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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
1An Act to repeal 814.04 (1) (b);
to amend 812.34 (1) (a), 812.34 (2) (a), 812.34
2(2) (b) 1., 812.37 (1), 812.37 (2), 812.38 (1) (b), 812.38 (2), 812.44 (3) (form) 3.,
3812.44 (4) (form) 1., 812.44 (4) (form) 3., 814.04 (1) (a), 814.04 (2), 814.07, 815.18
4(3) (k), 895.035 (2), 895.80 (1), 895.80 (2), 895.80 (3) (b), 943.24 (3) (b), 943.24
5(3) (c), 943.245 (3), 943.245 (4), 943.51 (3) and 943.51 (3m);
to repeal and
6recreate 895.80 (3) (a) and 895.80 (4); and
to create 218.04 (9j), 812.34 (2) (c),
7895.08, 895.80 (3) (c) and 895.80 (6) of the statutes;
relating to: parental
8liability for acts of their minor child, recovery of damages for certain criminal
9actions, garnishment, attorney fees, exemption from execution of accounts, civil
10actions by collection agencies, earnings garnishment, retail theft and recovery
11in actions involving worthless checks.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB620-ASA1,2,7
1218.04
(9j) Civil action by licensee. A licensee may, after receiving
2authorization from a creditor, consolidate the creditor's account or accounts relating
3to a particular debtor with those of any other creditor or creditors relating to that
4debtor and may bring an action on behalf of the creditor or creditors. A licensee that
5brings an action under this subsection is the real party in interest under s. 803.01
6(2) for purposes of maintaining an action. A licensee that brings an action under this
7subsection shall comply with the caption requirements of s. 895.08.
AB620-ASA1,2,109
812.34
(1) (a) Was ordered by a court under s. 128.21 or by
a court of bankruptcy 10any court of the United States under
Title 11
, USC
1301 to 1330.
AB620-ASA1, s. 3
11Section
3. 812.34 (2) (a) of the statutes is amended to read:
AB620-ASA1,2,1412
812.34
(2) (a) Unless the court grants relief under s. 812.38 (2) or par. (b)
or (c) 13applies, 80% of the debtor's disposable earnings are exempt from garnishment under
14this subchapter.
AB620-ASA1, s. 4
15Section
4. 812.34 (2) (b) 1. of the statutes is amended to read:
AB620-ASA1,2,1716
812.34
(2) (b) 1. The debtor's household income is below the poverty line
, or the
17garnishment would cause that result; or
AB620-ASA1, s. 5
18Section
5. 812.34 (2) (c) of the statutes is created to read:
AB620-ASA1,2,2219
812.34
(2) (c) If the garnishment of 20% of the debtor's disposable income under
20this subchapter would result in the debtor's household income being below the
21poverty line, the amount of the garnishment is limited to the debtor's household
22income in excess of the poverty line before the garnishment is in effect.
AB620-ASA1,3,1024
812.37
(1) Except as provided in s. 812.34 (1), the debtor may claim an
25exemption under s. 812.34 (2) (b)
or a limit to the garnishment under s. 812.34 (2)
1(c), or may assert any defense to the earnings garnishment, by completing the answer
2form and delivering or mailing it to the garnishee
, along with the schedules and
3worksheets provided under s. 812.35 (4) (b) and any other documents supporting his
4or her answer, such as a wage statement, a court order regarding the payment of
5support or a document showing the receipt of aid to families with dependent children,
6relief funded by a relief block grant under ch. 49, relief provided by counties under
7s. 59.07 (154), medical assistance, supplemental security income, food stamps or
8veterans benefits based on need under 38 USC 501 to 562 or s. 45.351 (1). The debtor
9or debtor's spouse may file an answer or an amended answer
and documentation at
10any time before or during the effective period of the earnings garnishment.
AB620-ASA1,3,1712
812.37
(2) Whenever the garnishee receives a debtor's answer or amended
13answer
and the schedules, worksheets and other documents, the garnishee shall
14mail a copy of the answer
, schedules, worksheets and any other documents the debtor
15included with the answer to the creditor by the end of the 3rd business day after
16receiving the debtor's answer
and documents, writing on that copy the date of receipt
17of the answer
and documents by the garnishee.
AB620-ASA1, s. 8
18Section
8. 812.38 (1) (b) of the statutes is amended to read:
AB620-ASA1,3,2419
812.38
(1) (b) The debtor may file with the court a written petition for relief
20from the earnings garnishment if the exemption percentage under s. 812.34
(2) (a) 21is insufficient for the debtor to acquire the necessities of life for the debtor and his
22or her dependents.
The petition shall state with reasonable specificity the grounds
23for the relief requested and shall include any additional information necessary to
24support the petition.
AB620-ASA1,4,16
1812.38
(2) A motion or petition under sub. (1) may be made at any time during
2the pendency of the earnings garnishment. Within 5 business days after a motion
3or petition is filed under sub. (1), the court shall schedule the matter for a hearing
4to be held as promptly as practicable. The court shall notify the parties of the time
5and place of the hearing. Upon conclusion of the hearing, the court shall make
6findings of fact and conclusions of law.
If the debtor has failed to produce the
7schedules and worksheets or other documents necessary to support a claim for
8exemptions or other defenses, the court shall award the creditor his or her costs
9related to the motion in an amount of not less than $50. An award under this
10subsection may not substitute for or replace an award made under sub. (3). The court
11shall make such order as required by these findings and conclusions. If the order
12permits the garnishment to proceed, the date on which the order is served upon the
13garnishee shall substitute for the original date of service of the garnishment upon
14the garnishee under s. 812.35 (3) for the purpose of determining any 13-week period
15under s. 812.35 (5) or (6). A court order shall bind the garnishee from the time the
16order is served upon him or her.
AB620-ASA1, s. 10
17Section
10. 812.44 (3) (form) 3. of the statutes is amended to read:
AB620-ASA1,4,2118
812.44
(3) (form) 3. Whenever you receive a debtor's answer form from the
19debtor, mail a copy of the answer form
and any documents the debtor included with
20the answer form to the creditor by the end of the 3rd business day after receipt of that
21form. Include the date you received the answer form on the copy sent to the creditor.
AB620-ASA1, s. 11
22Section
11. 812.44 (4) (form) 1. of the statutes is amended to read:
AB620-ASA1,4,2523
812.44
(4) (form)
1. Your household income is below the federal poverty level
, 24or this garnishment would cause that to happen. See the enclosed schedules and
25worksheet to determine if you qualify for this exemption.
AB620-ASA1, s. 12
1Section
12. 812.44 (4) (form) 3. of the statutes is amended to read:
AB620-ASA1,5,32
812.44
(4) (form)
3. At least 25% of your disposable earnings are assigned by
3court order for support.
AB620-ASA1,5,6
4If the garnishment of 20% of your disposable income would result in the income
5of your household being below the poverty line, the garnishment is limited to the
6amount of your household's income in excess of the poverty line.
AB620-ASA1,5,137
If you qualify for a complete exemption
or for a limit on the amount of the
8garnishment to the amount that your household's income exceeds the poverty line,
9you must give or mail a copy of the enclosed debtor's answer form to the garnishee
,
10along with the schedules and worksheets and any other documents supporting your
11answer, such as a wage statement, a court order regarding the payment of support
12or a document showing the receipt of any of the benefits listed under paragraph 2
13above in order to receive that increased exemption.
AB620-ASA1,5,1514
If your circumstances change while the garnishment is in effect, you may file
15a new answer at any time.
AB620-ASA1,5,1916
If you do not qualify for a complete exemption, but you will not be able to acquire
17the necessities of life for yourself and your dependents if your earnings are reduced
18by this earnings garnishment, you may ask the court in which this earnings
19garnishment was filed to increase your exemption or grant you other relief.
AB620-ASA1,5,2120
IF YOU NEED ASSISTANCE
21
CONSULT AN ATTORNEY
AB620-ASA1,6,222
If you have earnings that are being garnisheed that are exempt or subject to a
23defense, the sooner you file your answer or seek relief from the court, the sooner such
24relief can be provided. This earnings garnishment affects your earnings in pay
25periods beginning within 13 weeks after it was served on the garnishee. You may
1agree in writing with the creditor to extend it for additional 13-week periods until
2the debt is paid.
AB620-ASA1,6,64
If you wrongly claim an exemption or defense in bad faith, or if the creditor
5wrongly objects to your claim in bad faith, the court may order the person who acted
6in bad faith to pay court costs, actual damages and reasonable attorney fees.
AB620-ASA1,6,158
814.04
(1) (a) When the amount recovered or the value of the property involved
9is
$1,000 or over greater than the maximum amount specified in s. 799.01 (1) (d),
10attorney fees shall be
$100 $500; when it is
equal to or less than
$1,000 and is $500
11or over, $50 the maximum amount specified in s. 799.01 (1) (d), but is $1,000 or more,
12attorney fees shall be $300; when it is less than
$500 and is $200 or over, $25; and
13when it is less than $200, $15 $1,000, attorney fees shall be $100. In all other cases
14in which there is no amount recovered or that do not involve property, attorney fees
15shall be $300.
AB620-ASA1,7,518
814.04
(2) Disbursements. All the necessary disbursements and fees allowed
19by law; the compensation of referees; a reasonable disbursement for the service of
20process or other papers in an action when the same are served by a person authorized
21by law other than an officer, but the item may not exceed the authorized sheriff's fee
22for the same service; amounts actually paid out for certified
and other copies of
23papers and records in any public office; postage,
telegraphing photocopying,
24telephoning
, electronic communications, facsimile transmissions and express
or
25overnight delivery; depositions including copies; plats and photographs, not
1exceeding
$50 $100 for each item; an expert witness fee not exceeding
$100 $300 for
2each expert who testifies, exclusive of the standard witness fee and mileage which
3shall also be taxed for each expert; and in actions relating to or affecting the title to
4lands, the cost of procuring an abstract of title to the lands. Guardian ad litem fees
5shall not be taxed as a cost or disbursement.
AB620-ASA1,7,9
7814.07 Costs on motion. Costs may be allowed on a motion, in the discretion
8of the court or judge, not exceeding
$50 $300, and may be absolute or directed to abide
9the event of the action.
AB620-ASA1,7,1311
815.18
(3) (k)
Depository accounts. Depository accounts in the aggregate value
12of $1,000
, but only to the extent that the account is for the debtor's personal use and
13is not used as a business account.
AB620-ASA1,7,2415
895.035
(2) The parent or parents with custody of a minor child, in any
16circumstances where he, she or they may not be liable under the common law, are
17liable for damages to property, for the cost of repairing or replacing property or
18removing the marking, drawing, writing or etching from property regarding a
19violation under s. 943.017, for the value of unrecovered stolen property or for
20personal injury attributable to a wilful, malicious or wanton act of the child. The
21parent or parents with custody of their minor child are jointly and severally liable
22with the child for the damages imposed under s.
895.80, 943.212, 943.24, 943.245 or 23943.51 for their child's violation of s.
943.01, 943.011, 943.012, 943.017, 943.20,
24943.201, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50
or 943.61.
AB620-ASA1,8,4
1895.08 Suit by collection agency. In addition to the requirements of ss.
2801.09 (1), 801.095, 802.04 (1) and 815.05 (intro.), in an action brought by a collection
3agency under s. 218.04 (9j), the collection agency shall include in the caption, under
4its name, the names of the creditors on whose behalf the action is brought.
AB620-ASA1,8,136
895.80
(1) Any person who suffers damage or loss by reason of intentional
7conduct that occurs on or after November 1, 1995, and that is prohibited under s.
8943.01, 943.20, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50 or 943.61, or
9by reason of intentional conduct that occurs on or after April 28, 1998, and that is
10prohibited under s. 943.201,
or by reason of intentional conduct that occurs on or
11after the effective date of this subsection .... [revisor inserts date], and that is
12prohibited under s. 943.011, 943.012 or 943.017, has a cause of action against the
13person who caused the damage or loss.
AB620-ASA1,8,2115
895.80
(2) The burden of proof in a civil action under sub. (1) is with the person
16who suffers damage or loss to prove
his or her case
a violation of s. 943.01, 943.011,
17943.012, 943.017, 943.20, 943.201, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41,
18943.50 or 943.61 by a preponderance of the credible evidence.
A conviction under s.
19943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.21, 943.24, 943.26, 943.34,
20943.395, 943.41, 943.50 or 943.61 is not required to bring an action, obtain a
21judgment or collect on that judgment under this section.
AB620-ASA1, s. 22
22Section
22. 895.80 (3) (a) of the statutes is repealed and recreated to read:
AB620-ASA1,9,223
895.80
(3) (a) Actual damages, including the retail or replacement value of
24damaged, used or lost property, whichever is greater, for a violation of s. 943.01,
1943.011, 943.012, 943.017, 943.20, 943.201, 943.21, 943.24, 943.26, 943.34, 943.395,
2943.41, 943.50 or 943.61.