Detailed Answer
This FAQ explains how to prepare, validate, and certify an affidavit of collection to recover personal property under Kentucky law. It covers two common methods: filing a replevin action in circuit court and enforcing a security interest under the Uniform Commercial Code (UCC).
1. Choose Your Legal Pathway
- Replevin Action: Recover wrongfully withheld personal property by filing a claim in circuit court. See KRS 427.010 for complaint requirements (KRS 427.010).
- Secured Party Repossession: If you hold a security interest, you may repossess collateral without court approval, provided you do not breach the peace. Requirements appear in KRS 355.960–.962 (KRS 355.960).
2. Draft the Affidavit of Collection
Your affidavit must accurately state the facts surrounding collection or repossession. At minimum, include:
- Your name, address, and role (e.g., secured party or plaintiff).
- Description of the personal property (make, model, serial number).
- Statement of default or wrongful withholding by the debtor.
- Actions you took to notify the debtor (for secured transactions, see KRS 355.611).
- Date, time, and method of collection or repossession.
- Affirmation that you complied with all statutory requirements and acted in a commercially reasonable manner.
3. Certify and Notarize
- Pennalty of Perjury: Add a clause such as “I declare under penalty of perjury under the laws of Kentucky that the foregoing is true and correct.” See KRS 523.020.
- Notarization: Sign the affidavit in the presence of a Kentucky notary public. Follow the requirements in KRS 423.210 (KRS 423.210).
4. File or Record Your Documents
- Replevin: File the affidavit with your complaint in circuit court. Pay the filing fee and request service on the defendant. See KRS 427.020–.040.
- UCC Matters: If your affidavit amends or terminates a financing statement, record it with the county clerk. Use the UCC–3 form for amendments/terminations.
5. Serve the Debtor or Interested Parties
- Under replevin, have the sheriff serve the summons and affidavit. See KRS 427.040.
- Under UCC repossession, no formal service is required beyond the required pre-sale notice to debtor and secondary obligors (KRS 355.612).
Helpful Hints
- Keep a complete file: copy of the affidavit, notices, service receipts, and sale records.
- Describe collateral in detail to prevent disputes over identity and value.
- Confirm Kentucky notary requirements, including seal and expiration date.
- Verify all statutory deadlines for notice and sale under KRS 355.612 and KRS 355.962.
- Consult with an attorney if the debtor contests your actions or the case raises complex defenses.
Disclaimer: This article provides general information only. It does not constitute legal advice and cannot substitute for consultation with a qualified attorney.