An Overview of Detinue in Virginia

In Virginia, "detinue" refers to a procedure by which a party may recover possession of "unlawfully withheld" personal property.^[1] Many creditors are familiar with a related and similar cause of action, "replevin," which is utilized in many jurisdictions outside of Virginia but has now been abolished in Virginia by statute.^[2] Detinue provides a valuable mechanism for a secured creditor to obtain possession of its collateral upon a borrower's default. The following article provides an overview of the detinue process in Virginia and some reasons why secured creditors should utilize this procedure to recover collateral.

Procedure for Bringing a Detinue Action

Detinue in Virginia is provided for, in part, by Virginia Code Section 8.01-114.^[3] If the balance (exclusive of attorneys' fees and interest) owed on the contract secured by the collateral is $25,000.00 or less, a creditor may commence a detinue action by filing a Warrant in Detinue in General District Court. If the balance is greater than $25,000.00, a creditor must commence the detinue action by filing a Complaint in Circuit Court. To prevail in a detinue action as a secured party, the creditor must prove to the applicable court that (i) the loan is in default; (ii) a balance exists on the contract; and (iii) that the creditor possesses a valid security interest in the particular piece of collateral securing the loan. If the creditor successfully carries its burden of proof, the Court will grant it a judgment for "[t]he amount due to the plaintiff [under the contract] or for the specific property, and costs."^[4]

After a final judgment is rendered by the court, the debtor has the election of paying the amount of the final judgment (which in the case of a note or contract secured by the collateral is the full amount owed plus court costs) or surrendering the collateral to the creditor. By law, the court may grant the defendant up to 30 days to make the election on how to satisfy the judgment.^[5] Generally, most courts allow the debtor ten days to make his/her election and either pay the amount due under the contract or return the collateral to the creditor.^[6] In the event that the debtor fails to do either, a creditor's next step is to request that the court issue a writ of possession,^[7] after which time the Sheriff may seize the collateral.

Why Creditors Should Take Advantage of Detinue

Some creditors view detinue as a remedy of last resort to be used only when attempts to repossess the collateral have proven unsuccessful. While it is true that Virginia allows "self-help" (i.e., a creditor may repossess collateral upon a debtor's default assuming no breach of the peace occurs)^[8], there are several reasons why creditors should consider relying more heavily on detinue as a primary remedy.

First, the line between lawful "self-help" on one hand and a "breach of the peace" on the other, is a moving target that is constantly subject to evolution by judicial interpretation. Some courts interpret "breach of the peace" broadly to encompass acts or practices that are not necessarily aggressive or confrontational. Creditors must always remain aware that under most circumstances, they may be subject to vicarious liability for the acts or practices of the repossession agents who they engage. If the repossession is properly done with a sheriff pursuant to a court order and a writ properly issued, it helps protect the creditor from any claim for breach of the peace.^[9]

Secondly, in some cases debtors are more responsive to formal legal process than the acts of third-party repossession agents. Often, the same debtor who is willing to intentionally thwart the efforts of a private repossession agent will cooperate when visited by the Sheriff in a formal capacity, whether for service of the initial process, or for post-judgment execution on a writ of possession. The initiation of the formal detinue process may cause the debtor to realize that they must go ahead and relinquish possession of the collateral. In such a case, invoking formal legal process can be much more cost-effective and take less time than multiple failed repossession attempts. Further, as mentioned above, filing formal process may limit a creditor's exposure to liability for a breach of the peace.

Finally, if after the final order is entered, the creditor is unable to locate the collateral or determines that the collateral is worthless, it may execute on the judgment just as it would any other money judgment. In such cases, a creditor may issue wage or bank garnishments on the judgment and/or docket the judgment in the jurisdictions where the debtor owns real property.^[10]

In many cases, a detinue action can provide a creditor with an effective, timely and cost-efficient means of recovering its collateral (or alternatively, the amounts due on a contract secured by collateral). Detinue can limit legal exposure associated with repossession, as well as afford a creditor options in the event that the collateral cannot be located.

Please note that this article is not an exhaustive review of detinue actions and it is not intended as advice for any particular situation. Any procedures or specific actions related to detinue actions should be reviewed by the Bank's counsel before they are initiated.

[1] See Virginia Code § 8.01-114.
[2] See Virginia Code § 8.01-218. The principal difference between replevin and detinue is that the detinue focuses on the wrongful holding and detention of personal property, whereas replevin focuses on the wrongful "taking" of the property.
[3] Virginia Code Section § 8.01-114(A) provides that "A proceeding in detinue to recover personal property unlawfully withheld from the plaintiff may be brought on a warrant or motion for judgment . . ."
[4] See Virginia Code § 8.01-121.
[5] See Virginia Code § 8.01-121.
[6] If the debtor does not appear and the court enters judgment by default, the court usually does not grant the debtor time to make an election.
[7] See Virginia Code § 8.01-470.
[8] See Virginia Code § 8.9A-609(b)(2).
[9] Note that this must be done through the formal legal issuance of a writ by the Clerk's Office and an appropriate law enforcement officer properly serving the writ of possession. A creditor cannot use an off duty sheriff or other individual acting under color of law who has in his/her possession a copy of the order.
[10] Please note that some courts do not follow the statute and require a creditor to choose between a possession order reserving the rights to monetary damages and an order for money damages. In these jurisdictions, it may be necessary for a creditor to first obtain a possession order and attempt to recover possession of the collateral. If the creditor is unsuccessful, it may then ask the court to enter a money judgment order for the amount owed on the contract.