General Comment

Current law is found at K.S.A. 61-2401 through 2405.  This article was changed to create a more useful statute and to change many of the legal phrases to "plain English" terminology.  There were few substantive changes to the statute and the statute was amended to reflect the common practices observed by judges, clerks of courts, and sheriffs. 

1.  Replevin
Upon the commencement of an action, the plaintiff may recover possession of specific personal property before or after judgment.
(a) Claim for possession of property.  A plaintiff may seek an order to obtain possession of specific personal property as follows:
(1) Petition.  The plaintiff shall file a petition stating:
(A) Plaintiff is the owner or the person lawfully entitled to the possession, the specific property, and the factual basis for the claim,
(B) a description of the property,
(C) the property is wrongfully detained by the defendant, or is held by an officer under legal process who has refused delivery on demand, and
(D) the estimated value of the property.
(b) Prejudgment possession of property.  A plaintiff may seek an order to obtain immediate possession of specific personal property, before judgment as follows:
(1) Petition.  The plaintiff shall file a petition signed under penalty of perjury stating:
(A) Plaintiff is the owner or the person lawfully entitled to the possession, the specific property, and the factual basis for the claim,
(B) a description of the property,
(C) the property is wrongfully detained by the defendant, or is held by an officer under legal process who has refused delivery on demand, and
(D) the estimated value of the property.
(c) Hearing; notice, bond.  After filing the petition, the plaintiff may apply to the court for an order for the delivery of the property prior to judgment on the merits of the case.
(1) The application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuant to article 3 of this chapter.
(3) After a hearing and presentation of evidence on plaintiff's motion, and if the judge is satisfied as to the probable validity of plaintiff's claim and that delivery of the property to the plaintiff is in the interest of justice and will properly protect the interests of all the parties, the judge may enter or cause to be entered an order for the delivery of the property to the plaintiff.
(4) Prior to the issuance of the order for delivery of the property, the plaintiff shall file a bond with the clerk of the court.
(d) Bond; contents, insufficiency.
(1) The bond shall be executed by the plaintiff and one or more sufficient sureties in a sum double the amount of the fair market value of the property, as determined by the judge, or such lesser amount as shall be approved by an order of the judge.
(2) The bond shall be to the effect that plaintiff shall duly prosecute the action, and pay all costs and damages that may be awarded against the plaintiff, and that if plaintiff is given possession of the property he or she will return it to the defendant if it be so adjudged.  If the bond shall be found to be sufficient, the judge shall approve the same and note his or her approval thereon. 
(3) The defendant may challenge the sufficiency of the bond as provided in subsection (b) of K.S.A. 60-705. 
(4)  The Court shall release the bond, if plaintiff abandons the right to take possession of the property, prior to taking possession of the property.
(e) Replevin; without hearing, notice. 
Notwithstanding the foregoing provisions of this section, the judge may enter or cause to be entered the order for delivery of property after an ex parte hearing and without notice to and the opportunity for a hearing by the defendant, if the judge is satisfied as to the probable validity of the following additional allegations to be contained in plaintiff's petition:
(1) Possession of the property by the plaintiff is directly necessary to secure an important governmental or general public interest; and
(2) There is a special need for very prompt action due to the immediate danger that the defendant will destroy or conceal the property.
(f) Property in custodia legis. If the property is in the custody of an officer under any legal process, it shall nevertheless be subject to replevin under this section, but if the same is in the custody of any officer under any process issued out of a judicial proceeding, the petition and bond shall be filed in the same proceeding out of which such process issued.
(g) Order for delivery of property. The order for the delivery of the property to the plaintiff shall be delivered to the appropriate officer or person authorized to serve process of any county in the state in which the property is located. The order shall state the names of the parties, the description of the property and the value as set out in plaintiff's petition, or as found by the court at the hearing on plaintiff's application pursuant to subsection   (c).  It shall command the appropriate officer to take immediate possession of the property and deliver it to the plaintiff and make return of the order on the day named therein.
(h) Execution of order, return. 
(1) In the execution of the order the officer may break open any building or enclosure in which the property is located, if he or she cannot otherwise obtain possession of the property or entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession of the property described therein, and serving a copy on the person charged with the order of delivery in the same manner as for personal or resident service if he or she can be found in the county.
(3) The return day of the order of delivery shall be ten (10) days after it is issued, if the order is executed within the county where the court is situated. In all other cases, the return day shall be twenty (20) days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order.  Upon inspection of the property the plaintiff may abandon their right to prejudgment possession and shall so advise the appropriate officer and the court.
(I)  Perishable goods.  When property shall be actually seized which is likely to perish or to materially depreciate in value or threatens to decline speedily in value before the probable termination of the suit, or the keeping of which would be attended with unreasonable loss or expense, the court may order the same to be sold on such terms and conditions as the judge may direct, by the person having charge of the property, and a return of the proceedings thereon shall be made by the person at a time to be fixed by the judge.
(j)  Redelivery, bond.  The defendant, after service of a copy of the delivery order, may apply to the court for redelivery of the property.  The court shall order return of the property to the defendant when the defendant files a bond with the clerk of the court, in an amount equal to the plaintiff's bond, executed by the defendant with one or more sufficient sureties.  The bond shall be to the effect that the defendant will deliver the property to the plaintiff if so adjudged, and will pay all costs and damages that may be adjudged against the defendant. If the bond shall be found to be sufficient, the judge shall approve the same and note his or her approval thereon.  If the defendant is a public officer, board or government agency, such officer, board or agency, in lieu of giving a redelivery bond, may retain possession of the property seized by filing with the clerk a response certifying that the public health, safety or welfare would be jeopardized or impaired if the plaintiff acquired possession of the property prior to final judgment, in which case hearing may be had on the issue of public interest at the instance of any party.
(k) Judgment in action. (1) In an action to recover the possession of personal property, judgment for the plaintiff may be for possession or for the recovery of possession, or the value thereof in case a delivery cannot be had, and for damages for the detention. If the property has been delivered to the plaintiff and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same. (2) In addition to other orders, the court may direct an appropriate officer to put the party entitled to possession in possession of the property.

Comment

The replevin section has been changed to distinguish between prejudgment replevins which require additional Constitutional safeguards, and post judgment replevins which proceed as normal litigated controversies.  The elements required in the petition are specifically delineated to assist in electronic filing.  The most substantive change is changing the bond amount from "the amount of plaintiff's claim" to double the fair market value of the property in dispute.  This reduces the bond significantly in the event the property has little value in comparison to the plaintiff's overall claim.  For example, a lessor seeking return of his leased property may have a claim for the remainder of the lease term, but the actual fair market value of the leased property has diminished considerably over time. 

The clerk of the court and sheriff have been relieved of "quasi-judicial" rulings.  A judge determines the sufficiency of bonds and approves bonds, rather than the clerk.  In the case of redelivery bonds, the judge determines the sufficiency of and approves bonds rather than the sheriff.

2.  Foreclosure of security interest.
A plaintiff may bring an action to reduce an indebtedness to a money judgment and to foreclose the security interest in specific personal property given to secure such indebtedness. The plaintiff, at any time before judgment is rendered, may obtain immediate possession of the specified property as follows:
(a) Petition. The plaintiff shall file a petition signed under penalty of perjury stating:
(1) the plaintiff is the secured creditor of the defendant;
(2) The instrument of indebtedness or the terms thereof;
(3) the amount of the indebtedness owed;
(4) the security agreement or the terms thereof;
(5) a description of the personal property;
(6) that plaintiff is lawfully entitled to the foreclosure of the specific personal property;
(7) the estimated value of each item of personal property; and
(8) the defendant is no longer entitled to possess the property.
(b) Prejudgment possession; hearing, notice, bond.  After filing the petition, the plaintiff may apply to the court for an order for the delivery of the property before judgment.
(1) The application to the court for an order of delivery shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuant to article 3 of this chapter.
(3) After a hearing and presentation of evidence on plaintiff's motion, and if the judge is satisfied as to the probable validity of plaintiff's claim and that delivery of the property to the plaintiff is in the interest of justice and will properly protect the interests of all the parties, the judge may enter or cause to be entered an order for the delivery of the property to the plaintiff.
(4) Prior to the issuance of the order for delivery of the property, the plaintiff shall file a bond with the clerk of the court.
(c) Bond, contents, insufficiency.
(1) The bond shall be executed by the plaintiff and one or more sufficient sureties in a sum double the amount of the fair market value of the property, as determined by the judge, or such lesser amount as shall be approved by an order of the judge.
(2) The bond shall be to the effect that plaintiff shall duly prosecute the action, and pay all costs and damages that may be awarded against the plaintiff, and that if plaintiff is given possession of the property he or she will return it to the defendant if it be so adjudged. If the bond shall be found to be sufficient, the judge shall approve the same and note his or her approval thereon. 
(3) The defendant may challenge the sufficiency of the bond as provided in subsection (b) of K.S.A. 60-705. 
(4) The Court shall release the bond, if plaintiff abandons the right to take possession of the property, prior to taking possession of the property.
(d) Execution of order, return. 
(1) In the execution of the order the officer may break open any building or enclosure in which the property is located, if he or she cannot otherwise obtain possession of the property or entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession of the property described therein, and serving a copy on the person charged with the order of delivery in the same manner as for personal or resident service if he or she can be found in the county.
(3) The return day of the order of delivery shall be ten (10) days after it is issued, if the order is executed within the county where the court is situated. In all other cases, the return day shall be twenty (20) days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order.  Upon inspection of the property the plaintiff may abandon their right to prejudgment possession and shall so advise the appropriate officer and the court.
(e) Perishable goods. When property shall be actually seized which is likely to perish or to materially depreciate in value or threatens to decline speedily in value before the probable termination of the suit, or the keeping of which would be attended with unreasonable loss or expense, the court may order the same to be sold on such terms and conditions as the judge may direct, by the person having charge of the property, and a return of the proceedings thereon shall be made by the person at a time to be fixed by the judge.
(f) Redelivery, bond.  The defendant, after service of a copy of the delivery order, may apply to the court for redelivery of the property.  The court shall order return of the property to the defendant when the defendant files a bond with the clerk of the court, in an amount equal to the plaintiff's bond, executed by the defendant with one or more sufficient sureties.  The bond shall be to the effect that the defendant will deliver the property to the plaintiff if so adjudged, and will pay all costs and damages that may be adjudged against the defendant. If the bond shall be found to be sufficient, the judge shall approve the same and note his or her approval thereon.  If the defendant is a public officer, board or government agency, such officer, board or agency, in lieu of giving a redelivery bond, may retain possession of the property seized by filing with the clerk a response certifying that the public health, safety or welfare would be jeopardized or impaired if the plaintiff acquired possession of the property prior to final judgment, in which case hearing may be had on the issue of public interest at the instance of any party.
(g) Possession in third party. When the officer finds the property in possession of a person other than a defendant and deems it advisable to leave such person in possession, the officer shall declare to the person in possession that such person shall hold such property in such person's possession, subject to the further order of the court, and shall summon such person as a garnishee by serving upon such person a copy of the order which directs the officer to take immediate possession of the property. The court may require of such person in possession an undertaking with good and sufficient sureties in such sum as the court deems sufficient. The undertaking shall be to the effect that such person will deliver the property to the officer at the time and place fixed for sale, if such be ordered by the court. The officer shall give such person written notice of the time and place fixed for the sale by delivery in person or by restricted mail.
(g) Property claimed by third person. If the officer, before proceeding, may require the possession of, or be requested by the plaintiff to take possession of, personal property claimed by any person other than a defendant, the court may require the plaintiff to give the court an undertaking with good and sufficient sureties to pay all costs and damages that the officer may sustain by reason of the execution of such order.
(h) Judgment. Judgment for the plaintiff shall be for a money judgment and foreclosure of the security interest, and the plaintiff may proceed to foreclose the security interest in accordance with the terms of the security agreement covering the property, as governed by the provisions of the uniform commercial code, unless the court otherwise directs. If the court directs the plaintiff to proceed to enforce such plaintiff's judgment other than pursuant to the security agreement, and if the judgment is not satisfied within 10 days thereafter, then the clerk shall issue an order of special execution directed to the appropriate officer to sell the property in accordance with section 3 of this article, and amendments thereto. If the property is not then in the possession of the officer, the order shall also direct the person having possession to deliver such property to the officer. If the property has been delivered to the officer, and the defendant claims a return thereof, judgment for the defendant or a return of the property and damages for the taking and withholding of same.

Comment

A plaintiff has the right to inspect the property and abandon its claim for replevin at which time the bond is canceled and the plaintiff and his surety are relieved of responsibility.  There seems to be no good reason to hold the plaintiff or the surety to the bond if no prejudgment remedy is actually obtained.

3.  Sale of property to satisfy judgment for foreclosure of security interest.
(a) Any sale conducted under the provisions of this section shall be subject to the provisions of K.S.A. 60-2406, except that the disposition of proceeds after the satisfaction of senior security interests or liens shall be made in accordance with the provisions of section 5 of this article.  The officer who shall be directed to sell the personal property, shall, before said officer proceeds to sell the same, cause public notice to be given of the time and place of sale, for at least ten (10) days before the day of sale. The notice shall be given by publication at least once each week for two (2) consecutive weeks in any newspaper published in the county, and which is qualified to carry legal publications, or, in the discretion of the court, by posting notices in five (5) public places in the county, one of which shall be on a bulletin board established for public notices in the county courthouse. Within five (5) days of the date of first publication or posting of notice, plaintiff shall send by restricted mail a copy of said notice to the defendant and to those persons known by the plaintiff to have a security interest in the property. Such notice shall be sent to the last known address of the person to whom sent and shall be in compliance with K.S.A. 84-1-201 (26). If the personal property cannot be sold at the special execution sale for want of bidders, the plaintiff may direct the officer to return the special execution showing that fact or, at his or her option, he or she may report the same to the judge and obtain an order permitting a second sale under the same special execution and an extension of the return day of the special execution if that be necessary.
(b) If the personal property to be sold shall consist of more than one item of property, the appropriate officer conducting said sale shall sell only so much of the personally in his or her custody as is necessary to satisfy the judgment, interest and costs, and shall return the balance of any property remaining unsold to the defendant by notifying the defendant of the time and place when same may be obtained.
(c) Neither the officer conducting the sale nor any other member of his or her staff may bid at any such sale.
(d) The provisions of K.S.A. 60-2411 relating to advancement of printer's fees shall apply to this section.

4.  Return; confirmation of sale.
Upon sale of said property, the appropriate officer shall make a return of said sale to the clerk of the court, together with an itemization of said officer's expenses of sale. The court, upon finding the proceedings regular and in conformity with law, shall confirm the same, and order the officer to make to the purchaser a certificate of sale. The certificate of sale shall accurately describe the property sold, name the purchaser and recite the facts of the sale. If a certificate of title is obtainable for such property under the laws of this state, the description of the property shall include the year, make, style and identification number of said property. A certificate of sale shall vest title to the property in the purchaser.

5.  Application of proceeds.
Upon the sale of personal property by the appropriate officer the clerk of the court shall apply the proceeds of sale in the following priority:
(a) To the court costs of the action including the officer's expenses and cost of publication;
(b) in accordance with the provisions of K.S.A. 60-2406;
(c) in satisfaction of all judgments rendered in the action against the defendant or the property in accordance with the priority determined by the court;
(d) any surplus shall be paid to the defendant, except that if any other security interest holder has, subsequent to the entering of the judgment of foreclosure, filed with the clerk of the court a written notification of demand furnishing reasonable proof of his or her interest, the clerk shall withhold any payment to the defendant. Such security interest holder must serve the defendant with notice of his or her demand within ten (10) days after such filing and furnish proof of such notice to the court.
If the defendant does not, within ten (10) days, notify the clerk in writing that he or she takes exception to the demand of said security interest holder, the clerk shall apply said surplus to the said demand and pay any balance to the defendant.

If the defendant does, within ten (10) days, notify the clerk in writing that he or she takes exception to said demand, the clerk shall withhold all surplus in his or her hands for a period of thirty (30) days. If said security interest holder has not commenced a separate action to recover his or her claim and garnished the clerk within said time, the clerk shall pay said surplus to the defendant.