How do I get my stuff back? What to know about replevin cases in Iowa
Authored By: Iowa Legal Aid
- What is "replevin?"
- What will I have to prove to get my property back?
- Common situations where YOU have been sued in replevin
- Someone has sued me to get back an item I was given as a gift. What will I need to do?
- I took out a loan to buy a motorcycle / car / manufactured home. I haven’t been able to make the payments. Now I’ve been sued for replevin. What does this mean?
- I bought rent-to-own furniture, and now the Sheriff is at my door with a "writ of replevin." I haven't even been served with a lawsuit. What do I do?
- Finding legal assistance
Most of the time, lawsuits people file ask a court to give someone money to compensate them for something the other party did or didn't do. However, if someone has wrongfully taken or retained some personal property of yours and won’t give it back when you ask, you can file a special lawsuit to force them to return the property to you. That lawsuit is called a "replevin."
Replevin lawsuits only apply to what is called "personal property." Personal property includes everything from cars to furniture to professional equipment, and can even include pets or livestock. Personal property does not include land or structures like houses, sheds, etc. permanently attached to the land. Personal property can often include manufactured housing.
You will need to show that:
- you own that particular item,
- describe it in sufficient detail so that the judge and the other side knows what you’re talking about, and
- explain how the other side wrongfully took or retained your property.
If the item can’t be returned or has been destroyed, you may want to ask to be reimbursed for its value. If you ask to be reimbursed, you will need to prove what it is worth. You may also ask for damages for your loss of use during the time that the other party wrongfully kept the property.
The Small Claims Form 3.5 Original Notice and Petition for Replevin will prompt you to set out most of this information. If you have documents showing that you own something, like a certificate of title or even receipts, you should gather them.
You will need to file an answer. At the hearing, you will need to show that it was a gift. You may be able to do this by telling when and how you received it, that the other person treated it as a gift or told other people it was a gift.
I took out a loan to buy a motorcycle / car / manufactured home. I haven’t been able to make the payments. Now I’ve been sued for replevin. What does this mean?
You probably gave the creditor a "security interest" in your motorcycle. That means you said they could take back your motorcycle if you didn’t make payments. They usually have to give you notices of nonpayment and let you pay off the amount owed within a certain number of days. If you didn’t get those notices, it may be a defense to this action.
Normally, a creditor would repossess something like a car or motorcycle. However, if they can't find the vehicle, or it is not accessible to them to legally repossess, eventually they may file a replevin. For manufactured homes, they are almost never repossesed given the cost to do so (and many can't be moved at all). It is also hard to repossess something that human beings are living in without "breaching the peace." Because a manufactured home is considered personal property, i.e. not connected to the land, a lender must generally file for replevin to get the home back.
If you couldn’t pay off the amount, even though you got the notices, the creditor may have the right to sue you to get their collateral back. After they get it back by winning the replevin lawsuit, the property is usually sold and the amount received at the sale is subtracted from the full amount you owe. The creditor can then sue you in a separate lawsuit for any amount you still owe.
I bought rent-to-own furniture, and now the Sheriff is at my door with a "writ of replevin." I haven't even been served with a lawsuit. What do I do?
Sometimes people buy household items from businesses that operate on a lease or lease-to-own business model. These businesses often advertise low monthly payments, but in general it is a bad idea to fall for the hype. People "buying" these goods end up paying far more than the property is actually worth. Also, the rent-to-own industry has a lot of special protection under the law, so consumers generally have far less rights in these situations than in typical consumer credit cases.
When there is a dispute, it is common practice for rent-to-own companies to file for replevin and seek an immediate "writ of replevin." A writ of replevin is the document that allows the sheriff to come and require you to hand over the property. These immediate writs of replevin often are served even before people have notice of the lawsuit, or otherwise have a chance to dispute or respond. Generally speaking, courts do not set hearings about whether the replevin had a basis in the law.
If this happens to you, you may want to talk to a lawyer. Even though this is a common practice, it may not be legal. Generally speaking, constitutional due process requires that people get notice and a hearing if their property is taken -- usually before that happens, but if not than definitely as soon after as practicable. In Iowa, unfortunately, that does not currently happen for most people facing replevin by rent-to-own companies.
Iowa Legal Aid provides help to low-income Iowans.
To apply for help from Iowa Legal Aid:call 800-532-1275.
Iowans age 60 and over, call 800-992-8161 or
apply online at iowalegalaid.org
If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer” on the Iowa State Bar Association website iowabar.org. A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.
*As you read this information, remember this article is not a substitute for legal advice.