Fuentes v. Shevin,
407 U.S. 67 (1972)

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U.S. Supreme Court

Fuentes v. Shevin, 407 U.S. 67 (1972)

Fuentes v. Shevin

No. 70-5039

Argued November 9, 1971

Decided June 12, 1972*

407 U.S. 67


Appellants, most of whom were purchasers of household goods under conditional sales contracts, challenge the constitutionality of prejudgment replevin provisions of Florida law (in No. 70-5039) and Pennsylvania law (in No. 70-5138). These provisions permit a private party, without a hearing or prior notice to the other party, to obtain a prejudgment writ of replevin through a summary process of ex parte application to a court clerk, upon the posting of a bond for double the value of the property to be seized. The sheriff is then required to execute the writ by seizing the property. Under the Florida statute, the officer seizing the property must keep it for three days. During that period, the defendant may reclaim possession by posting his own security bond for double the property's value, in default of which the property is transferred to the applicant for the writ, pending a final judgment in the underlying repossession action. In Pennsylvania, the applicant need not initiate a repossession action or allege (as Florida requires) legal entitlement to the property, it being sufficient that he file an "affidavit of the value of the property"; and to secure a post-seizure hearing, the party losing the property through replevin must himself initiate a suit to recover the property. He may also post his own counterbond within three days of the seizure to regain possession. Included in the printed form sales contracts that appellants signed were provisions for the sellers' repossession of the merchandise on the buyers' default. Three-judge District Courts in both cases upheld the constitutionality of the challenged replevin provisions.


1. The Florida and Pennsylvania replevin provisions are invalid under the Fourteenth Amendment since they work a deprivation of property without due process of law by denying the right to a

Page 407 U. S. 68

prior opportunity to be heard before chattels are taken from the possessor. Pp. 407 U. S. 80-93.

(a) Procedural due process in the context of these cases requires an opportunity for a hearing before the State authorizes its agents to seize property in the possession of a person upon the application of another, and the minimal deterrent effect of the bond requirement against unfounded applications for a writ constitutes no substitute for a pre-seizure hearing. Pp. 407 U. S. 80-84.

(b) From the standpoint of the application of the Due Process Clause, it is immaterial that the deprivation may be temporary and nonfinal during the three-day post-seizure period. Pp. 407 U. S. 84-86.

(c) The possessory interest of appellants, who had made substantial installment payments, was sufficient for them to invoke procedural due process safeguards notwithstanding their lack of full title to the replevied goods. Pp. 407 U. S. 86-87.

(d) The District Courts erred in rejecting appellants' constitutional claim on the ground that the household goods seized were not items of "necessity," and therefore did not require due process protection, as the Fourteenth Amendment imposes no such limitation. Pp. 407 U. S. 88-90.

(e) The broadly drawn provisions here involved serve no such important a state interest as might justify summary seizure. Pp. 407 U. S. 90-93.

2. The contract provisions for repossession by the seller on the buyer's default did not amount to a waiver of the appellants' procedural due process rights, those provisions neither dispensing with a prior hearing nor indicating the procedure by which repossession was to be achieved. D. H. Overmyer Co. v. Frick Co., 405 U. S. 174, distinguished. Pp. 407 U. S. 94-96.

No. 70-5039, 317 F.Supp. 954, and No. 70-5138, 326 F.Supp. 127, vacated and remanded.

STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN, J., joined, post, p. 407 U. S. 97. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the cases.

Page 407 U. S. 69

Primary Holding

Seizing a person's property without notice and the opportunity to be heard violates due process unless the seizure is necessary for an important public or government interest, there is a need for prompt action, and the seizure is initiated by an agent of the government.


Fuentes bought a stove (with a service policy) and a stereo from Firestone Tire and Rubber Co. The parties had a disagreement over the service policy on the stove, and Firestone eventually tried to replevin both the stove and the stereo. It argued that Fuentes had defaulted on her installment payments, but Fuentes was not served with the complaint before the sheriff seized the stove and stereo, based on a writ of replevin that Firestone had received.

State law permitted this writ to issue without convincing evidence that the goods had been wrongfully detained. Instead, parties in Firestone's position simply needed to file a complain and post a bond before obtaining the writ. Once the property had been seized, parties in the position of Fuentes could get it back by posting bond, but otherwise they would need to wait until the hearing on the merits of the replevin claim. Fuentes argued that these rules violated due process, but the federal district court ruled that they were constitutional.



  • Potter Stewart (Author)
  • William Orville Douglas
  • William Joseph Brennan, Jr.
  • Thurgood Marshall

The importance of notice and the right to be heard is an important check on the power of the government to deprive an individual of property, which is especially likely to be unfairly used when the government is acting on behalf of a private party. These due process protections must attach before the property is taken away, since the later return of the property does not compensate for its temporary wrongful deprivation. The hearing may be waived and held in a flexible manner without violating due process, but the option must be available except in extraordinary situations in which an important state interest must be promptly furthered and when the government rather than a private party is involved.

The current process will be satisfied when the party seeking a writ of replevin makes a statement on behalf of its own rights, which is too easy a standard to meet. Most private parties will be susceptible to having more confidence in their right to replevin than they should, and the protection of a counter-bond is insufficient.

Any allegations by the defendant that the plaintiff waived the right to a hearing are unpersuasive. A waiver must be made clearly and explicitly to be valid.


  • Byron Raymond White (Author)
  • Warren Earl Burger
  • Harry Andrew Blackmun

Not only Florida and Pennsylvania but also many other states have similarly drafted laws in this area. While the debtor clearly has an interest in the property, the creditor also has an important interest in preventing the property from being used and possibly damaged before replevin. It would be more appropriate to require the debtor to make payments to the court to retain possession of the property, since otherwise the incentive to delay the process in bad faith may arise.


  • Lewis Franklin Powell, Jr. (Author)
  • William Hubbs Rehnquist

Case Commentary

A writ of possession can be granted only after a hearing unless the property was stolen or acquired in the normal course of trade or business for commercial use. The hearing requirement can be waived if the parties have equal bargaining power and are interacting from a distance. In general, it is designed to provide broader protection to consumers than businesses.

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