Is There Any Way I Can Get Back My Personal Property If It Is Being Held By My Landlord Or Someone Else?
Do I Have to Have A Lawyer To Get A Court Order?
What Do I Need To Do?
There are several ways to get a court order. We will explain the easiest two ways. First, you can sue in Small Claims Court if the total value of your property is $6,000 or less. In Small Claims Court, the judge can order that you be paid money for the value of the property that was illegally held, or he can order that the property itself be returned. The District Court Clerk for the District that serves your town will give you information on how to file in Small Claims Court – or go to the Court's web site.
If you decide to sue in Small Claims Court, this material does not apply to you. You should use the Court's Small Claims instructions provided by the court.
The second way to get your property back is to file in the District Court a "Complaint for Summary Proceeding to Recover Personal Property.” A hearing can be held as soon as seven days after the complaint has been served on the person who is holding your property. If you win, the judge will order that your property be returned.
Which Procedure Should I Use?
It depends on your situation. A Summary Proceeding is usually faster than going to Small Claims Court. However, in a Summary Proceeding, your remedy is probably limited to the return of your property. So, for example, if you believe that your property has been damaged so that you no longer want it returned, or is gone, and you can show its prior value, Small Claims Court may be a better choice. If you know that your landlord still has your property, then a Summary Proceeding will be quicker.
Important Note: If you are thinking about bringing either type of complaint against your former landlord, read Rights of Maine Renters: Abandoned Property first. If your landlord is claiming that you owe him money, his claims against you make your case more complicated. He may have the right to withhold some of your property until your debt is settled.
How Do I Bring A Complaint For Summary Proceeding To Recover Personal Property?
You must file a Complaint with the District Court where:
- You live,
- Where your landlord lives,
- Where you had your personal property when you were renting, or
- Where your personal property is now.
How Do I File A Complaint?
Here is a summary of the steps:
- The first thing you need to do is fill out a Complaint for Recovery of Personal Property Form (Complaint).
- Next you need to get and fill out a Personal Property Recovery Summons (Summons). You must purchase this from from the District Court office; the fee is $5. When you go in to pick up the form, you can also ask the court clerk to provide you with a hearing date.
- Next you need to have copies of the complaint and the summons delivered to the person you are suing. To do this officially, the Sheriff's Office must make the delivery and it must be done 7 days before the hearing date.
- Finally, you need to file the original Complaint and Summons with the court clerk. This should be done at least 2 days before the hearing date.
You can find more detailed information about each step below. The court also posts Instructions for Filing a Summary Personal Property Recovery Case.
Will I Be Asked To Pay All Of The Court Costs?
Yes. If you can't afford to pay the filing fee or the costs of service, however, you can get a form called Application to Proceed Without Payment of Fees and an Indigency Affidavit. Get these forms from any District Court clerk, or get them online (see below). Fill them out and return them to the clerk. Your signature on the Affidavit form must be notarized. If the judge agrees that you don't have enough money, you won't have to pay the fees. (If you need help with filling out these forms, go to our page on Court Fee Waivers.)
Get interactive versions of the forms here:
How Do I Fill Out The Complaint?
Use our interarctive version of the Complaint form or print off the form and neatly print your information in the blank spaces of the form. Here is a brief desription of the information you'll need to put in each section:
- Location: court use, leave blank
- Docket No.: court use, leave blank
- Plaintiff: your full name
- Defendant: the full name of the person you are suing
- NOW COMES: your full name
- where your property is currently located; if you do not know where it is located, then where it was taken from (for example, the apartment where you left it)
- the property you want returned; be specific; attach another sheet of paper if your property list is long.
- the full name of the person you are suing
- WHEREFORE: where your property is currently located, if you do not know where it is located, then where it was taken from
- Dated: the date you fill the form out
- Plaintiff: your signiture
- Bar Number: the bar number of your attorney if you are being represented by one, if not then leave blank
What Is A Summons?
You must notify the defendant that you are filing a court complaint. You must give this notice at least 7 days before a court hearing. You do this with a Summons.
First call the court clerk for the District Court where you will be filing your case. Tell the clerk that you will be filing a Complaint for Summary Proceeding to Recover Personal Property and need a court hearing date. Pick a time that will give the sheriff enough time to locate and serve the person who has your property. It is a good idea to pick a hearing date that will be at least 14 days after you give the papers to the sheriff's office for service.
Write down the time and date the clerk gives you. Also ask the clerk for the street address of the court. You will need this information to fill out the Summons. You can pick up the Summons at the courthouse; there is a $5 fee.
What Do I Do With My Completed Forms?
Next, you need to “file” and “serve” the papers. First make one copy of each form (for you to keep) and one more copy of the Complaint and Summons (for the Defendant). You will give the originals to the court clerk.
You can either “serve” the papers first, or “file” the papers first. If you are asking for a fee waiver (read more about fee waivers), then you will need to file first (read more on how to file). If you are going to pay the court fees and service costs yourself, then it is easier to “serve,” then “file.” Follow the steps outlined below.
How Do I Notify The Other Person About The Court Hearing?
Once your paperwork is ready, you will need to ask the sheriff’s office to make “personal service” of the papers on the Defendant. These are the papers you will give to the sheriff:
- One copy of the Complaint, including any attached papers. You keep the original Complaint. You'll file it later with the Court Clerk.
- The original and one copy of the Summons.
Call the sheriff's office in the county where the defendant is living, working, or can be easily located. If the defendant is out of state, ask your local county sheriff to give you the address of the sheriff's department in the county where the defendant lives.
Then hand-deliver or mail your court papers to the sheriff. Explain what you need to have done. Explain where and when the defendant might be served most easily. Also, remember to explain that the papers must be served at least 7 days before the date of your hearing.
A deputy hand-delivers copies of the Complaint and Summons to the defendant. The deputy will fill out the bottom part of the original Summons to show that service has been made. The original Summons will be returned to you. You’ll file this original Summons with the Court Clerk later.
Do I Have To Pay For This Service?
Do I Still Have To Pay If The Judge Has Waived my Court Fees?
No. If the Court approved your "Application to Proceed Without Payment of Fees,” you can send the sheriff's bill directly to the District Court for payment. Ask the clerk for an "attested" copy of the judge's order waiving your fees. Give it to the sheriff when you deliver the papers for service.
How Do I File the Forms?
Your next step is to file the original of your Complaint with the District Court. The clerk will need your completed Summary Sheet, as well. You must pay the court’s filing fee at this time (unless the judge grants your fee waiver request).
Remind the clerk that your Complaint asks for a recorded hearing. You will need this record if you decide later to appeal the judge's decision.
Once you have received the original Summons back from the sheriff's office, file it with the Court Clerk also. (If you aren’t asking for a fee waiver, you can file all of your court papers at the same time, after you get the Summons back from the sheriff.)
Keep copies of all your court papers to refer to at your hearing.
NOTE: If you are "filing" your papers with the court before "serving" copies on the Defendant, go back to information on "serving" the papers after you have completed this step.
What Should I Expect On The Day Of The Hearing?
At your hearing, you will appear before a judge. Be prepared to prove that you own your property. To do this, you should bring every paper, sales receipt or bill that relates to the property. You can also bring any people who have first-hand knowledge that you own the property. For example, if a relative gave you an item as a present, it would be helpful to ask that relative to come to court and testify about giving you the gift.
Remind the judge that you asked for a recorded hearing.
What Happens If The Defendant Does Not Show Up At The Hearing?
If the Defendant was served with the Summons and Complaint and is not in court, the judge will probably issue a default judgment. This means that you have won the case.
What Should I Expect If The Defendant Does Show Up?
If the defendant does show up, the judge will first ask you to tell him what the case is about. You should explain clearly that you own certain property and that the defendant has it and will not give it back. If you have receipts or other papers showing that you own the property, show them to the judge. If you have brought witnesses who can testify that they have first-hand knowledge that you own the property, ask the judge to allow them to testify. You can then ask your witnesses to tell the judge how they know that you own the property.
The Defendant can ask you or your witnesses questions. The Defendant may also testify and bring in his own witnesses. You can question the Defendant and his witnesses.
What Happens After The Hearing?
If the judge agrees that you own the property, he or she will issue an Order saying that. Seven days after the judge's decision, you can ask the Court Clerk to give you a Writ of Possession, or download an interactive form to request the Writ. The clerk needs to issue an "attested" copy of the Writ. Then take the Writ to the sheriff or police department nearest to your property, and ask for an officer to go with you to get your property.
What Should I Do If I Disagree With The Judge's Decision?
Either side may appeal the judge's decision. The appeal must be filed within 21 days of the judge's decision. An appeal must be based on a legal issue. If you just disagree with the trial judge’s reasonable findings of fact, an appeal probably won’t do you any good. If you want to file an appeal, talk to a lawyer right away. Get an interactive Notice of Appeal form here.
Updated October 2013