An annuity does not have to comply with multiple provisions of the Internal Revenue Code (IRC) to qualify for an exemption under sub. (3) (j). “Complies with the provisions of the internal revenue code" in sub. (3) (j) 2. a. means eligibility to receive the tax deferral applicable to annuities under the IRC. Since the IRC taxes most income in one way or another, the critical issue in taxing an annuity is whether the taxpayer can benefit from deferred taxation of the implicit appreciation of the principal paid up front for the stream of later income. Accordingly, the most sensible reading of the statute is that the exemption under sub. (3) (j) should not depend on whether the annuity is taxable in accordance with the IRC but rather whether the tax is deferred in accordance with the IRC. Wittman v. Koenig, 831 F.3d 416
Updating Wisconsin's exemption law. Ludwig and Pouros. Wis. Law. Aug. 1990.
Levy on personal property; appraisal. 815.19(1)(1)
Personal property shall be bound from the time it is seized. Whenever personal property is seized on attachment or execution and any part of the property is exempt therefrom and the exemption is claimed by the debtor or the debtor's spouse, the officer making the seizure shall, upon request by either of them, or may upon the officer's motion, cause the exempt property to be appraised by 2 disinterested freeholders of the county, who shall first be sworn by the officer to make a true appraisement thereof, which appraisement shall be in writing, be signed by the appraisers and be prima facie evidence of the value of the property appraised. The appraisement, together with the true inventory of all the property seized, shall be returned with the writ. The fees of the appraisers are prescribed in s. 814.72
If the property seized is an automobile which is appraised and can be sold for more than $1,000 or if the property seized is a tractor used in farming operations which is appraised and can be sold for more than $1,500, the officer may sell such automobile or tractor and out of the proceeds of such sale the officer shall pay to the debtor or the debtor's spouse the exempted value of such automobile or tractor. The balance of the proceeds of such sale shall be applied on the execution or attachment.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); 1975 c. 94
s. 91 (3)
; 1975 c. 199
; Stats. 1975 s. 815.19; 1979 c. 355
; 1981 c. 317
; 1983 a. 186
Levy on real property; how made.
Levy of execution on real property is made by endorsing on the execution a description of the property on which the levy was made, and recording the execution, so endorsed, in the office of the register of deeds.
History: 1973 c. 189
; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.195; 1993 a. 301
Homestead exemption definition. 815.20(1)(1)
An exempt homestead as defined in s. 990.01 (14)
selected by a resident owner and occupied by him or her shall be exempt from execution, from the lien of every judgment, and from liability for the debts of the owner to the amount of $75,000, except mortgages, laborers', mechanics', and purchase money liens and taxes and except as otherwise provided. The exemption shall not be impaired by temporary removal with the intention to reoccupy the premises as a homestead nor by the sale of the homestead, but shall extend to the proceeds derived from the sale to an amount not exceeding $75,000, while held, with the intention to procure another homestead with the proceeds, for 2 years. The exemption extends to land owned by husband and wife jointly or in common or as marital property, and each spouse may claim a homestead exemption of not more than $75,000. The exemption extends to the interest therein of tenants in common, having a homestead thereon with the consent of the cotenants, and to any estate less than a fee.
Any owner of an exempt homestead against whom a judgment has been rendered and entered in the judgment and lien docket, and any heir, devisee, or grantee of the owner, or any mortgagee of the homestead, may proceed under s. 806.04
for declaratory relief if the homestead is less than $75,000 in value and the owner of the judgment shall fail, for 10 days after demand, to execute a recordable release of the homestead from the judgment owner's judgment lien.
History: 1973 c. 168
; Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.20; 1983 a. 186
; 1985 a. 153
; 1993 a. 486
; 1995 a. 224
; 2009 a. 80
A defendant who has moved to Michigan intending to stay there lost his Wisconsin homestead exemption. He cannot have an exemption in 2 states. Plan Credit Corp. v. Swinging Singles, Inc. 54 Wis. 2d 146
, 194 N.W.2d 822
A vendee in a land contract has an interest sufficient to sustain a homestead exemption. The holder of a judgment lien is subject to a mortgage dated after the judgment. A homestead exemption does not depend on a formal claim to it. Occupancy at the time a lien attaches is sufficient. Lueptow v. Guptill, 56 Wis. 2d 396
, 202 N.W.2d 255
Rental income from a rented portion of a homestead is exempt under the homestead exemption. Schwanz v. Teper, 66 Wis. 2d 157
, 223 N.W.2d 896
Property purchased by a debtor subsequent to the docketing of a judgment and immediately occupied as a homestead becomes exempt to the extent of the statutory protection. Northern State Bank v. Toal, 69 Wis. 2d 50
, 230 N.W.2d 153
Homestead rights are no greater than the underlying property rights when those property rights have been limited by the owners themselves. Master Lock Credit Union v. Rayford, 119 Wis. 2d 301
, 349 N.W.2d 737
(Ct. App. 1984).
Owners who permanently remove themselves from a home that is for sale with the intent of using the proceeds to procure another home are entitled to a homestead exemption in the sale proceeds. Moore v. Krueger, 179 Wis. 2d 449
, 507 N.W.2d 155
(Ct. App. 1993).
Because a judgment lien was subject to the homestead exemption while a federal tax lien was not, the operation of the homestead exemption effectively subordinated the otherwise superior judgment lien to the status of a junior lien, which was discharged by operation of federal law by the execution of the IRS's quitclaim deed after judicial sale. CVW, Ltd. v. Stress, 230 Wis. 2d 450
, 602 N.W.2d 162
(Ct. App. 1999), 99-0252
When equity in a homestead exceeds $40,000, the homestead is partially exempt, and a docketed judgment is a lien upon the debtor's equity in excess of the $40,000. If a debtor has less than $40,000 in equity, the homestead is fully exempt, and the debtor has no interest to which a judgment lien may attach. Accordingly a debtor-seller can give clear title to the purchaser of fully exempt property. Rumage v. Gullberg, 2000 WI 53
, 235 Wis. 2d 279
, 611 N.W.2d 458
An in-court oral stipulation could create a mortgage interest in property, but under s. 706.02 (1) (f), a homestead conveyance must bear the conveyor's signatures. Because the stipulation lacked signatures, it was not a mortgage that could defeat the homestead exemption under sub. (1). Equitable Bank, S.S.B. v. Chabron, 2000 WI App 210
, 238 Wis. 2d 708
, 618 N.W.2d 262
A homestead created and maintained with stolen or embezzled property, or by the wrongful appropriation of property rightly belonging to others, is not protected by the homestead exemption. Estate of Paulman v. Pemberton, 2001 WI App 164
, 246 Wis. 2d 909
, 633 N.W.2d 715
Although debts were contracted prior to the effective date of an increase in the homestead exemption, the debtors were entitled to higher the exemption. Matter of Zahn, 605 F. 2d 323
The homestead exemption is void under the supremacy clause of the U.S. constitution to the extent that it impedes a federal court restitution order. U.S. v. Lampier, 89 F.3d 1316
Establishment and abandonment of a Wisconsin homestead. Kreitler, 1973 WLR 876.
Judgment lien claimants' rights against homestead exemption interests: An equitable distribution of mortgage foreclosure sale proceeds. 1981 WLR 697.
Certain property of spouse exempt from execution. 815.205(1)(1)
Property described in s. 806.15 (4) (intro.)
is exempt from execution on a judgment lien that attaches to that property under s. 806.15 (4) (b)
if the property is not available under s. 766.55
to satisfy the obligation for which the judgment was rendered.
If execution is issued in connection with the enforcement of a judgment lien on property that is exempt under sub. (1)
from execution on the judgment lien, a person with an ownership interest in the property other than the judgment debtor may, at any time before the sale of the property, notify the officer making the levy that the property is exempt from execution. The person making the notification of the exemption shall provide the officer with a description of the property.
If notification is made under par. (a)
, sale of the property is stayed if, within 5 days after the notification, demand on the owner of the judgment is made by a person with an ownership interest in the property other than the judgment debtor for a recordable release of the property from the judgment. If within 5 days after the demand the owner of the judgment fails to execute the recordable release, the stay on the sale of the property continues if a person with an ownership interest in the property other than the judgment debtor commences an action under s. 806.04
for declaratory relief within 15 days after the demand was made. The stay on the sale of the property continues until the court determines whether the property is exempt under sub. (1)
. If no action under s. 806.04
is commenced within the required period, the stay lapses on the expiration of the required period.
If the sale of property is stayed under this subsection, no additional stay on the sale of that property is available under this subsection, regardless of whether the additional stay is sought by the person who initially gave notice under par. (a)
or by any other person with an ownership interest in the property.
History: 1991 a. 301
Homestead, how set apart after levy. 815.21(1)(1)
Whenever a levy shall be made upon lands of any person, the landowner may notify the officer making such levy, at any time before the sale, that the landowner claims an exempt homestead in such lands, giving a description thereof, and the landowner's estimate of the value thereof; and the remainder alone shall be subject to sale under such levy, unless the plaintiff in the execution shall deny the right to such exemption or be dissatisfied with the quantity or estimate of the value of the land selected.
If such plaintiff is dissatisfied with the quantity selected or the estimate of the value thereof, the officer shall cause such lands to be surveyed, beginning at a point to be designated by the owner and set off in compact form. After the lands are surveyed and set off, if in the opinion of the plaintiff, the same shall be of greater value than $75,000, the officer may still advertise and sell the premises so set off, and out of the proceeds of such sale pay to the exempt homestead claimant the sum of $75,000 and apply the balance of the proceeds of such sale on the execution; but no sale shall be made in the case last mentioned unless a greater sum than $75,000 is paid for said premises. The expenses of such survey and sale shall be collected on the execution if the owner claimed as the owner's homestead a greater quantity of land or land of greater value than the owner was entitled to; otherwise such expenses shall be borne by the plaintiff.
If such survey be made the land not exempt shall be sold, but if any person shall neglect or refuse to select the person's exempt homestead and notify such officer, such officer shall, upon request of the plaintiff, and may without such request, give notice to such person that at a time and place to be therein named such officer will survey and locate the exempt homestead; and unless such person shall on or before the time so fixed select such exempt homestead, such officer shall survey and locate and set the same off in a compact form. If the owner after such notice selects the owner's exempt homestead, this section shall apply the same as if the owner had selected it before such notice.
A homestead so selected and set apart by such officer shall be the exempt homestead of such person. The costs of such notice and survey shall be collected upon the execution. A failure of the officer to set apart such homestead shall affect such levy, only as to such homestead; and the failure of such person to select that person's homestead shall not impair that person's right thereto, but only that person's right to select the same when such selection is lawfully made by such officer. After such homestead is thus set off by such officer, if, in the officer's opinion or in the opinion of the plaintiff, the premises are of greater value than $75,000 the officer may sell the same as where the owner makes the selection.
If the land claimed as an exempt homestead exceeds in value $75,000, the officer shall not be bound to set off any portion thereof but may sell the same, unless the debtor shall make the debtor's selection of such a portion thereof as shall not exceed $75,000 in value.
History: 1973 c. 168
; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.21; 1985 a. 153
; 1993 a. 486
; 2009 a. 80
There is a strong public policy to protect the homestead exemption, even in the face of inaction. Sub. (1) provides that when there is a levy upon the lands of any person, that person can claim a homestead exemption at any time before sale. Anchor Savings & Loan Association v. Week, 62 Wis. 2d 169
, 213 N.W.2d 737
Indemnity may be required.
If there is any reasonable doubt as to the ownership of the property or as to its liability to be taken on the execution the officer may require sufficient security to indemnify the officer for levying upon such property.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.24; 1993 a. 486
The term “reasonable" requires that the officer provide a reason for requiring security. Ter Maat v. Barnett, 156 Wis. 2d 737
, 457 N.W.2d 551
(Ct. App. 1990).
Money applied; negotiable instruments sold.
Upon executions against property the officer shall levy upon any current money of the United States and shall pay and return the same without exposing it for sale, and the officer may also levy upon and sell any evidences of debt circulated as money, or a bond or other instrument for the payment of money which is negotiable or payable to the bearer or holder.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.25; 1993 a. 486
When personal property is subject to a security interest, the right and interest of the debtor in such property may be sold on execution against the debtor, subject to the rights, if any, of the secured party.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.26; 1993 a. 486
Notice of sale of personal property, manner, adjournment. 815.29(1)(1)
No execution sale of personal property shall be made unless 20 days previous notice of such sale has been given by posting a notice thereof in one public place of the town or municipality where such sale is to be had and, if the county where such sale is to be had maintains a website, by posting a notice on the website. If the town or municipality where such sale is to be had maintains a website, the town or municipality may also post a notice on its website. The notice shall specify the time and place of sale but when any property seized is likely to perish or depreciate in value before the expiration of the 20 days the court or a judge may order the same to be sold in such manner and upon such terms as the best interests of the parties demand. Every such sale shall be made at auction between the hours of 9 a.m. and 5 p.m. and no property shall be sold unless it is in view of those attending the sale, except as provided in ss. 71.91 (5) (c) 2.
and 108.22 (3) (b)
and in the case of the sale of the interest of the judgment debtor in property in the possession of a secured party. It shall be offered for sale in such lots and parcels as is calculated to bring the highest price.
Such sale may be adjourned as provided in s. 815.31
for sale of real estate.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.29; 2009 a. 325
; 2015 a. 55
; 2017 a. 157
; 2017 a. 365
Notice of sale of realty; manner; adjournment. 815.31(1)(1)
The time and place of holding any sale of real estate on execution shall be publicly advertised by posting a written notice describing the real estate to be sold with reasonable certainty in one public place in the town or municipality where such real estate is to be sold and, if the county where such real estate is to be sold maintains a website, by posting a notice on the website, at least 3 weeks prior to the date of sale; and also in one public place of the town or municipality in which the real estate is situated, if it is not in the town or municipality where the sale is to be held and, if the county where such real estate is situated maintains a website, also posting a notice on the website. If the town or municipality where such real estate is situated or is to be sold maintains a website, the town or municipality may also post a notice on its website.
A copy of the notice of sale shall be printed each week for 3 successive weeks in a newspaper of the county prior to the date of sale.
If there be no newspaper published in the county and the premises are not occupied by any person against whom the execution is issued or by some person holding as tenant or purchaser under the person against whom the execution is issued, such notice shall be so published in a paper printed at Madison.
The court, or a judge, upon application of the party issuing the execution shall direct, by order, the newspaper in which the publication of the notice is to be made.
If at the time appointed for any such sale the sheriff considers it in the interest of all persons concerned, the sheriff may adjourn the sale from time to time, not exceeding in all 3 months. In case of such adjournment public notice thereof shall be given at the time and place fixed for the sale. If the adjournment shall be for more than one day further notice shall be given by posting or publishing the same, or both, as the time and circumstances may admit.
Every sale shall be at auction between 9 o'clock in the forenoon and 5 o'clock in the afternoon.
History: 1973 c. 189
; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.31; 1993 a. 486
; 2009 a. 325
; 2011 a. 136
; 2017 a. 365
Execution; sale in parcels; limitation.
When real estate offered for sale on execution consists of several lots, tracts or parcels they shall be separately offered for sale; and if any person claiming to be the owner of any of such lots or parcels or an interest or estate therein or claiming to be entitled to redeem the same shall require it to be offered for sale separately, the sheriff shall offer the same for sale accordingly. No more shall be sold than shall appear necessary to satisfy the execution.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.33.
Execution sale without notice.
Any officer who shall sell real estate upon execution without having given the previous notices directed by s. 815.31
, or otherwise than in the manner prescribed by law, shall be liable to the party injured in the sum of $1,000 damage and also for the actual damages sustained.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.34.
Execution; taking down notice.
If any person shall take down or deface any notice of a sale upon execution put up by any officer, previous to the day of sale therein specified, unless upon satisfaction of the execution or upon the consent of the parties to the action, such person shall be liable to the party suing out such execution in the sum of $50.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.35.
Execution sale, want of notice, when immaterial.
The omission of any officer to give the notice of execution sale required or the taking down or defacing of any such notice shall not affect the validity of any sale made to a purchaser in good faith, without notice of any such omission or offense.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.36.
Execution sale; officer not to purchase.
The officer to whom any execution shall be directed and the officer's deputy holding any execution and conducting any sale in pursuance thereof shall not, directly or indirectly, purchase any property at such sale; and every purchase made by such officer or deputy, or to the officer's or deputy's use, shall be void.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.37; 1993 a. 486
Execution, certificate of sale, recording. 815.38(1)(1)
Upon the sale of real estate on execution the officer making the same shall make out and subscribe duplicate certificates of such sale containing a particular description of the premises sold; the price bid for each distinct lot or parcel; the whole consideration money paid; and the time when such sale will become absolute and the purchaser will be entitled to a conveyance pursuant to law and shall record one of the duplicate certificates within 10 days after the sale in the office of the register of deeds and shall deliver the other to the purchaser. If there are 2 or more purchasers a certificate shall be delivered to each.
Promptly following every execution sale the sheriff shall return the execution into court and record with it a detailed report of his or her doings upon the execution.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.38; 1993 a. 301
See s. 59.32 (2)
for provision that sheriff is to collect his fees on execution in the same manner as the sum collected under the writ.
Execution sale; redemption of real estate. 815.39(1)(1)
Except as provided in sub. (2)
, within one year after an execution sale the real estate sold, or any lot, tract or portion that was separately sold, may be redeemed by the payment to the purchaser, to the purchaser's personal representatives or assigns, or to the sheriff of the county where the real estate is situated, for the use of such purchaser, of the sum paid on the sale thereof, together with the interest from the time of the sale.
If an execution sale is for a lien filed under s. 823.23 (5)
, the period of redemption under sub. (1)
is 2 months.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.39; 1993 a. 486
; 2001 a. 86
Execution sale; who may redeem. 815.40(1)(1)
Redemption from execution sale of real estate may be made by a person whose right and title was sold or, if the person is dead, by the person's devisee of the premises sold, and if the same shall not have been devised, by the deceased's heirs; or, by any grantee of such person who shall have acquired an absolute title to the premises sold, or to any lot, parcel or portion separately sold.
Any such heir or devisee or grantee who shall have acquired an absolute title to a portion of the estate sold or a portion of any lot, tract or parcel that shall have been separately sold may redeem the portion on the same terms and in the same manner as if the heir, devisee or grantee were grantee of the whole lot or parcel, and shall have the same remedy to enforce contributions from those who shall own the residue thereof as if the sum required to be paid by the heir, devisee or grantee to effect such redemption had been collected by a sale of the portion belonging to such grantee, heir or devisee.
If there be joint tenants or tenants in common in premises sold each tenant may redeem the share or interest belonging to that tenant by paying to the purchaser or officer, a sum that will bear the same proportion to the whole sum bid therefor as the redeemed share bears to the whole number of shares in such premises together with the interest.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.40; 1993 a. 486
Execution sale; redemption makes sale void.
Upon redemption of any real estate sold on execution, the sale of the premises redeemed and the certificates of such sale, so far as they relate thereto, shall be null and void.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.43.
Execution; purchaser's interest.