Amendment ASA1-AB620

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1999 - 2000 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 1999 ASSEMBLY BILL 620

March 6, 2000 - Offered by Representatives Montgomery and Walker.

AB620-ASA1,1,11 An Act to repeal 814.04 (1) (b); to amend 812.34 (1) (a), 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, 815.18 (3) (k), 895.035 (2), 895.80 (1), 895.80 (2), 895.80 (3) (b), 943.24 (3) (b), 943.24 (3) (c), 943.245 (3), 943.245 (4), 943.51 (3) and 943.51 (3m); to repeal and recreate 895.80 (3) (a) and 895.80 (4); and to create 218.04 (9j), 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, garnishment, attorney fees, exemption from execution of accounts, civil actions by collection agencies, earnings garnishment, retail theft and recovery in actions involving worthless checks.

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

AB620-ASA1, s. 1 Section 1. 218.04 (9j) of the statutes is created to read:

AB620-ASA1,2,7 218.04 (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.

AB620-ASA1, s. 2 Section 2. 812.34 (1) (a) of the statutes is amended to read:

AB620-ASA1,2,10 812.34 (1) (a) Was ordered by a court under s. 128.21 or by a court of bankruptcy any court of the United States under Title 11, USC 1301 to 1330.

AB620-ASA1, s. 3 Section 3. 812.34 (2) (a) of the statutes is amended to read:

AB620-ASA1,2,14 812.34 (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.

AB620-ASA1, s. 4 Section 4. 812.34 (2) (b) 1. of the statutes is amended to read:

AB620-ASA1,2,17 812.34 (2) (b) 1. The debtor's household income is below the poverty line, or the garnishment would cause that result; or

AB620-ASA1, s. 5 Section 5. 812.34 (2) (c) of the statutes is created to read:

AB620-ASA1,2,22 812.34 (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.

AB620-ASA1, s. 6 Section 6. 812.37 (1) of the statutes is amended to read:

AB620-ASA1,3,10 812.37 (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. 59.07 (154), 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.

AB620-ASA1, s. 7 Section 7. 812.37 (2) of the statutes is amended to read:

AB620-ASA1,3,17 812.37 (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.

AB620-ASA1, s. 8 Section 8. 812.38 (1) (b) of the statutes is amended to read:

AB620-ASA1,3,24 812.38 (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.

AB620-ASA1, s. 9 Section 9. 812.38 (2) of the statutes is amended to read:

AB620-ASA1,4,16 812.38 (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.

AB620-ASA1, s. 10 Section 10. 812.44 (3) (form) 3. of the statutes is amended to read:

AB620-ASA1,4,21 812.44 (3) (form) 3. Whenever you receive a debtor's answer form from the debtor, mail a copy of the answer form and any documents the debtor included with the answer form to the creditor by the end of the 3rd business day after receipt of that form. Include the date you received the answer form on the copy sent to the creditor.

AB620-ASA1, s. 11 Section 11. 812.44 (4) (form) 1. of the statutes is amended to read:

AB620-ASA1,4,25 812.44 (4) (form) 1. Your household income is below the federal poverty level, or this garnishment would cause that to happen. See the enclosed schedules and worksheet to determine if you qualify for this exemption.

AB620-ASA1, s. 12 Section 12. 812.44 (4) (form) 3. of the statutes is amended to read:

AB620-ASA1,5,3 812.44 (4) (form) 3. At least 25% of your disposable earnings are assigned by court order for support.

AB620-ASA1,5,6 If the garnishment of 20% of your disposable income would result in the income of your household being below the poverty line, the garnishment is limited to the amount of your household's income in excess of the poverty line.

AB620-ASA1,5,13 If you qualify for a complete exemption or for a limit on the amount of the garnishment to the amount that your household's income exceeds the poverty line, you must give or mail a copy of the enclosed debtor's answer form to the garnishee, along with the schedules and worksheets and any other documents supporting your answer, such as a wage statement, a court order regarding the payment of support or a document showing the receipt of any of the benefits listed under paragraph 2 above in order to receive that increased exemption.

AB620-ASA1,5,15 If your circumstances change while the garnishment is in effect, you may file a new answer at any time.

AB620-ASA1,5,19 If you do not qualify for a complete exemption, but you will not be able to acquire the necessities of life for yourself and your dependents if your earnings are reduced by this earnings garnishment, you may ask the court in which this earnings garnishment was filed to increase your exemption or grant you other relief.

AB620-ASA1,5,21 IF YOU NEED ASSISTANCE CONSULT AN ATTORNEY

AB620-ASA1,6,2 If you have earnings that are being garnisheed that are exempt or subject to a defense, the sooner you file your answer or seek relief from the court, the sooner such relief can be provided. This earnings garnishment affects your earnings in pay periods beginning within 13 weeks after it was served on the garnishee. You may agree in writing with the creditor to extend it for additional 13-week periods until the debt is paid.

AB620-ASA1,6,3 PENALTIES

AB620-ASA1,6,6 If you wrongly claim an exemption or defense in bad faith, or if the creditor wrongly objects to your claim in bad faith, the court may order the person who acted in bad faith to pay court costs, actual damages and reasonable attorney fees.

AB620-ASA1, s. 13 Section 13. 814.04 (1) (a) of the statutes is amended to read:

AB620-ASA1,6,15 814.04 (1) (a) When the amount recovered or the value of the property involved is $1,000 or over greater than the maximum amount specified in s. 799.01 (1) (d), attorney fees shall be $100 $500; when it is equal to or less than $1,000 and is $500 or over, $50 the maximum amount specified in s. 799.01 (1) (d), but is $1,000 or more, attorney fees shall be $300; when it is less than $500 and is $200 or over, $25; and when it is less than $200, $15 $1,000, attorney fees shall be $100. In all other cases in which there is no amount recovered or that do not involve property, attorney fees shall be $300.

AB620-ASA1, s. 14 Section 14. 814.04 (1) (b) of the statutes is repealed.

AB620-ASA1, s. 15 Section 15. 814.04 (2) of the statutes is amended to read:

AB620-ASA1,7,5 814.04 (2) Disbursements. All the necessary disbursements and fees allowed by law; the compensation of referees; a reasonable disbursement for the service of process or other papers in an action when the same are served by a person authorized by law other than an officer, but the item may not exceed the authorized sheriff's fee for the same service; amounts actually paid out for certified and other copies of papers and records in any public office; postage, telegraphing photocopying, telephoning, electronic communications, facsimile transmissions and express or overnight delivery; depositions including copies; plats and photographs, not exceeding $50 $100 for each item; an expert witness fee not exceeding $100 $300 for each expert who testifies, exclusive of the standard witness fee and mileage which shall also be taxed for each expert; and in actions relating to or affecting the title to lands, the cost of procuring an abstract of title to the lands. Guardian ad litem fees shall not be taxed as a cost or disbursement.

AB620-ASA1, s. 16 Section 16. 814.07 of the statutes is amended to read:

AB620-ASA1,7,9 814.07 Costs on motion. Costs may be allowed on a motion, in the discretion of the court or judge, not exceeding $50 $300, and may be absolute or directed to abide the event of the action.

AB620-ASA1, s. 17 Section 17. 815.18 (3) (k) of the statutes is amended to read:

AB620-ASA1,7,13 815.18 (3) (k) Depository accounts. Depository accounts in the aggregate value of $1,000, but only to the extent that the account is for the debtor's personal use and is not used as a business account.

AB620-ASA1, s. 18 Section 18. 895.035 (2) of the statutes is amended to read:

AB620-ASA1,7,24 895.035 (2) The parent or parents with custody of a minor child, in any circumstances where he, she or they may not be liable under the common law, are liable for damages to property, for the cost of repairing or replacing property or removing the marking, drawing, writing or etching from property regarding a violation under s. 943.017, for the value of unrecovered stolen property or for personal injury attributable to a wilful, malicious or wanton act of the child. The parent or parents with custody of their minor child are jointly and severally liable with the child for the damages imposed under s. 895.80, 943.212, 943.24, 943.245 or 943.51 for their child's violation of s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50 or 943.61.

AB620-ASA1, s. 19 Section 19. 895.08 of the statutes is created to read:

AB620-ASA1,8,4 895.08 Suit by collection agency. In addition to the requirements of ss. 801.09 (1), 801.095, 802.04 (1) and 815.05 (intro.), in an action brought by a collection agency under s. 218.04 (9j), the collection agency shall include in the caption, under its name, the names of the creditors on whose behalf the action is brought.

AB620-ASA1, s. 20 Section 20. 895.80 (1) of the statutes is amended to read:

AB620-ASA1,8,13 895.80 (1) Any person who suffers damage or loss by reason of intentional conduct that occurs on or after November 1, 1995, and that is prohibited under s. 943.01, 943.20, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50 or 943.61, or by reason of intentional conduct that occurs on or after April 28, 1998, and that is prohibited under s. 943.201, or by reason of intentional conduct that occurs on or after the effective date of this subsection .... [revisor inserts date], and that is prohibited under s. 943.011, 943.012 or 943.017, has a cause of action against the person who caused the damage or loss.

AB620-ASA1, s. 21 Section 21. 895.80 (2) of the statutes is amended to read:

AB620-ASA1,8,21 895.80 (2) The burden of proof in a civil action under sub. (1) is with the person who suffers damage or loss to prove his or her case a violation of s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50 or 943.61 by a preponderance of the credible evidence. A conviction under s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50 or 943.61 is not required to bring an action, obtain a judgment or collect on that judgment under this section.

AB620-ASA1, s. 22 Section 22. 895.80 (3) (a) of the statutes is repealed and recreated to read:

AB620-ASA1,9,2 895.80 (3) (a) Actual damages, including the retail or replacement value of damaged, used or lost property, whichever is greater, for a violation of s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50 or 943.61.

AB620-ASA1, s. 23 Section 23. 895.80 (3) (b) of the statutes is amended to read:

AB620-ASA1,9,5 895.80 (3) (b) All costs of investigation and litigation that were reasonably incurred, including the value of the time spent by any employe or agent of the victim.

AB620-ASA1, s. 24 Section 24. 895.80 (3) (c) of the statutes is created to read:

AB620-ASA1,9,9 895.80 (3) (c) Exemplary damages of not more than 3 times the amount awarded under par. (a). No additional proof is required under this section for an award of exemplary damages under this paragraph.