AB651: Bill Text

LRB-2647/1

MJL&RPN:wlj:rs

2003 - 2004 LEGISLATURE

2003 Assembly BILL 651

November 10, 2003 - Introduced by Representatives Montgomery, Olsen, Musser, Hines, LeMahieu, Hahn, Gard, Vrakas, Rhoades, Grothman, Bies, Townsend, McCormick, Hundertmark, Owens, Krawczyk, J. Fitzgerald, Kestell, Suder, Albers, Powers and Gunderson, cosponsored by Senators Stepp, Kanavas, Schultz, Lassa, Welch, Breske, Hansen, Roessler and Cowles. Referred to Committee on Judiciary.

AB651,2,2 An Act to repeal 814.04 (1) (b); to amend 16.007 (6) (a), 799.01 (1) (c), 799.01 (1) (d) (intro.), 799.01 (2), 802.04 (1), 812.34 (2) (a), 812.34 (2) (b) 1., 812.37 (1), 812.37 (2), 812.38 (1) (b), 812.38 (2), 812.44 (3) (form) 3., 812.44 (4) (form) 1., 812.44 (4) (form) 3., 814.04 (1) (a), 814.04 (2), 814.07, 814.634 (1) (b) and (c), 815.18 (3) (k), 895.035 (2), 895.035 (4), 895.80 (1), 895.80 (2), 895.80 (3) (b), 938.245 (2) (a) 5. am., 938.32 (1t) (a) 1m., 938.45 (1r) (a), 938.45 (1r) (b), 943.212 (7), 943.24 (3) (b), 943.24 (3) (c), 943.245 (3), 943.245 (4), 943.245 (8), 943.51 (3), 943.51 (3m) and 943.51 (6); to repeal and recreate 895.80 (3) (a) and 895.80 (4); and to create 29.962, 218.04 (9j), 799.01 (1) (e), 812.34 (2) (c), 895.08, 895.80 (3) (c) and 895.80 (6) of the statutes; relating to: parental liability for acts of their minor child, recovery of damages for certain criminal actions, increasing the jurisdictional amount in small claims court, garnishment, attorney fees, exemption from execution of accounts, civil actions by collection agencies, earnings garnishment, retail theft, recovery in actions involving worthless checks, and revocation of fish and game approvals for which payment is made by worthless checks.

Analysis by the Legislative Reference Bureau

This bill increases the jurisdictional limit in small claims actions from $5,000 to $10,000, except for actions based on negligence, which remain at the $5,000 limit. This change results in a corresponding increase in the amount that the claims board pays a claimant without submitting a bill to the legislature but maintains the $5,000 limit on the amount a parent may have to pay for damages caused by his or her child.

Current law provides for limited payment of attorney fees by the unsuccessful litigant to the successful litigant in all civil actions. In a civil action concerning money damages or property, the successful litigant is entitled to attorney fees based on the following schedule: - See PDF for table

This bill changes the amount of attorney fees allowed in these cases as follows: - See PDF for table

The bill also increases the amount of attorney fees recoverable in civil cases that do not involve money damages or property from a maximum of $100 to a maximum of $300.

Under current law, in civil cases certain disbursements, such as those made for the costs of certified copies of public papers or records, postage, and depositions, are recoverable by the successful litigant, but are limited to $50 for each item. This bill expands the list of disbursements that are recoverable to include such items as overnight delivery and facsimile transmissions and increases the limit to $100 for each item. The bill also increases the amount that a successful litigant may recover for the cost of each expert witness testifying on behalf of the successful litigant from $100 to $300 and for filing a motion from $50 to $300.

Under current law, the earnings exemption in earnings garnishment actions provides that a debtor's earnings are totally exempt if the debtor's income is below the poverty line or if the garnishment would cause that result. Under this bill, a debtor's earnings are totally exempt if the debtor's income is below the poverty line, but if the garnishment would result in the debtor's income being below the poverty line, the amount garnished is limited to the debtor's income in excess of the poverty line. The bill requires debtors who claim earnings exemptions to submit with their answer to the garnishment the schedules and worksheets that were given to them with the garnishment, plus any supporting documents. The bill restricts the exemption from execution for depository accounts to those depository accounts that are for the debtor's personal use.

Under current law, a person who suffers damage as a result of certain crimes against property may sue the person that caused the damage. Currently, the person may recover treble damages plus the costs of the investigation and litigation. Under the bill, the person may recover his or her actual damages, including the value of the damaged property, the costs of the investigation and litigation, and the value of the time spent by an employee, and exemplary damages of not more than three times the amount of actual damages. Any recovery is reduced by any amount received as restitution.

Current law provides that the total amount a person may receive for exemplary damages and attorney fees in an action to recover damages resulting from the issuance of a worthless check or retail theft is limited to $500. This bill provides that the $500 limit applies for each violation.

This bill allows licensed collection agencies to consolidate a creditor's accounts related to a particular debtor with those of other creditors related to that debtor and bring an action on behalf of those creditors against the debtor. The bill provides that the collection agency that brings the action is a real party in interest for purposes of maintaining the action under the rules of civil procedure. The bill requires the collection agency, when it brings an action consolidated on behalf of a number of creditors, to include the names of the creditors in the caption of the action.

The bill also authorizes certain issuing agents appointed by the Department of Natural Resources (DNR) to report to DNR persons who pay for fish and game licenses, stamps, and other approvals with worthless checks. An issuing agent may make such a report after having attempted to receive payment from the person who paid for the approval. Upon receipt of the report, DNR must revoke the approval. The bill requires the approval holder to return the approval to DNR.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB651, s. 1 Section 1. 16.007 (6) (a) of the statutes is amended to read:

AB651,4,3 16.007 (6) (a) Except as provided in par. (b), whenever the claims board by unanimous vote finds that payment to a claimant of not more than the amount specified in s. 799.01 (1) (d) is justified, it may order the amount that it finds justified to be paid on its own motion without submission of the claim in bill form to the legislature. The claim shall be paid on a voucher upon the certification of the chairperson and secretary of the board, and shall be charged as provided in sub. (6m).

AB651, s. 2 Section 2. 29.962 of the statutes is created to read:

AB651,4,15 29.962 Worthless checks for approvals. If a person tenders a check or other order for payment to an issuing agent appointed under s. 29.024 (6) (a) 3. to make payment for an approval issued under this chapter to an issuing agent, and the check is drawn on an account that does not exist or on an account with insufficient funds, or is otherwise worthless, the issuing agent may give notification to the department of the fact after having made an effort to receive payment from the person who tendered the check or other payment. If the issuing agent gives such notification, the department shall revoke the approval and send notification to the holder of the approval that it has been revoked for failure to make payment for the approval. The holder of the approval shall return the approval to the department within 7 days after receiving the notification.

AB651, s. 3 Section 3. 218.04 (9j) of the statutes is created to read:

AB651,4,23 218.04 (9j) Civil action by licensee. A licensee may, after receiving authorization from a creditor, consolidate the creditor's account or accounts relating to a particular debtor with those of any other creditor or creditors relating to that debtor and may bring an action on behalf of the creditor or creditors. A licensee that brings an action under this subsection is the real party in interest under s. 803.01 (2) for purposes of maintaining an action. A licensee that brings an action under this subsection shall comply with the caption requirements of s. 895.08.

AB651, s. 4 Section 4. 799.01 (1) (c) of the statutes is amended to read:

AB651,5,2 799.01 (1) (c) Replevins. Actions for replevin under ss. 810.01 to 810.13 where the value of the property claimed does not exceed $5,000 $10,000.

AB651, s. 5 Section 5. 799.01 (1) (d) (intro.) of the statutes is amended to read:

AB651,5,5 799.01 (1) (d) Other civil actions. (intro.) Other civil actions where the amount claimed is $5,000 $10,000 or less, if the actions or proceedings are:

AB651, s. 6 Section 6. 799.01 (1) (e) of the statutes is created to read:

AB651,5,8 799.01 (1) (e) Negligence claims. Notwithstanding par. (d), civil actions arising out of a claim based on negligence where the amount claimed is $5,000 or less.

AB651, s. 7 Section 7. 799.01 (2) of the statutes is amended to read:

AB651,5,13 799.01 (2) Permissive use of small claims procedure. A taxing authority may use the procedure in this chapter in an action to recover a tax from a person liable for that tax where the amount claimed, including interest and penalties, is $5,000 $10,000 or less. This chapter is not the exclusive procedure for those actions.

AB651, s. 8 Section 8. 802.04 (1) of the statutes is amended to read:

AB651,6,5 802.04 (1) Caption. Every pleading shall contain a caption setting forth the name of the court, the venue, the title of the action, the file number, and a designation as in s. 802.01 (1). If a pleading contains motions, or an answer or reply contains cross-claims or counterclaims, the designation in the caption shall state their existence. In the complaint the caption of the action shall include the standardized description of the case classification type and associated code number as approved by the director of state courts, and the title of the action shall include the names and addresses of all the parties, indicating the representative capacity, if any, in which they sue or are sued and, in actions by or against a corporation, the corporate existence and its domestic or foreign status shall be indicated. In pleadings other than the complaint, it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Every pleading commencing an action under s. 814.61 (1) (a) or 814.62 (1) or (2) and every complaint filed under s. 814.61 (3) shall contain in the caption, if the action includes a claim for a money judgment, a statement of whether the amount claimed is greater than the amount under s. 799.01 (1) (d) or, if the claim is based on negligence, s. 799.01 (1) (e).

AB651, s. 9 Section 9. 812.34 (2) (a) of the statutes is amended to read:

AB651,6,9 812.34 (2) (a) Unless the court grants relief under s. 812.38 (2) or par. (b) or (c) applies, 80% of the debtor's disposable earnings are exempt from garnishment under this subchapter.

AB651, s. 10 Section 10. 812.34 (2) (b) 1. of the statutes is amended to read:

AB651,6,12 812.34 (2) (b) 1. The debtor's household income is below the poverty line, or the garnishment would cause that result; or.

AB651, s. 11 Section 11. 812.34 (2) (c) of the statutes is created to read:

AB651,6,17 812.34 (2) (c) If the garnishment of 20% of the debtor's disposable income under this subchapter would result in the debtor's household income being below the poverty line, the amount of the garnishment is limited to the debtor's household income in excess of the poverty line before the garnishment is in effect.

AB651, s. 12 Section 12. 812.37 (1) of the statutes is amended to read:

AB651,7,5 812.37 (1) Except as provided in s. 812.34 (1), the debtor may claim an exemption under s. 812.34 (2) (b) or a limit to the garnishment under s. 812.34 (2) (c), or may assert any defense to the earnings garnishment, by completing the answer form and delivering or mailing it to the garnishee, along with the schedules and worksheets provided under s. 812.35 (4) (b) and any other documents supporting his or her answer, such as a wage statement, a court order regarding the payment of support or a document showing the receipt of aid to families with dependent children, relief funded by a relief block grant under ch. 49, relief provided by counties under s. 59.53 (21), medical assistance, supplemental security income, food stamps, or veterans benefits based on need under 38 USC 501 to 562 or s. 45.351 (1). The debtor or debtor's spouse may file an answer or an amended answer and documentation at any time before or during the effective period of the earnings garnishment.

AB651, s. 13 Section 13. 812.37 (2) of the statutes is amended to read:

AB651,7,12 812.37 (2) Whenever the garnishee receives a debtor's answer or amended answer and the schedules, worksheets, and other documents, the garnishee shall mail a copy of the answer, schedules, worksheets, and any other documents the debtor included with the answer to the creditor by the end of the 3rd business day after receiving the debtor's answer and documents, writing on that copy the date of receipt of the answer and documents by the garnishee.

AB651, s. 14 Section 14. 812.38 (1) (b) of the statutes is amended to read:

AB651,7,19 812.38 (1) (b) The debtor may file with the court a written petition for relief from the earnings garnishment if the exemption percentage under s. 812.34 (2) (a) is insufficient for the debtor to acquire the necessities of life for the debtor and his or her dependents. The petition shall state with reasonable specificity the grounds for the relief requested and shall include any additional information necessary to support the petition.

AB651, s. 15 Section 15. 812.38 (2) of the statutes is amended to read:

AB651,8,11 812.38 (2) A motion or petition under sub. (1) may be made at any time during the pendency of the earnings garnishment. Within 5 business days after a motion or petition is filed under sub. (1), the court shall schedule the matter for a hearing to be held as promptly as practicable. The court shall notify the parties of the time and place of the hearing. Upon conclusion of the hearing, the court shall make findings of fact and conclusions of law. If the debtor has failed to produce the schedules and worksheets or other documents necessary to support a claim for exemptions or other defenses, the court shall award the creditor his or her costs related to the motion in an amount of not less than $50. An award under this subsection may not substitute for or replace an award made under sub. (3). The court shall make such order as required by these findings and conclusions. If the order permits the garnishment to proceed, the date on which the order is served upon the garnishee shall substitute for the original date of service of the garnishment upon the garnishee under s. 812.35 (3) for the purpose of determining any 13-week period under s. 812.35 (5) or (6). A court order shall bind the garnishee from the time the order is served upon him or her.