126 So. 3d 111
Miss. Ct. App.2013Background
- In 1999 Richard and Linda Lacoste bought an RV secured by a loan originally held by Bank One; by 2009 they defaulted owing about $62,642 in principal.
- Bank One merged into JP Morgan Chase, which authorized Systems & Services Technologies, Inc. (SST) by power of attorney to service the loan and, upon default, to repossess collateral.
- SST filed a replevin in June 2010 under Miss. Code § 11-37-131 (summons/hearing route), seeking possession of the RV and contractual attorney’s fees; Linda was never properly served, Richard was.
- After multiple hearings, stays, and motions (including Richard’s motions to dismiss and to strike affidavits), the circuit court granted SST summary judgment and awarded possession of the RV and $7,461.81 in attorney’s fees.
- Richard appealed, arguing: (1) SST should have posted a bond under the replevin statute; (2) summary judgment was improper because SST’s affidavits/evidence were inadequate; and (3) SST was not entitled to contractual attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Richard) | Defendant's Argument (SST) | Held |
|---|---|---|---|
| Whether SST was required to post a bond under the replevin statute | Bond required because replevin plaintiff must post bond when seeking possession | SST proceeded under § 11-37-131 (summons/hearing), not the immediate-possession writ of § 11-37-101, so no bond required | Held: No bond required; SST used the summons/hearing procedure |
| Whether summary judgment was proper for possession of the RV | SST’s affidavits/exhibits were insufficient and should have been stricken; factual disputes remained | SST produced affidavit, power of attorney, and payment records showing default and authorization to repossess; Richard produced no contrary evidence | Held: Summary judgment proper—no genuine issue of material fact; SST entitled to possession |
| Whether Wedding’s affidavit complied with Rule 56(e) | Affidavit failed to show Wedding was authorized or had personal knowledge; power of attorney didn’t list the Lacostes’ loan specifically | Wedding attested she was an authorized agent, had personal knowledge, and attached portfolio power of attorney and account records | Held: Trial court did not abuse discretion in denying motion to strike; affidavit sufficient |
| Whether SST could recover attorney’s fees | Fees not available absent punitive damages in replevin | SST sought fees under the loan contract (separate contractual claim), independent of replevin punitive-damages rule | Held: Fees awarded under the contract were proper and reasonable |
Key Cases Cited
- Three States Lumber Co. v. Blanks, 133 F. 479 (6th Cir. 1904) (discusses replevin’s ancient common-law roots)
- Rawles v. Ogden, 284 So.2d 532 (Miss. 1973) (replevin now governed by statute)
- Hall v. Corbin, 478 So.2d 253 (Miss. 1985) (replevin statutes supplement, not supplant, Rules of Civil Procedure)
- Stuckey v. The Provident Bank, 912 So.2d 859 (Miss. 2005) (purpose of summary judgment: eliminate mere accusation and force non-movant to present material evidence)
- Wolf v. Stanley Works, 757 So.2d 316 (Miss. Ct. App. 2000) (summary judgment appropriate where no disputed material facts exist)
- Brown v. Credit Ctr., Inc., 444 So.2d 358 (Miss. 1983) (undisputed creditor affidavit plus account records can entitle creditor to summary judgment)
- Keefe v. City of Hollywood, 487 So.2d 311 (Fla. Dist. Ct. App. 1986) (agent with power of attorney may initiate replevin for principal)
- Price v. Purdue Pharma Co., 920 So.2d 479 (Miss. 2006) (burden-shifting framework for summary judgment)
- Standard Fin. Corp. v. Breland, 163 So.2d 232 (Miss. 1964) (attorney’s fees in replevin are not recoverable absent punitive damages, but contractual fees are separate)