by Richard W. Millar, Jr.
In an earlier time in my life, I worked for Westinghouse Credit Corporation in downtown Oakland. At that time, and I have no idea if the company is still around, it engaged in wholesale and retail financing of appliances, furniture and other products. The wholesale financing consisted of, for example, financing dealers’ inventories and the retail financing consisted of the purchase of the sales contracts by which a retail customer financed a store purchase. From time to time, then as now, people defaulted. Residents of downtown Oakland were no exception. (Indeed, they may have been the rule, but I digress.)
While repossessing a large dealer’s entire inventory had obvious logistical problems, repossessing a recalcitrant debtor’s television set or stereo presented an entirely different set of difficulties.
We were outfitted with Nash Rambler station wagons (I told you this was a long time ago), which were sufficiently commodious for stereos and television sets but which, of course, were of no help in repossessing washing machines, dryers, refrigerators and other large appliances.
At one point, our fleet of Nash Ramblers was temporarily depleted by two railroad related accidents. In one instance, one of our representatives (or whatever we were called in those days) in a moment of inattention caused by, shall we say, the spasmodic afterglow of amorous activity with a female passenger, swerved onto railroad tracks, nicely wiping out the undercarriage. In another instance, another fellow, misjudging the space afforded by the backed-up traffic on the other side of a train crossing, lurched forward, rear-ending the car in front of him while leaving the Rambler’s rear end over the tracks, where it was promptly sheared off by an oncoming freight train. No one was hurt, but in both cases explaining the damages to skeptical bosses in Pittsburgh was uncomfortable, albeit for slightly different reasons.
At any rate, my fellow employees and I often repossessed things—things being the operative word. I never thought, for example, of judicially or extra-judicially repossessing a dog.
That is, of course, until now.
Neil and Samantha Walash owned an 85-pound English bulldog named Mo. Mr. Walash has brought an action for replevin, which is Latin for, “I want to repossess my dog,” against one Nicki Kilgour who currently possesses, if that is the right word, Mo. The cause is pending in the Supreme Court of Orange County. Not this Orange County—Orange County in New York.
So how did Ms. Kilgour end up with Mo? The story goes something like this.
Mr. Walash and Mrs. Walash are in the throes of a divorce. In August 2010, Samantha Walash brought Mo to Pet Spa and Resort, which is a highfalutin’ name for a kennel. Mrs. Walash was a regular customer there for many years and she would often board dogs while on vacation.
On September 5, 2010, Mr. Walash sent her a text asking, “Where r the dogs now?” Mrs. Walash responded tersely, “Pet spa.” Mr. Walash responded, “I don’t think it was a gud idea to bring dogs to kennel. They were just there for 10 days,” to which Mrs. Walash responded, “Ok.”
According to at least one version of events, there were further email exchanges in which Mr. Walash continued to ask Mo’s whereabouts which were met with elusive responses.
According to the allegations, it seems that Mrs. Walash did not leave Mo at the kennel to board him, but rather left him there to put him up for adoption. The kennel owner began placing ads to find an adoptive parent, if again that is the right word, for Mo, and ultimately selected Ms. Kilgour who signed “an adoption contract for ‘Mo’.”
In defense of Mr. Walash’s replevin action, Ms. Kilgour contended that Mr. Walash knew the dog was at the Pet Spa and that he had no standing to bring a replevin action against her, claiming his sole recourse was to seek economic damages through equitable distribution in the divorce action. She, in short, wished to retain Mo.
While I do not know how Mo feels about it, the Court determined that he was a “unique chattel,” and was the proper subject of a replevin action. The Court also found that the action was not subject to the Uniform Commercial Code, which maybe made Mo feel a little better. However, the Court felt that the initial factual presentation was insufficient to determine where Mo would end up and ordered further hearings.
I do not know whether there will be any publicly available determination from the Court by the time this goes to press, but there is at least one thing I do know.
Despite his size, Mo would have fit into my Nash Rambler Wagon.
Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at email@example.com.