BILL REQ. #:  H-1238.1 

Read first time 02/12/2003.   Referred to Committee on Judiciary.

     AN ACT Relating to replevin; amending RCW 7.64.020, 7.64.035, and 7.64.045; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 7.64.020 and 1990 c 227 s 2 are each amended to read as follows:
     (1) At the time of filing the complaint or any time thereafter, the plaintiff may apply to the judge or court commissioner to issue an order directing the defendant to appear and show cause why an order putting the plaintiff in immediate possession of the personal property should not be issued.
     (2) In support of the application, the plaintiff, or someone on the plaintiff's behalf, shall make an affidavit, or a declaration as permitted under RCW 9A.72.085, showing:
     (a) That the plaintiff is the owner of the property or is lawfully entitled to the possession of the property by virtue of a special property interest, including a security interest, specifically describing the property and interest;
     (b) That the property is wrongfully detained by defendant;
     (c) That the property has not been taken for a tax, assessment, or fine pursuant to a statute and has not been seized under an execution or attachment against the property of the plaintiff, or if so seized, that it is by law exempt from such seizure; and
     (d) The approximate value of the property.
     (3) The order to show cause shall state the date, time, and place of the hearing((, which shall be set no earlier than ten and no later than twenty-five days after the date of the order)) and contain a notice to the defendant that failure to promptly turn over possession of the property to the plaintiff or the sheriff, if an order awarding possession is issued under RCW 7.64.035(1), may subject the defendant to being held in contempt of court.
     (4) A certified copy of the order to show cause, with a copy of the plaintiff's affidavit or declaration attached, shall be served upon the defendant no later than five days before the hearing date.

Sec. 2   RCW 7.64.035 and 1990 c 227 s 3 are each amended to read as follows:
     (1) At the hearing on the order to show cause, the judge or court commissioner may issue an order awarding possession of the property to the plaintiff and directing the sheriff to put the plaintiff in possession of the property:
     (a)(i) If the plaintiff establishes the right to obtain possession of the property pending final disposition, or (ii) if the defendant, after being served with the order to show cause, fails to appear at the hearing; and
     (b) If the plaintiff executes to the defendant and files in the court a bond in such sum as the court may order, with sufficient surety to be approved by the clerk, conditioned that the plaintiff will prosecute the action without delay and that if the order is wrongfully sued out, the plaintiff will pay all costs that may be adjudged to the defendant and all damages, court costs, reasonable attorneys' fees, and costs of recovery that the defendant may incur by reason of the order having been issued. However, the court may waive the bond if the plaintiff has properly served the defendant in accordance with RCW 7.64.020(4) and the defendant either fails to attend the hearing on the order to show cause or appears at the hearing on the order to show cause but does not object to entry of the order to show cause.
     (2) An order awarding possession shall: (a) State that a show cause hearing was held; (b) describe the property and its location; (c) direct the sheriff to take possession of the property and put the plaintiff in possession as provided in this chapter; (d) direct the defendant to transfer possession of the property to the plaintiff and contain a notice to the defendant that failure to turn over possession of the property to the plaintiff or sheriff may subject the defendant to being held in contempt of court upon application to the court by the plaintiff without further notice; (e) if deemed necessary, direct the sheriff to break and enter a building or enclosure to obtain possession of the property if it is concealed in the building or enclosure; and (((e))) (f) be signed by the judge or commissioner.
     (3) If at the time of the hearing more than twenty days have elapsed since service of the summons and complaint and the defendant does not raise an issue of fact prior to or at the hearing that requires a trial on the issue of possession or damages, the judge or court commissioner may also, in addition to entering an order awarding possession, enter a final judgment awarding plaintiff possession of the property or its value if possession cannot be obtained, damages, court costs, reasonable attorneys' fees, and costs of recovery.
     (4) When any of the property is removed to a county other than the county in which the action was commenced, the sheriff directed to take possession of the property by the order awarding possession, or the sheriff of the county where the property is found, may execute the order awarding possession and take possession of the property in any county of the state where the property is found. For the purpose of following the property, duplicate orders awarding possession may be issued, if necessary, and served as the original.

Sec. 3   RCW 7.64.045 and 1990 c 227 s 4 are each amended to read as follows:
     After issuance of the order awarding possession, the plaintiff shall deliver a copy of the bond, unless waived by the court under RCW 7.64.035(1)(b), and a certified copy of the order awarding possession to the sheriff of the county where the property is located and shall provide the sheriff with all available information as to the location and identity of the defendant and the property claimed. If the property is returned to the plaintiff by the defendant or if the plaintiff otherwise obtains possession of the property, the plaintiff shall notify the sheriff of this fact as soon as possible.