CopyCited 125 times | Published | Court of Appeals for the Eleventh Circuit | 1986 U.S. App. LEXIS 27357
...The court noted that the defendants had not "intended to wrongfully take possession of Personalty, wrongfully break and enter into premises of the Debtor, or exclude the Debtor from property of the estate." Id. 6 The bankruptcy court also discussed whether the defendants had failed to comply with Fla.Stat.Ann. Sec. 78.10 (West Supp.1986), which governs the execution of a writ of replevin on property in buildings or enclosures. 3 The court concluded that Sec. 78.10 permitted the sheriff to enter a locked building to execute a writ of replevin if he has "reasonable grounds" to believe that the concealed property is on the premises....
...s or made sufficient arguments to show that Section
78.068 provides less in the way of due process than is required in a replevin statute." Id. at 692. Turning to appellants' Fourth Amendment claim, the court observed that the question of "[w]hether section
78.10 permits and authorizes searches and seizures which are so unreasonable as to violate the Fourth Amendment is an issue fairly raised," but concluded that the dismissal of the damage claims "leaves this Court without jurisdiction to hear a claim brought under 28 U.S.C....
...We conclude, however, that the district court erred in finding that the good faith inquiry in a contempt proceeding is the same as the qualified immunity defense in a Sec. 1983 action. 11 We also find that the question of whether the defendants had complied with the requirements of due process and Sec. 78.10 in the issuance and execution of the writ was not actually and necessarily decided in the contempt proceeding....
...1983 action, we hold that collateral estoppel does not bar the instant case. 29 We also find no merit in appellees' contention that the bankruptcy court determined (1) that Sec.
78.068 satisfied the requirements of due process, and (2) that they had complied with the requirements of Sec.
78.10....
...t [Durbin] may have under state or federal law." Record on Appeal, vol. 1 at 205. Under these circumstances, we hold that the question of whether the defendants in the contempt proceeding had complied with the requirements of due process and of Sec. 78.10 was not actually and necessarily decided in the contempt proceeding....
...78eee(a)(3)), operates as a stay, applicable to all entities, of-- .... (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.... 11 U.S.C.A. Sec. 362 (a)(3) (West Supp.1986). 3 Fla.Stat.Ann. Sec. 78.10 (West Supp.1986) provides: 78 10....
CopyCited 26 times | Published | District Court, S.D. Florida | 9 U.C.C. Rep. Serv. (West) 137, 1971 U.S. Dist. LEXIS 14725
...ter the premises of the other (whether by *608 himself or through an officer who is executing a writ of replevin) in order to repossess property in which he has an interest. It may be that a forcible entry under these circumstances, pursuant to F.S. § 78.10, would not be legal or constitutional....
CopyCited 24 times | Published | District Court, S.D. Florida | 1970 U.S. Dist. LEXIS 10481
...s defense to the repossessionapparently that the stove was mechanically defective and that Firestone has failed to make satisfactory repairs. The specific sections of the Florida replevin statute which plaintiff attacks are F.S. §§
78.01,
78.08,
78.10,
78.11 and *957
78.12, F.S.A....
...In executing the writ the officer shall publicly demand delivery of property secreted or concealed in any dwelling house or other building and if it is not then delivered he shall cause the building to be broken open and, if necessary, he shall take to his assistance the power of the county (78.10)....
...ay enter the premises of the other (whether by himself or through an officer who is executing a writ of replevin) in order to repossess property in which he has an interest. It may be that a forcible entry under these circumstances, pursuant to F.S. § 78.10, F.S.A., would not be legal or constitutional....
...s constitutional. The declaratory and injunctive relief sought by the plaintiff is denied and judgment will be entered for the defendants. EATON, District Judge (dissenting). I respectfully dissent. I believe the question of the constitutionality of §
78.10, F.S.A. is before the Court and that the pre-judgment replevin procedure established by §§
78.01, 78.04, 78.07,
78.08 and
78.10, F.S.A., lacks the essential elements of due process....
...[3] Quoting from the stipulation of facts. [4] F.S. §§
78.11 and
78.12, F.S.A. are not really in issue here as they provide for replevin of property which has changed possession or has been removed from the jurisdiction of the court. Neither situation is involved here. Section
78.10 is not in issue either as will be seen later in this opinion.
