Tennessee § 29-30-104 - Filing of action — Process — Possessory hearing — Procedure — Forms.

§ 29-30-104. Filing of action — Process — Possessory hearing — Procedure — Forms.

The action to recover personal property shall be filed with the clerk and process shall issue. The process shall show on its face that a possessory hearing will be held on a date and a time specified before the judge or chancellor of the court where the action is filed. The purpose of the possessory hearing is to protect the defendant's use and possession of the property from arbitrary or mistaken deprivation. If the judge shall, after conducting the possessory hearing, find that the plaintiff's claim for immediate possession should be sustained, the judge shall issue a writ of possession. The possessory hearing shall be held in not less than five (5) nor more than twenty (20) days after the process is served upon the defendant; provided, failure to do so within the time period shall not be grounds for dismissal. The process shall notify the defendant that if the defendant fails to appear and offer evidence, the court shall issue the writ of possession, and in actions filed in courts of general sessions, the process shall also notify the defendant that if the defendant fails to appear and offer evidence, the judge shall enter a default judgment for the relief sought in the warrant. Whether or not the claim for immediate possession is allowed at a possessory hearing the action commenced hereunder shall be tried in all respects as other actions are tried in the particular court in which it is filed. The process in general sessions court shall have attached or annexed to it a blank form for the use of the court in entering its judgment and a blank form for the use of the defendant or defendants in waiving a hearing, all of which shall be in substantially the following form: “State of Tennessee County of To any lawful officer to execute and return: Summon to appear before the court of general sessions of County, Tennessee, to be held in the courtroom of the court in that county, on the day of , 20 , at a.m., then and there to answer in a civil action brought by for under $ . This is the day of , 20 . Clerk of the Court of General Sessions By: Deputy Clerk Judgment for the plaintiff for $ and the costs of the cause, and for the possession of the property described in the warrant. The officer is hereby directed to take the property described in the warrant out of the possession of the defendant(s) and deliver the same to the plaintiff(s). The plaintiff(s) shall dispose of the property in accordance with the applicable provisions of the Uniform Commercial Code and shall notify the defendant(s) the amount to be credited against this judgment prior to the issuance of any writ of execution. This day of , 20 . Judge” “WAIVER I (we), , the defendant(s) herein, acknowledge that the plaintiff is entitled to possession of the described property, and I (we) hereby voluntarily waive any right to a hearing by tendering the property herewith to the officer, and I (we) acknowledge that if I (we) do not appear and answer as to the merits of the matter on the date specified herein, that a default judgment may be entered against me (us). I (we) the defendant(s) herein acknowledge that the process server has read and explained to me (us) that I (we) have a constitutional right to a hearing and that I (we) are not required to sign this document of waiver and that I (we) have signed this document of waiver voluntarily. Defendant(s)” If the action to recover personal property is an action to satisfy a lien on a motor vehicle for repayment of a loan, the process in general sessions court shall also have attached or annexed to it a blank inventory from which shall be in substantially the following form: “INVENTORY I (we), , the defendant(s) herein, acknowledge that the following items are attached to or a part of the motor vehicle which is the subject of this action as described by the officer serving this process: (tires, type and model) (radio equipment) (stereo or tape equipment) (citizen's band radio) (other special items added to vehicle after purchase) Defendant(s) (Date) Officer Serving Process (Date) No objection shall be made as to the form of process if the essential matters of this section are set forth in the process. The process in all other courts shall have attached or annexed to it a blank form for the use of the defendant or defendants in waiving a hearing, all of which shall be in substantially the following form: “State of Tennessee County of To the Sheriff of County: I command you to summon the defendant, , to appear before , judge or chancellor for this county, on the day of , 20 , and answer the complaint of the plaintiff, , for recovery of the following property: (Describe property) This the day of , 20 Circuit Court Clerk (or Clerk and Master) By: ” “WAIVER I (we), , the defendant(s) herein, acknowledge that the plaintiff is entitled to possession of the described property, and I (we) hereby voluntarily waive any right to a hearing by tendering the property herewith to the officer and acknowledge that if I (we) do not appear and answer as to the entire matter on the date specified herein, a default judgment may be entered against me (us). Defendant(s)” Acts 1973, ch. 365, § 4; 1979, ch. 290, § 1; T.C.A., § 23-2344. Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Recovery of Personal Property, § 25. Law Reviews. Actions for Possession of Personal Property or, “Son of Replevin,” 23 No. 3 Tenn. B.J. 27 (1987). Creation, Perfection, and Enforcement of Security Interest Under the “Tennessee” Commercial Code (John A. Walker, Jr.), 48 Tenn. L. Rev. 819 (1981). Remedies Under the Tennessee Commercial Code (John A. Walker, Jr.), 30 Vand. L. Rev. 1197. Cited: Fred's Finance Co. v. Fred's of Dyersburg, Inc., 741 S.W.2d 903, 1987 Tenn. App. LEXIS 3203 (Tenn. Ct. App. 1987).