If your property has been wrongfully taken or kept, you can ask the court to have the property returned to you. This is called "replevin." You must be the legal owner of the property, meaning you bought it yourself or someone gave it to you as a gift.
The property must be able to be:
The most common example of property that can be asked for in a replevin case is an engagement ring. If the engagement is called off, both people might think they have a legal claim to the ring. The ring can be moved, you can describe what it looks like, and it can be given back to you. Even a mobile home counts as property you can get returned, if it meets these conditions.
When you start a replevin case, you can either:
- Let the other side know you're going to court and wait until the court makes a decision before asking the Sheriff to go get your property; or
- Not tell the other side about your case and ask the court to order the Sheriff to go get your property and then decide if you really are the owner.
If you don't tell the other side, you have to tell the judge why the defendant shouldn't be warned about the case. These reasons are usually to prevent the defendant from doing something to the property such as:
- Hiding it
- Selling it
- Destroying it
- Taking it to another state
If your property was stolen, you don't have to warn the defendant about the case. If you don't warn the other side, you will need to post a bond. This means you must promise that if the court decides you aren't the true owner, you will pay any damages the defendant has because of the court case. If the court finds that you have to pay damages, you may have to pay up to twice what the property in dispute is worth. You will only have to pay the bond if the court decides you aren't the true owner.
If the value of the property is $5,000 or less, you may be able to file your case in the court’s Small Claims division. When you file your case, you must post a bond equal to twice the value of the property. This is similar to posting a bond for an appeal, or for bail in a criminal case. If you cannot afford the bond amount, you could instead purchase a surety bond from an insurance company or bond contractor for a fraction of the full bond price.
If the defendant has already hidden, sold, destroyed, or taken the property out of state, you can still take them to court but you will be asking the court for detinue instead of replevin. A detinue action means the court makes someone pay for the property they took instead of just giving the property back.
Starting a replevin case
Chance of success
There are several questions to ask yourself before starting a court case.
- Who are you filing a case against? Can they give you what you are asking for if you win the case?
- Why are you filing a case? Do you have enough information to support your side?
- How much time has passed since the issue happened? You may not be able to file a case if it happened a while ago because there are statutes of limitations.
Costs of a court case
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:
- Fees to file your case, if you cannot get them waived
- Lawyer fees or your own time spent figuring out the court process and doing the paperwork
- Time spent in court, which may be time you have to take off work
- In a replevin case, you must post a bond that is double the value of the property you're trying to get back, so you need to have that money available
Other options besides going to court
There are other options besides going to court that cost less and are faster.
- Settle: Come to an agreement with the other party on your own. You have more control of the outcome because a judge or jury is not making the final decision.
- Mediation: Reach an agreement with the other party with the help of a neutral third party. The mediator does not decide what happens. The mediator helps you reach an agreement that is documented in a contract that both parties must follow.
Step 1: Fill out the complaint forms
If you're in Cook County, you can use our Request return of property in Cook County program to fill out the forms listed below. If you are in another county, you can use the Request return of property form (Replevin).
- Replevin Complaint: This form tells the court about the property that was taken from you and explains why you are the rightful owner. You will need one copy for each defendant and one for yourself.
- Order for Replevin: The judge will sign this form if they believe that the property is yours. This form tells the Sheriff's office to go get the property and bring it back to you. You will need one copy to give to the Sheriff's office, and one copy for yourself.
- Replevin Bond Form: If you want the property taken from the defendant and returned to you while the court decides who the property really belongs to, you have to promise that if the court decides it's not your property, you will pay any of the defendant's damages. You will need 3 copies for the Sheriff's office and one for yourself.
- Notice of Hearing for the Issuance of an Order of Replevin: This form is sent to the defendant to let them know there is a court case for the disputed property and lets them know when to come to court. You will need one copy for each defendant and one copy for yourself.
If you do not have money to pay court fees, you should also fill out a fee waiver application:
- Application for Waiver of Court Fees : Asks the court to participate in the court case for free if you do not have money to pay the court filing fees.
Step 2: File your forms with the court
Now that you have filled out your forms, take the following actions:
- File the forms with the circuit clerk at the courthouse in the county where you live, where the defendant lives, or where the disputed property is, to start your court case. You may be able to file online. Check your local circuit clerk’s website to see if online filing is an option.
- Pay the court filing fee or get a fee waiver. There are fees to file most court forms. The fees depend on what kind of case you have. To find out how much the fees are, contact your local circuit clerk's office. If you don’t have the money to pay the fees, file the Application for Waiver of Court Fees you filled out in Step 1. The court will review your Application for Waiver of Court Fees and decide whether you have to pay the court fees.
- The circuit clerk will stamp and keep the original forms. Have the circuit clerk also stamp the extra copies of your forms. Keep at least one copy for your records.
- Ask the circuit clerk for the first court date. The circuit clerk will either give you the court date when you ask or tell you how you will find it out.
Step 3: Tell the other party about your case
If you don't want the Sheriff to seize the property before the court case, you will have to tell the other side that you've filed a case. After filing, you must send the other party or parties a notice or summons and the complaint. A summons is a document that tells a person about the lawsuit and when to come to court. Here are the rules to know about a summons:
- The defendant must receive the notice at least 5 days before the hearing ;
- You may send the summons by personal service by the Sheriff or by certified mail;
- There is a usually a cost to have a summons served. The cost depends on how the summons is served to the other party; and
- If you do not give the other party a summons telling them about your lawsuit within the required time, the lawsuit may be dismissed because there was not proper notice of the lawsuit.
Step 4: Going to court for a replevin case
You should have received a hearing date and time on the written notice from the other party or circuit clerk. If you cannot find your court date and time, call the circuit clerk.
Bring these items to your court hearing:
- Any documents proving the property is yours, such as receipts, the title, tax papers
- Any documents proving the other party took the property wrongfully
It is important to follow the below suggestions when going to court:
- Get to the courthouse at least 30 minutes before your hearing time. Go to the courtroom listed on your court forms. If your forms do not have a courtroom number, look for a list of cases at the courthouse or ask the circuit clerk;
- Check in quietly with the courtroom staff and wait for your name and case number to be called; and
- When your case is called, walk up to the judge and introduce yourself. Briefly tell the judge what you want out of the case. After listening to you and the other side, the judge will let you know what happens next.
If this is your first time going to court, learn more about the process of Going to court in Illinois.