LOCATION: US District Court for the Northern District of Texas
DOCKET NO.: 70-5039
DECIDED BY: Burger Court (1972-1975)
CITATION: 407 US 67 (1972)
ARGUED: Nov 09, 1971
DECIDED: Jun 12, 1972
C. Michael Abbott - for appellants Margarita Fuentes and others, pro hac vice, by special leave of Court
David A. Scholl - for the appellants Paul Parham and others, pro hac vice, by special leave of Court
George W. Wright, Jr. - for appellee Firestone Tire and Rubber Co
Herbert T. Schwartz -
Robert F. Maxwell - for appellees, Americo V
Facts of the case
Media for Fuentes v. Shevin
Audio Transcription for Oral Argument - November 09, 1971 in Fuentes v. Shevin
Warren E. Burger:
We will hear arguments is in 5138, Parham against Cortese.
Mr. Scholl, you may proceed whenever you are ready.
David A. Scholl:
Mr. Chief Justice --
Warren E. Burger:
We will try to complete tonight, if it is all possible.
David A. Scholl:
Mr. Chief Justice and may it please the Court.
In this case, this is another action which is a class action, brought by a group of consumers.
This is similar in effect to the Swarb action which was also class action instituted on behalf of all of the residents of the state which had been subjected to a certain procedure.
For that reason, I would like to refer to the plaintiff, the appellants as the consumers although, I think that is partially a misnomer in this case.
The appellees, I will refer to as the creditors again.
Well, again it is partially a misnomer.
Well, what is in question in this case is the Pennsylvania procedure of replevin with bond.
The Pennsylvania procedure of replevin with bond is similar in many ways to the Florida procedure which was considered in the Fuentes case.
However, there are very important distinctions on Pennsylvania.
As was pointed out in the arguments in Fuentes case, the replevin seizure in Florida is part of a proceeding which has already been commenced which will ultimately determine the rights of the parties to the particular goods which were seized.
That is not the case in the Pennsylvania replevin with bond procedure.
All that a creditor need to file in Pennsylvania to commence the replevin with bond procedure are four things.
One of these things as an entry of appearance, the other is an affidavit of what the value of the goods are, then he is going to go out and have seized.
The third thing is a bond and the bond must be in double the value of the goods that are being seized and the fourth thing is merely a praecipe to that which is directly to the prothonotary, asking or ordering the prothonotary to issue a writ of replevin at bond.
Now, what need to be included in such a praecipe?
Well, really nothing, except that it is just the direction, a form just as a direction to the prothonotary to issue the writ of replevin?
prothonotary as I had mentioned in the Swarb case, this morning is merely a court clerk.
All that the court clerk does is to examine to see whether in fact the four pieces of paper that have to be filed have been filed.
And if they have, he then ministerially issues the writ of replevin with bond to the sheriff and the sheriff is required to go out and forcibly seize the property from the consumer.
Now, this is the distinction in the Pennsylvania procedure, not only from the Florida procedure which was considered in Fuentes but also, even the procedures in New York which was the subject of the Laprease versus Raymours Furniture case and in California which was the subject to the Blair versus Pitchess case.
Both of these cases held that the procedures involved there were unconstitutional.
Another important feature of the Pennsylvania procedure which is probably distinct from Florida because it is not actually the beginning of an on-going process which is going to determine the party’s rights to the goods, is that for all practical purposes when the seizure is made by the sheriff, that is the end of the proceeding.
Usually, nothing further is filed.
Now there are three possible ways in which the consumer can possibly get that property back, and these three only.