Idaho Law Blog
OBTAINING A WRIT OF POSSESSION
Secured creditors have options in taking possession of personal property collateral after default by the debtor. As detailed in Idaho Code §28-9-609, a secured party may do self-help, if it proceeds without breach of the peace, or it may proceed to obtain the property through judicial process. In the judicial process option, Idaho Code §8-301 allows creditors to claim delivery of the collateral prior to trial. Also, take a look at Idaho Code §8-302. This statute provides if a creditor wants possession of the collateral, in its Verified Complaint or affidavit, it must show its entitlement to the property by satisfying various factors as detailed within the statute. If the court, following its review of the affidavit or Verified Complaint, is satisfied that the requirements of the statute have been met, it shall issue an Order to Show Cause, essentially scheduling a hearing where the debtor can contest the delivery of the property to the plaintiff/creditor.
Prior to the hearing, the court may issue a writ of possession if probable cause appears that the debtor and/or defendant obtained the property by larceny, or the property consists of negotiable instruments or credit cards, or the property is perishable, or in immediate danger of destruction, or serious harm, or concealment, or removal from the state, or of sale to an innocent purchaser. If the writ of possession is not issued prior to the hearing, at the hearing, the court shall consider the showing made by the parties appearing and make a preliminary determination which party, with reasonable probability, is entitled to possession, use and disposition of the property. If the court determines it proper, it shall direct the issuance of a writ of possession.
However, the issuance of the writ of possession to the plaintiff cannot be had unless the requisites of Idaho Code §8-303 are complied with. This statute requires that prior to the issuance of a writ of possession, the plaintiff must file an undertaking (formal pledge or promise) executed by two (2) or more sufficient sureties, memorializing they are bound to the debtor in an amount double the value of the property, as determined by the court, for the return of the property to the debtor, if return thereof be ordered, and to cover the payment to the debtor of any sum that may be recovered from the plaintiff. Said otherwise, the undertaking is to cover damage to the debtor in the event it is later determined the property was wrongfully taken.
Idaho Rule of Civil Procedure 66 pertains to sureties. This rule states that if a bond or undertaking is required by rule or statute, the general form or justification of the sureties must be in accordance with chapter 6, title 12 of Idaho Code. Idaho Code §12-613 is the statute detailing the form and verbiage of the undertaking. As noted above, this undertaking must be filed with the court prior to the issuance of a writ of possession.
Idaho Code §8-304 pertains to the content of the writ. Take note this statute also requires a copy of the undertaking, along with the writ, to be served by the Sheriff. In the event the property can’t be located by the Sheriff, the plaintiff, through affidavit, can obtain additional writs for different counties, without further notice to the debtor.
If you or someone you know needs assistance with judicial repossession, please give Stephen Muhonen at Racine Olson, PLLP a call at 208-232-6101. You can also email Stephen at steve@racineolson.com