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Help ILAO open opportunities for justiceIf your property (other than real estate; land, house, or apartment) has been wrongfully taken or kept, you can ask the court to have it returned to you. This is called “replevin.” You must be the legal owner of the property or lawfully entitled to possess it. If you are the owner, you must have bought the item or received it as a gift or inheritance. Examples of this include: jewelry, animals, mobile homes, and vehicles. Lawfully entitled to possession is for cases where there is a written agreement for someone to pay for something and they fail to pay like a car loan when the car is pledged to secure payment.
The property you wish to recover must be able to be easily identified, moved, and returned. Property attached to a house or building that cannot be moved without damaging the property may not be replevined.
Before proceeding with a replevin lawsuit, you must know where the property is located with reasonable certainty. If you do not know, you will not be able to tell the sheriff where it is located. You will be wasting your time and court costs.
In the case where you do not know where the property is located, there is another way to proceed. Even if you know where the property is located, you may use this alternative procedure. It is called “detinue.” It is a common law procedure to recover property developed before the replevin law was written into Illinois statutes.
A detinue case is relatively simple. Replevin cases are extremely complex. Attorneys who practice recovering property favor detinue unless there are very particular circumstances such as property being destroyed or removed from the county.
Before beginning any court case, there are several questions to ask yourself:
It costs time and money to file a case in court. Court cases may take several months and even a year or years to finish. Court cases often include:
There are other options besides going to court that cost less and are faster:
Before you begin either a detinue or replevin, send a letter to the other person demanding the property be returned. Remember to keep a copy. Send the letter by email or regular mail. Certified mail is not required and is usually a waste of time and money. You do not need to prove they received the letter, only that you sent it.
After you have sent your letter and have not received the property from the other person, prepare a detinue complaint along with a summons to bring the party to court.
If you are unable to pay the filing fee, apply for a fee waiver on the Illinois Courts website. You can also use our fee waiver easy form, which helps you create documents.
If you have a witness, they should appear with you. You may want to contact the sheriff's office a couple days before the court date to see if they were able to deliver the papers. If they were unable to deliver the papers, find out why and then go to court without your witness. The judge will assign a new court date. You will then have to fill out a new (alias) summons in the clerk’s office, pay a fee, and bring it to the sheriff's office.
On the date set for the trial:
If the court rules in your favor, it will order the property to be returned or enter a judgment against the defendant for its value. The court may give you damages for the time the defendant held your property. These damages are very hard to prove, and judges generally don't give them. (Ex: defendant kept your milk cow for a week and you could not get and sell its milk. The value of its milk production for the week would be your damages.) If the court rules in favor of the defendant, your case will be dismissed.
If the sheriff is unable to recover the property, you may ask the judge to hold the defendant in contempt of court and to be punished until the property is returned.
A replevin case is used to have the sheriff pick-up the property before the court has a full hearing or trial in the case. In replevin, the court holds a preliminary hearing to see if you, the plaintiff, have proper reasons to have the sheriff get the property.
The preliminary hearing may be done with notice or without notice sent to the person holding the property. Courts do not like to issue replevin orders without a preliminary hearing but will do so “to protect the plaintiff from an immediately impending harm which will result from:”
Again, courts do not favor no-notice replevin orders.
Most replevin cases start with the plaintiff sending a notice of hearing to the defendant. At the hearing, the court will hear both parties and decide if the sheriff should be ordered to pick-up the property. If the order is granted, the court will direct the sheriff to pick-up the property and in addition, tell both parties to come back to court at a later date for a full hearing or trial. At the trial, the court will make its final decision as to who will be able to keep the property.
If the court enters an order for replevin at the preliminary hearing, the plaintiff will be required to post a bond for the sheriff's office before it will pick-up the property. The bond will be for twice the value of the property. You determine the value and put it in your complaint. You will need to check with the court clerk or sheriff's office to find a list of companies approved to issue a bond. The usual charge is 1% of the bond with a base amount of at least $100.00. In addition, the company issuing the bond will require you to have, and perhaps send them, the full amount of the bond you are requesting. Sometimes this amount may be posted in cash with the court clerk or sheriff.
Before you file a replevin, investigate getting a bond and make sure you are able to get one. If you are not able to get a bond, do not file the replevin. Return to the instructions for detinue!
If you are able to get a bond and proceed in replevin, you must also be aware that every sheriff has the right to determine what, if anything, it will do to recover the property. Generally, they will not treat the case as they would a criminal matter. Most will not enter a house or locked garage or building without an additional court order. Most will not go onto property if there will be a “breach of the peace” such as a confrontation of any kind. If the sheriff does not recover the property it will report the reason to the court. The judge will determine what happens next.
If the sheriff does get the property and the judge later determines that you were wrong in trying to get it back, you may be ordered to pay the defendant for any harm you caused them. This may include their attorney fees, court costs, and anything else they may have lost.
If you still want to file a replevin after reading about all the potential problems, you will need to:
You file your case. Check with your court clerk as to how the case must be filed, electronically or on paper. The clerk will also let you know when you should come to court.
When you go to court, the judge will tell you if you must notify the defendant before a replevin order will be granted. If a notice is required, you will need to have the sheriff deliver the notice to the defendant. The judge will also set another court date.
If the judge grants your request for an order for replevin, you will receive another date for everyone to appear in court for a trial. Take the order for replevin to the sheriff along with the bond.
The sheriff will tell you how they will proceed with delivering the order and recovering the property. The sheriff is able to set its own process. For example, if recovering a car, they may require you to hire a tow-truck to pick up the car under their [no-lexicon] supervision [/no-lexicon] . If they are authorized to enter a locked garage you may be required to have a locksmith present along with the tow-truck. The sheriff will determine who gets to hold and protect the property until the court makes a final decision.
When you return to court for the trial you must have your evidence and witnesses present in court. If you fail to do so, the court may dismiss your case. Also, a continuance may be granted for either party if they have a very good reason to delay the trial.
At the trial, the court will make a final decision on who may keep the property. If you do not like the decision you may appeal to a higher court with three judges. The process is extremely complicated and difficult. The slightest procedural error frequently results in the appeal being dismissed. Therefore, you should consult an attorney.