# Fuentes v. Shevin

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Fuentes v. Shevin, 407 U.S. 67 (1972), was a case decided by the Supreme Court of the United States wherein petitioners challenged the constitutionality of the Uniform Commercial Code provisions of two states, Florida and Pennsylvania, which allowed for the summary seizure of a person's goods or chattels under a writ of replevin. The statutes were challenged under the Fourteenth Amendment. The Court held that the statutes acted as deprivations of plaintiff's property without due process.

## Dissenting Opinion

    White
Supreme Court of the United States
407 U.S. 67
Fuentes v. Shevin, Attorney General of Florida, et al.
Appeal from the United States District Court for the Southern District of Florida
No. 70-5039. Argued: November 9, 1971 --- Decided: June 12, 1972
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. 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.
Held:
    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 prior opportunity to be heard before chattels are taken from the possessor. Pp. 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. 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. 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. 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. 88-90.
       (e) The broadly drawn provisions here involved serve no such important a state interest as might justify summary seizure. Pp. 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. 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. 97. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the cases.
C. Michael Abbott argued the cause pro hac vice for app11ant in No. 70-5039. With him on the brief was Bruce S. Rogow. David A. School argued the cause pro hac vice for appellants in No. 70-5138. With him on the brief was Harvey N. Schmidt.
Herbert T. Schwartz, Deputy Attorney General of Florida, argued the cause for appellee Shevin in No. 70-5039. On the brief was Robert L. Shevin, Attorney General of Florida, pro se. George W. Wright, Jr., argued the cause for appellee Firestone Tire & Rubber Co. in No. 70-5039. With him on the brief was Karl B. Block, Jr. Robert F. Maxwell argued the cause for appellees in No. 70-5138 and was on the brief for appellee Sears, Roebuck & Co. J. Shane Creamer, Attorney General, and Peter W. Brown, Deputy Attorney General, filed a brief for appellee the Commonwealth of Pennsylvania in No. 70-5138.
Briefs of amici curiae urging reversal in No. 70-5039 were filed by Allan Ashman for the National Legal Aid and Defender Association and by Blair C. Shick, Jean Camper Cahn, and Barbara B. Gregg for the National Consumer Law Center of Boston College Law School et al.
Harry N. Boureau, Ross L. Malone, Robert L. Clare, Jr., and George J. Wade filed a brief for General Motors Acceptance Corp. et al. as amici curiae urging affirmance in No. 70-5039.

## Notes

* ↑ Together with No. 70-5138, Parham et al. v. Cortese et al., on appeal from the United States District Court for the Eastern District of Pennsylvania.