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Hello, I need to know what steps should i take: Some individual

Resolved Question:

Hello,
I need to know what steps should i take:

Some individual we found on craigslist took our forklift for repairs. He came to our shop and after inspection determined that transmission is bad. He quoted repair at $2800 and promised to get it done in 1 week. He gave us invoice with a company name and ask for $800 deposit for parts. We gave him a check payable to his company and he took a forklift.
Three weeks later he came to the office and explained that he discovered additional internal damage and he needs additional $1k for parts, but he said that the total amount of repair will stay the same. ( $2800). After another 2 weeks i came to the address listed on invoice and found out that his repair facility just a 20 ft by 20 ft open storage unit.
He said that it's almost done, but nothing seems to be taken a part when we looked at forklift. Also he cashed both check ( payable to business) at Amscott cashing check place the second after we gave him those checks.
I ran his name on google and found dozens of complains about his shady business. Eveything was similar he was going to different business and offered different repair. Than he was disappearing with equipment or with just money paid for repairs. After that point i just demanded the forklift back, i already said ""bye bye"" to $1800 paid for repairs. But one week he was very sick ( that what he said over the phone) next week he was out of town. Until i came to his place and found extra chain and lock on his fence. Apparently he stopped paying the rent and property managing company putted extra lock. Then shortly after he disconnected his cell phone. I contacted the police, but i was told that is civil issue since i found the forklift and the guy just did not performed the repair.
But it's definitely more then that he just left my forklift and somebody's else equipment in it and ran away. His storage has the look trough fence and it's easy to see what in it. Right now i can see 3 forklifts in it mine and another 2.
Now the landlord is not opening the gate because his tenant is no paying and we can not get our forklift back. Also i'm afraid then when landlord will open it he will liquidate everything in it in order to cover his cost ( lost rental profit).
Again i need to know what steps should i take to re-gain my property back .
Thanks for your time.
Submitted: 1 year ago.
Category: Business Law
Expert:  lwpat replied 1 year ago.
Thanks for using JA. I will do my best to answer your questions. DON’T FORGET the your deposit is not used to compensate me until you rate my service.

Assuming that the value of the forklift is less than 5,000 you can file an action for replevin. If it is more than 5,000 then you have to file in the county court. That is the procedure that you use to recover property that is being unlawfully held by another. You may want to first have an attorney contact the landlord to see if you can get the forklift without having to file a lawsuit. Good luck.

A legal action to recover the possession of items of Personal Property.

Replevin is one of the oldest Forms of Action known to Common Law, first appearing about the beginning of the thirteenth century. It was a legal procedure for claiming the right to have personal property returned from the possession of one who had less right to hold it than the plaintiff. Originally the action may have been available only for the recovery of goods that were illegally held past the time the defendant had the right to their possession, but soon the right was extended to cover every situation, whether the defendant wrongfully took or just withheld another's property. As time passed, if the goods themselves could not be recovered, the courts sometimes gave judgment for an amount of money representing the value of the goods. Generally, however, replevin aimed at restoring the property itself to the person entitled to possess it. The defendant could not claim as an excuse that the property belonged to someone not involved in the lawsuit because the only issue before the court was rightful possession, not title. For example, an executor of an estate could seek replevy of racehorses boarded by the decedent if the owner of the stable refused to release them. It would be no defense that the executor was not the owner of the horses.

http://legal-dictionary.thefreedictionary.com/replevin

 

If a creditor meets the proper qualifications for initiating a replevin action, and brings the action in a court of competent jurisdiction and in the correct location, he initiates his replevin action by filing a complaint.5 F.S. §78.055 sets forth the allegations which must be contained in a complaint if a party seeks a writ of replevin prior to a final judgment.6 To obtain an order authorizing the issuance of a writ of replevin prior to final judgment, the plaintiff shall first file with the clerk of the court a complaint reciting and showing the following information: 1) a description of the claimed property; 2) a statement that the plaintiff is the owner of the claimed property or is entitled to possession of it; 3) a statement that the property is wrongfully detained by the defendant; 4) a statement that the claimed property has not been taken for a tax, assessment, or fine pursuant to law; and 5) a statement that the property has not been taken under an execution or attachment against the property of the plaintiff or, if taken, that it is exempt.7

 

http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/CDEAFB3789B587ED85256C83007885EA

Here is the Florida statute

 

78.01 Right of replevin.—Any person whose personal property is wrongfully detained by any other person or officer may have a writ of replevin to recover said personal property and any damages sustained by reason of the wrongful taking or detention as herein provided. Notice of lis pendens to charge third persons with knowledge of plaintiff’s claim on the property may be recorded.

 

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0078/Sections/0078.01.html

 

 

Customer: replied 1 year ago.


Thanks for the answer. The value is just $2k, since it's very old.


 


How replevin can be filled? Do I need to get a lawyer or I can do it myself?


If I need to find the lawyer, what kind of lawyer do I need and how much ( of cause approximately) it can cost.

Expert:  lwpat replied 1 year ago.
you should be able to file yourself. Here is a typical instruction on how to file

http://www.miami-dadeclerk.com/property_small_claims.asp
lwpat, Attorney
Category: Business Law
Satisfied Customers: 25384
Experience: Attorney with over 35 years of business experience.
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Customer: replied 1 year ago.

Hello,


I asked your advice couple weeks ago about some individual who is holding the property. And you advised about filling the replevin.


 


The landlord is contacted me and informed me that he set the date for Nov 4 , for the auction. Everything in this unit ( including our forklift) will be for auction.


Can is stop this auction by filling this replevin at small claim court?


Also i downloaded the form filling the replevin but it's not clear to me whom should i put as defendant . Should i put the crook who ran away or should put landlord who keeps the property?


If i file against the crook it will give me nothing since he probably already left the state and they will never find him to get him served.


If i file against landlord i have nothing against him, he didn't took the money , he didn't make any promises. He just trying to place the lien to get his rent money back.

Expert:  lwpat replied 1 year ago.
You would file against the landlord since he is the one holding your property. You can ask the judge for an immediate hearing due to the auction.
lwpat, Attorney
Category: Business Law
Satisfied Customers: 25384
Experience: Attorney with over 35 years of business experience.
lwpat and 5 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.


Thanks for all your help.

Expert:  lwpat replied 1 year ago.
Thank you for allowing me to help and I hope you get it back without much trouble.
lwpat, Attorney
Category: Business Law
Satisfied Customers: 25384
Experience: Attorney with over 35 years of business experience.
lwpat and 5 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

Hello ,


I filled the claim for replevin, but first date of hearing was set in December, and the auction landlord set will be on Nov 4th. I explained that is kind of emergency to the clerk and she offered to write emergency on the claim form and explain the reason. I also received phone number to the judge office. I called and explained the secretary situation, but she said that nothing can be done earlier the December. I also read that other counties have something called emergency replevin when bond can be placed, but secretary explained that it does not apply for small claim court and nothing can be done to set the hearing date before auction date on Nov 4th. Also I indicated on claim of replevin that if it's impossible to get property back I want to get $3800 from defendant. So now I will have to go to the auction and I need to know what's gonna happen with my case if for example:


1) I will be the winner of my property, for example I will be able to buy it for $2000) will I have to close the case or do I need to proceed with trying to get those $2000 from defendant.


2) Or if somebody else going to win the auction and get my property should I still go with claim of replevin case against landlord.


Another thing when I was looking for landlord company info etc I found out that the owner of the rental complex who set the auction is P.A. So I don't know if I have a lot chances to get anything from the lawyer who owns this complex.


As you advised I spoke to him before filling the replevin and explained my situation. But he said that he is doing me the favor by telling me the auction date and time, so I can come and bid on my property, also he said that the minimum will be set at $1500 ( 3 month rent that crook did not pay) and any lower bids will not be accepted. After that I decided to invest another $310 to try this replevin, but with the hearing date set month after the hearing it can be irrelevant. Please let me know your thoughts.

Expert:  lwpat replied 1 year ago.
You can serve him with the complaint for replevin and notice of the hearing. Then if he sells the forklift it will be with notice of your claim and you should also notify the party holding the auction that he does not have clear title to the forklift and there is a lawsuit pending. Then if they proceed to sell the forklift you would have a claim against them for your damages based on conversion. You could also file a claim against the auction company for selling an item with notice that there was a pending claim.

http://www.myfloridalicense.com/dbpr/pro/auct/
lwpat, Attorney
Category: Business Law
Satisfied Customers: 25384
Experience: Attorney with over 35 years of business experience.
lwpat and 5 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

Ok, but if they will procceed with the auction, i will have to try to win it at the auction. How it will affect the case if i will be the winner ?


 

Expert:  lwpat replied 1 year ago.
If you are the winner you can still sue the landlord for your damages based on what you have to pay for the forklift.
lwpat, Attorney
Category: Business Law
Satisfied Customers: 25384
Experience: Attorney with over 35 years of business experience.
lwpat and 5 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.


So should i keep the case for replevin and on hearing date Dec 3 i have to tell judge that i had to go to the auction and buy it and now i need to recover this money from landlord?


 


Do you think there is a chance for the judge to take my side? I'm asking because the landlord is an attorney and he made the impression he knows what he is doing. He absolutely legally set the auction and trying to recover his loss rental profit. I'm afraid he will out smart me at all steps he makes.


 

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