Fuentes v. Shevin: Due Process and the Consumer, A Legal and Empirical Study

The United States Supreme Court decided the case of Fuentes v. Shevin which held unconstitutional, on due process grounds, the prejudgment replevin procedures established by statute in the states of Florida and Pennsylvania. Although the case will no doubt become known simply as Fuentes, the Court was actually presented with the claims of five appellants which were similar enough to permit consolidation on a single appeal. Four contested the right of a secured seller to replevy goods under a state replevin procedure which made no provision for any form of hearing prior to the time a writ was issued and executed. This proportion of four out of five dramatically underlines one common fact pattern in which the replevin process is available for use-unpaid creditors seeking some form of recovery from defaulting consumer-debtors. Although the decision in Fuentes itself did not turn on the fact pattern of creditor v. consumer, it is in this matrix that one would expect the case to have its greatest impact. This article, in Part I, will examine the background and the decision in Fuentes, its place in the constitutional development of procedural due process, its impact on the prejudgment replevin statutes of the several states, and the import of the decision for the practicing lawyer. In Part II, the focus of the article will shift to an empirical study of the actual effects of the decision on business practices and the business responses of selected creditor groups to those effects.