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Lacoste v. Systems & Services Technologies, Inc.

Court of Appeals of Mississippi

November 12, 2013

Richard LACOSTE, Appellant

Page 112

Floyd J. Logan, Gulfport, attorney for appellant.

Stephen E. Gardner, Jackson, Frank Edwin McRae III, attorneys for appellee.

Before LEE, C.J., MAXWELL and FAIR, JJ.


¶ 1. This is an appeal of a replevin— a legal action to gain possession of personal property wrongfully held by another. " Although replevin was recognized in early common law, its use has been controlled and regulated by statute for several hundred years." [1] Mississippi's replevin statute gives would-be possessors two procedural options— (1) request that the court issue a writ to seize the property from the defendant or (2) ask the court to summon the defendant for a hearing to determine who has the right to possess the property. Because, under the first option, the plaintiff gets the property based on his own

Page 113

unchallenged allegations, the statute requires the plaintiff first post a bond before the writ is issued. But the second option does not require a bond, since the court does not award possession until after it considers each party's claims to the property.

¶ 2. Richard Lacoste argues the " failure" by Systems & Services Technologies, Inc. (SST) to post a bond renders invalid the judgment awarding it possession of a recreational vehicle (RV) securing a debt Richard had failed to pay. However, SST clearly used the second option for its replevin, so no bond was required.

¶ 3. Further, we find SST sufficiently supported its claim for possession of the RV and attorney's fees under the loan agreement. There was no contradictory assertion, let alone evidence, from Richard that he did not owe the debt. Nor did he show he was current on his payments and was not wrongfully detaining the RV. Thus, we affirm the circuit court's award of possession of the RV to SST, as well as its award of attorney's fees to SST under the loan agreement.

Background Facts and Procedural History

¶ 4. In 1999, Richard and Linda Lacoste financed the purchase of a used RV with a secured loan assigned to Bank One. In 2009, the Lacostes stopped making payments, despite still owing $62,642.43, plus additional interest. By this time, Bank One had merged with JP Morgan Chase Bank, making JP Morgan Chase the owner of the Lacostes' loan and lienholder of the RV. JP Morgan Chase had appointed SST power of attorney to service the Lacoste loan, authorizing SST to collect payments and, in case of default, the collateral.

¶ 5. In June 2010, SST exercised its power of attorney on behalf of JP Morgan Chase and commenced a replevin. Instead of seeking immediate seizure of the RV under Mississippi Code Annotated section 11-37-101 (Rev.2012), SST elected to follow the procedure of section 11-37-131 (Rev.2012) and summon the Lacostes to court. Possession under this latter course necessarily takes a little longer, as a hearing and a determination of the merits must precede an award of possession. And here, the case drug on until October 2012. So SST had to wait more than two and a half years before finally being granted the right to possess the RV, which by that time had depreciated in value to under $20,000.

¶ 6. Back in June 2010, SST utilized section 11-37-131 and asked the circuit court to issue summonses to the Lacostes to appear before the court to determine the rights to the RV as between SST and them. SST also prayed for attorney's fees, under the terms of the loan agreement. While the summons against Linda was never executed, Richard was properly summoned. He filed an answer to SST's complaint, along with a motion to dismiss. And he was notified of a hearing in February 2011.

¶ 7. Following this February hearing, the circuit court entered a final judgment awarding SST possession of the RV. But within ten days of the judgment, Richard moved to set aside the resulting writ. The circuit court stayed the writ, pending a second hearing. During the time the writ was being stayed, Richard reasserted his motion to dismiss SST's complaint. SST in turn moved for summary judgment. Richard responded by moving to strike the affidavits SST had offered in support of summary judgment.

¶ 8. In June 2011, the circuit court entered a second " final judgment." The judge found there were no material facts in dispute and that SST was entitled to ...

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