How Do You Get Back Personal Property in Illinois?
July 18, 2019
Replevin is a statutory remedy in Illinois and is an action in which the owner or person entitled to the possession of goods or personal property (i.e. chattels) from one who has wrongfully detained or wrongfully takes property that belongs to another. This can be found at 735 ILCS 5/19-101. The basis for replevin is the plaintiff's right (or superior right) to immediate possession of the goods or chattels. A replevin action must be brought by the person having the possessory right and the property sought must be personal property. This means that the property must be specific property capable of identification and return. In addition, the replevin action must be brought in the county where the goods or chattels are found.
The procedure for filing a replevin begins with the plaintiff filing a complaint and subsequently making a motion requesting that the court enter an order for replevin by identifying the goods or chattels at issue. Thereafter, an order for replevin will issue and the property will be seized pursuant to the court order. The order will state that the plaintiff has established a prima facie case to a superior right of possession of the disputed property and a likelihood of success on the merits (i.e. they will likely ultimately prevail on the underlying claims for possession). In addition, the court order will summon the defendant to appear in court for trial on a set date. There are specific steps for how one must go about certifying the order and place it with the sheriff for the seizure of the property identified therein. Assuming this occurs, the next step is a trial on the complaint and the prevailing party receives a final order for possession.
Replevin with Notice.
The replevin action is deemed to be with notice or without notice and depending on whether the person you are seeking to recover property on receives notice of the replevin hearing. The Complaint should be verified (i.e. a legal term of art that is an affidavit verifying the truth of the allegations therein) that sufficiently describes the property at issue, a statement that the plaintiff is the owner of the property or entitled to legal possession of the property, a statement that the property is being wrongfully detained by the defendant, that the property has not been taken for any lawful purpose such as for tax, assessment, or fine or seized under any execution attachment, and lastly, that the plaintiff has demanded return of the property without success.
The plaintiff may assert that the defendant has waived notice but the waiver must be done in accordance with Illinois law. If the property at issue is consumer in nature, i.e. primarily for personal, family, household or agricultural purposes, the defendant cannot waive notice. If it is not consumer in nature, the waiver or notice must be voluntary, in writing, intelligent and knowingly. Best case scenario, have the defendant be given notice and an opportunity to appear so the notice is not later attacked by the defendant. Thereafter, the plaintiff will have to obtain a replevin bond and place it with the sheriff along with the order for replevin. Our firm is experienced at preparing the replevin notice, the complaint, the bond, and the replevin order and filing these documents with the clerk of court in the county in Illinois in which the property is located.
Replevin without Notice.
In addition to establishing the superior right to possession, a plaintiff seeking to justify the use of replevin without notice must fall within one of the exceptions found in 735 ILCS 5/19-106. There are a few exceptions, such as protecting the plaintiff from immediate and impending harm which would result in the imminent destruction or concealment of the disputed property or removal of the disputed property from Illinois or if the item was perishable, to name a few exceptions.
At the hearing, the court will examine the evidence submitted and determine whether notice is not required and enter an order in accordance with that finding. Assuming the replevin order is issued, the replevin bond will be executed and delivered to the sheriff along with the replevin complaint and a certified replevin order. Upon service of the order, the sheriff will be directed to seize the property and return it to the plaintiff unless the defendant executes a bond in an amount for double the value of the property.
There may be third parties who claim a right to possession and seek to intervene in the lawsuit. This will be heard by the court and the court will determine possession of the disputed property and/or damages. If the defendant or a third-party claim that the seizure of the property was wrongful, the plaintiff will be required to indemnify the sheriff in the amount of the damages awarded by the court, which is why a bond is required. A replevin lawsuit can be commenced by using forms found on the county website where the property can be found. The procedure must be followed precisely, and it is important to take great care in filing the replevin action as well as making sure you follow the procedural steps and timing with precision. Our firm has successfully handled many replevin actions, so contact us today if you are looking to recovery goods or chattels that are being wrongfully held by another.