional required information should be contained in the basic affidavit.

7. Waiver of Right to Pre-seizure Hearing

If a person having possession of personal property has waived the right to a pre-seizure hearing (situation II), the magistrate may order immediate seizure and delivery of the property to the plaintiff upon proof of such waiver. (§ 22-3-1360).

Waiver by a defendant may be proven by an affidavit showing that the defendant, in writing, by contract or by separate written instrument, voluntarily, intelligently, and knowingly waived his right to a hearing prior to the repossession of such personal property.

The affidavit must be served on the defendant with the summons and other required affidavit, the bond undertaking, and a notice of right to a hearing for repossession. (§ 22-3-1390).

8. Affidavit of Danger of Destruction or Concealment

The magistrate in situation I may order immediate seizure of personal property without the necessity of a pre-seizure hearing. Upon a showing, supported by affidavit, of facts sufficient to cause the magistrate to believe it probable that the property at issue is in immediate danger of destruction or concealment by its possessor, the magistrate may order immediate seizure, prior to any hearing or notice. (§ 22-3-1380).

This affidavit must be served on the defendant with the undertaking and notice of right to a hearing for repossession (§ 22-3-1390), along with the other appropriate papers, at the time of seizure of the property by the officer. Upon such a seizure the property should be held by the seizing officer.

9. The Bond Undertaking

The requisites of the bond undertaking are set out in § 22-3-1330(a). It must be a written undertaking, executed by one or more different sureties, to the effect that they are bound in double the value of the personal property as stated in the affidavit, until final adjudication of the action, and they do guarantee the return of the property to the defendant if judgment be for the defendant. The sureties also guarantee the payment to the defendant of any sum awarded to the defendant against the plaintiff. The undertaking should be approved by the magistrate by signature. The defendant may make written exception to the sureties at any time at least two days before the return day of the summons pursuant to the terms of § 22-3-1340, whereupon the plaintiff must give further proof of surety.

The bond undertaking is required in all but situation IV. The purpose of requiring the undertaking is to provide a fund out of which damages resulting from seizure may be had, and since no seizure prior to final trial occurs in situation IV, no undertaking is required.

10. Notice of Right to a Hearing

The continuing development of the due process concept has resulted in the requirement that a party in possession of property claimed by another must be given an opportunity for a pre-seizure hearing (§ 22-3-1330(b)), except where proof of waiver or danger of damage or concealment is shown by affidavit. The notice of the right to a pre-seizure hearing must notify the party that he must, within five days of service of the notice, demand a hearing.

The pre-seizure hearing is held for the purpose of protecting the defendant's use and possession of property from arbitrary encroachment. At the hearing the defendant must answer the allegations of the affidavit of the plaintiff. If the magistrate, at the end of the hearing, should find that the plaintiff's claim for immediate possession is probably valid and the defendant has no overriding right to continued possession of the property, then the magistrate may allow the plaintiff's claim by endorsing upon the affidavit a direction to any constable of the county in which the magistrate presides, requiring such constable to take the property from the defendant and maintain it in a safe place. (§ 22-3-1350).

If the defendant should have failed to demand a pre-seizure hearing, or should fail to appear at the hearing after demand was made, the magistrate may base his decision on the presentation made by the parties present and rule accordingly.

In viewing the broad concept of due process, it appears that a hearing for repossession of the property after seizure is wise in those situations where no opportunity for hearing prior to seizure was offered (situations I and II). The notice of a right to a hearing for repossession should be offered in the same manner as the pre-seizure hearing, with the same five day period within which the party dispossessed must request the hearing. If the hearing is held, the defendant should be given the opportunity to refute the plaintiff's showing of waiver or danger. Upon the party's failure to so request, the possession of the property must remain in the hands of the court officer or plaintiff, depending upon the situation (I or II), until ownership is determined at the final trial.

11. Order Restraining Damage or Concealment

In actions (such as situation III and IV) in which immediate seizure is not sought by plaintiff, the magistrate should serve upon the party in possession an order restraining that party from damaging, concealing, or removing the described property. (§ 22-3-1370).

If such an order is violated, the defendant may be fined in an amount not to exceed $100 or imprisoned for not more than 30 days. An arrest warrant should be issued in order to bring the defendant before the court.

12. Summons

The summons is the initiation of judicial process to ultimately determine permanent ownership of the personal property.

The summons, issued by the magistrate and served upon the defendant, must require the defendant to appear before the magistrate at a time and place shown on the summons. The time set by the magistrate for this final trial on the issue of permanent possession and ownership may not be less than five days nor more than twenty days from the date of service (§ 22-3-1330(c)).

The summons should additionally contain a notice to the defendant that his failure to appear at the time and place set in the summons could result in judgment for the possession of the property in the plaintiff's favor, in addition to the levying of costs and disbursements of the action against the defendant.

13. Service of Papers

Upon the making out and filing of all the required papers, the magistrate should direct that the constable or sheriff attempt to locate the defendant or person in possession of the personal property and carry out the directions of the magistrate, whether it be merely service of the summons and other appropriate papers, (as in situation III or IV), or the taking of immediate possession of the property as in the situations of waiver (II) or of danger to property (I).

If the defendant cannot be personally served, the summons and papers may be served upon the defendant's agent in whose possession the described property may be found. If neither the defendant nor his agent can be located, he can be served by leaving copies of all papers at his place of business, or with a person of discretion at his last place of residence. (§ 22-3-1410).

If it shall appear by the return of the constable that he has taken the property described in the plaintiff’s affidavit and the defendant cannot be found and has no last place of abode, nor any agent or person in possession can be located, the magistrate may proceed with the cause as if personal service had been made. (§ 22-3-1400). Seizure in conformity with the above situations may be ordered by the magistrate if the property can be located.

14. Return of Property to Defendant After Seizure

At any time after seizure, but prior to the date of final trial, the defendant may have the property returned to his possession upon the filing with the magistrate of an undertaking in double the value of the property. (§ 22-3-1440).

15. Judgment and Seizure

Seizure at the direction of the magistrate may occur as a result of a failure of defendant to demand a pre-seizure hearing within the allowed time (§ 22-3-1330), upon a finding in plaintiff's favor at such a hearing (§ 22-3-1460). Seizure may also occur in situations of waiver, (§ 22-3-1360) or upon a showing of danger or concealment. (§22-3-1380). The judgment for plaintiff may be for the continued possession of the property, recovery of possession, or recovery of the value of the property, as well as for damages resulting from the defendant's withholding of the property. (§ 22-3-1460). If possession of the property has been delivered over to the plaintiff, and the judgment is for the defendant, the defendant may claim a return or the value if a return cannot be had plus damages pursuant to § 22-3-1460.

If desired by the party, an execution should be issued on any judgment (§§ 22-3-1470 and 22-3-1480), which upon the endorsement of the affidavit by the magistrate, directs the constable or sheriff to take whatever action is appropriate (seize specific goods and deliver or retain, or seize goods for the purpose of satisfying the value and costs awarded).

16. Seizure of Property

Upon the endorsement of the magistrate on the affidavit which directs the constable or sheriff to seize the certain property (or property sufficient to equal the claimed property's value), that constable or sheriff should immediately locate and seize the property, if within the county. (§ 22-3-1410).

If the property is believed or known to be in a building or enclosure (shed, barn, etc.), the constable or sheriff should publicly demand its delivery from the persons in control of the premises. If the property is not given over, the sheriff, or the constable, may break and enter the premises by the least destructive means and seize the property. (§ 22-3-1420). If it appears no one is at the premises, it is suggested that the officer return at a later time, in the hope of gaining access to the property without the necessity of breaking and entering. (Op. Att'y Gen. No. 1720, dated 1963-64). Upon the seizure, he should follow the directions contained in the magistrate's endorsement by either retaining possession or delivering the property to the party to whom it was so directed. (§ 22-3-1430).

17. Notice of Right to Cure

In a transaction between a creditor and a consumer, the creditor cannot repossess the collateral until he sends a notice of Right to Cure pursuant to §§ 37-5-110 and 37-5-111. This also pertains to Rent-to Own transactions. Please note that Federally-Chartered credit unions are excluded from this requirement. See § 37-1-202 (10).

Before a creditor may file an action for claim and delivery the debtor must be in default for at least ten days as defined by § 37-5-109. The creditor must also send notice pursuant to §§ 37-5-110 and 37-5-111. The notice must state the name, address and phone number of the creditor, a brief description of the credit transaction, the consumer's right to cure the default, and the amount of the payment and date by which the payment must be made. If the debtor does not "cure" the default within twenty days, the creditor may proceed with the action.

18. Claims of Third Parties

If the property which is the object of the claim and delivery action be claimed by a third party, that party should be allowed to enter the action by filing an affidavit as to their right to title and possession. (§ 22-3-1450). Their claim to possession should be considered with those of the plaintiff and defendant at the final trial.

19. Self-help by Owner

Upon a default in payment, an owner-claimant who has retained a security interest in personal property can reclaim possession without judicial process; so long as the property can be taken without breach of the peace. (§ 36-9-503).