14 §7071. Actions to recover personal property - Maine Statutes

Title 14: COURT PROCEDURE -- CIVIL

Part 7: PARTICULAR PROCEEDINGS

Chapter 726: ALTERNATIVE ACTION FOR THE RECOVERY OF PERSONAL PROPERTY

§7071. Actions to recover personal property

1. Action to resolve dispute. If 2 or more persons claim a right in, title to or possession of personal property, a claimant may bring a civil action in District Court to resolve a dispute among the claimants. The plaintiff may bring the action by way of summary proceeding under subsection 2 or plenary proceeding under subsection 9.

[ 2009, c. 245, §6 (NEW) .]

2. Summary proceeding. If an action in subsection 1 is brought as a summary proceeding, the summons must state the day when the action is returnable, which may not be less than 7 days from the date of service of the summons, and must notify the defendant that in case of the defendant's failure to appear and state a defense on the return day, judgment by default will be rendered against the defendant. The defendant may appear and defend against the action without filing a responsive pleading. The action may not be joined with any other action or claim and a defendant may not file a counterclaim. The action may not be removed to Superior Court. At the hearing on the action, the plaintiff must support its claim of an interest in or other right to possession of the personal property at issue by a preponderance of the evidence.

[ 2009, c. 245, §6 (NEW) .]

3. Discovery. In a summary proceeding, the court may for cause shown allow discovery, which may be on an expedited schedule.

[ 2009, c. 245, §6 (NEW) .]

4. Venue. An action under this section may be brought in accordance with Title 4, section 155. Relocation of the personal property may not be a basis for a change of venue.

[ 2009, c. 245, §6 (NEW) .]

5. Court authority. The court has equitable power to make an appropriate order in relation to the personal property and the parties to the action and to compel obedience to its judgment and orders. A court order under this subsection may include an order regarding the location to which the personal property must be brought or kept or a turnover order under section 3131, subsection 1.

[ 2009, c. 245, §6 (NEW) .]

6. Judgment; issuance of writ of possession. When the defendant defaults or the plaintiff is otherwise entitled to judgment, the court shall render judgment concerning the possession of the personal property in favor of the plaintiff. The judgment must order the turnover of the personal property to the plaintiff on such terms as the court directs. The court may also grant preliminary, interim or other equitable relief upon a sufficient showing that the preliminary, interim or other equitable relief is justified.

Seven calendar days after the judgment is entered, the court shall upon request of the plaintiff issue a writ of possession requiring the sheriff or constable to put the plaintiff into possession of the plaintiff's personal property. This subsection does not preclude the court from granting preliminary, interim or other equitable relief.

[ 2009, c. 245, §6 (NEW) .]

7. Service and return of writ of possession; contempt. A writ of possession is returnable within 3 years from the date of issuance. The writ may be served by a sheriff or a constable. When a writ of possession has been served on the defendant by a constable or sheriff, the defendant must put the sheriff or constable into possession of the property within 2 days of the date on which the writ is served upon that defendant or the plaintiff may file a motion to have the defendant held in contempt. A proceeding upon a motion for contempt under this subsection is subject to the Maine Rules of Civil Procedure, Rule 66(d) and for the purposes of this proceeding the entry of the judgment against the defendant creates a rebuttable presumption that the defendant has the ability to put the sheriff or constable into possession of the property. This presumption shifts the burden of production of evidence to the defendent, but the burden of persuasion remains upon the plaintiff in any contempt proceeding.

[ 2009, c. 245, §6 (NEW) .]

8. Appeal. An appeal of a judgment or order under this section is governed by Title 4, section 57 and the Maine Rules of Appellate Procedure, except that any issue triable by right by a jury may be appealed to a trial de novo in Superior Court. A request to District Court for a stay pending appeal is governed by the Maine Rules of Civil Procedure, Rule 62(d).

[ 2009, c. 245, §6 (NEW) .]

9. Plenary proceeding. If an action under this section is brought as a plenary proceeding, the Maine Rules of Civil Procedure apply, except that the action may not be joined with any other action or claim and a defendant may not file a counterclaim and the action may not be removed to Superior Court.

[ 2009, c. 245, §6 (NEW) .]

10. Equitable Remedy. The remedy provided in this section is a remedy in equity and is in addition to and not in lieu of another remedy.

[ 2009, c. 245, §6 (NEW) .]

SECTION HISTORY

2009, c. 245, §6 (NEW).