812.40 Note
NOTE: 1993 Wis. Act 80, which created ss. 812.30 to 812.44, contains extensive judicial council notes.
812.41
812.41
Garnishee liability. 812.41(1)(1) If the garnishee fails to pay over funds to which the creditor is entitled under this subchapter within the time required under
s. 812.39, the creditor may, upon notice to all of the parties, move the court for judgment against the garnishee in the amount of the unsatisfied judgment plus interest and costs. The garnishee may assert the affirmative defense that the amount of the debtor's nonexempt disposable earnings that the creditor should have been paid is less than the amount of the unsatisfied judgment balance. If the garnishee proves that defense, the garnishee's liability is limited to the amount the creditor should have been paid or $100, whichever is greater.
812.41(2)
(2) The debtor may move the court for judgment against the garnishee for the debtor's actual damages if the garnishee deducts more from the debtor's earnings than is authorized by this subchapter.
812.41(3)
(3) In any proceeding under
sub. (2), the garnishee may assert the affirmative defense that the wrongful conduct of the garnishee was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid that error. If the garnishee proves that defense, liability of the garnishee is limited to the return to the debtor of any exempt disposable earnings paid to the creditor.
812.41 History
History: 1993 a. 80.
812.41 Note
NOTE: 1993 Wis. Act 80, which created ss. 812.30 to 812.44, contains extensive judicial council notes.
812.41 Annotation
When a garnishee/employer failed to withhold any wages in an earnings garnishment, the plaintiffs action against the employer for its failure to respond to the garnishment complaint was an action against the employer only. Consequently, the bankruptcy law automatic stay provisions do not apply. Kenosha Hospital & Medical Center v. Garcia, 2004 WI 105,
274 Wis. 2d 338,
683 N.W.2d 851,
02-1727.
812.41 Annotation
The notice of motion for judgment against the garnishee in an earnings garnishment procedure should be served like a summons in the present case rather than as a paper in a pending action. Kenosha Hospital v. Garcia, 2004 WI 105,
274 Wis. 2d 338,
683 N.W.2d 851,
02-1727.
812.42
812.42
Garnishment of earnings of public officers and employees. 812.42(1)(a)(a) This section does not apply or extend to money due to an officer or employee for reimbursement for expenditures made by him or her in the discharge of his or her duties.
812.42(2)(a)(a) Except as provided in this section, the procedures in earnings garnishment actions brought against the state or a political subdivision of the state shall be as provided in this subchapter. The creditor shall serve the earnings garnishment forms under
s. 812.35 upon the department of administration if the state is the garnishee; upon the city treasurer if a 1st class city is the garnishee; and upon the secretary or clerk if any other political subdivision is the garnishee.
812.42(2)(b)
(b) Notwithstanding
ss. 812.35 and
812.40, a garnishment of earnings payable to a debtor by the state or a political subdivision of the state shall remain valid and effective until the judgment is satisfied, unless sooner terminated by order of the court.
812.42(2)(c)
(c) In addition to the $15 garnishee fee, the garnishee shall receive a $3 fee for each payment delivered to the creditor under
s. 812.39 after the first payment. That additional fee shall be deducted from the moneys delivered to the creditor. Those fees become part of the funds of the state if the department of administration is the garnishee, or funds of the appropriate governmental subdivision if any other governmental entity is the garnishee. The judgment creditor shall pay the initial garnishee fee to the secretary of administration or other governmental subdivision, as applicable.
812.42 History
History: 1993 a. 80;
2003 a. 33.
812.42 Note
NOTE: 1993 Wis. Act 80, which created ss. 812.30 to 812.44, contains extensive judicial council notes.
812.43
812.43
Retaliation by garnishee for earnings garnishment forbidden. Unless permitted under any applicable collective bargaining agreement, a garnishee shall not impose any fee or take any adverse action against a debtor by reason of the garnishment of the debtor's earnings. If a garnishee violates this section, the debtor may bring an action for reinstatement, back wages and benefits, restoration of seniority, other relief allowed by law and reasonable attorney fees incurred in bringing this action.
812.43 History
History: 1993 a. 80.
812.43 Note
NOTE: 1993 Wis. Act 80, which created ss. 812.30 to 812.44, contains extensive judicial council notes.
812.44(1)(a)(a) The judicial conference shall review the forms in this subchapter and may periodically revise those forms. Those revisions may not alter the rights of the parties under this subchapter. The judicial conference shall notify the clerks of court and any interested person of any forms revised under this subsection.
812.44(1)(b)
(b) Except as provided under
par. (bg), no party may use a form substantially different from those in this subchapter as revised under this subsection. No party may alter those forms in a manner that may mislead any other party. If the court finds that a party has used a misleading form, the court shall award the aggrieved party actual damages, costs and reasonable attorney fees resulting from the additional proceeding.
812.44(1)(bg)
(bg) If the judgment debt meets one of the conditions under
s. 812.34 (1), the creditor shall amend the forms used under this subchapter to inform the garnishee and debtor that the exemptions provided under
s. 812.34 (1) do not apply.
812.44(1)(c)
(c) No garnishee is required to act as requested by any form in this subchapter that does not identify the parties as required by
s. 812.31 (4) or that is illegibly completed or otherwise unintelligible. No garnishee is liable to any person for refusing to so act. The garnishee shall mail that form back to the sending party, if known, within 3 days after receipt. The garnishee shall include with the returned form a statement specifying the defect in the form and that the garnishee is not acting as requested by the form under the authority of this paragraph.
812.44(2)
(2) The notice filed by the creditor to initiate an earnings garnishment under
s. 812.35 (1) shall be in substantially the following form:
STATE OF WISCONSIN
CIRCUIT COURT:.... County
A.B., Creditor File or Reference Number......
vs. EARNINGS
C.D., Debtor GARNISHMENT
and NOTICE
E.F., Garnishee
To the Clerk of Circuit Court:
Please take and file notice that the creditor has today commenced an earnings garnishment action under subchapter II of chapter 812 of the Wisconsin Statutes against the debtor and the garnishee to collect an unsatisfied civil judgment. The judgment was entered on the .... day of ...., ...., (year) by .... (County Circuit or Federal District) Court. The case number of the action in which the judgment is entered is .... [and a transcript of the judgment was entered in this county in file number ....]. The creditor's total claim for the unsatisfied portion of this judgment plus statutory interest and costs is $....
The names and addresses last known to the creditor of the parties to this proceeding are as follows:
Debtor
Name: ....
Address: ....
Garnishee
Name: ....
Address: ....
Creditor
Name: ....
Address: ....
Creditor's Attorney
Name: ....
Address: ....
Signature of Creditor or Creditor's Attorney: ....
Date: ....
812.44(3)
(3) The earnings garnishment form issued by the clerk under
s. 812.35 (2) shall be in substantially the following form:
STATE OF WISCONSIN
CIRCUIT COURT:.... County
A.B., Creditor
vs. File or Reference Number....
C.D., Debtor EARNINGS
and GARNISHMENT
E.F., Garnishee
THE STATE OF WISCONSIN, To the garnishee:
The creditor has been awarded a court judgment that has not been paid. As a result, the creditor claims that a total of $.... is owed by the debtor, as follows:
A. Unpaid balance on judgment $....
B. Unpaid postjudgment interest $....
C. Costs of this earnings garnishment
(estimated) $....
TOTAL $....
The creditor believes that you will owe the debtor for earnings within the next 13 weeks. If the $15 fee is tendered with these papers, you are directed by the court to do the following:
DETERMINE WHETHER YOU WILL
OWE THE DEBTOR EARNINGS
1. Determine if you are likely to owe the debtor for earnings in pay periods beginning within the next 13 weeks.
2. If you are not likely to owe the debtor for earnings in pay periods beginning within the next 13 weeks, send a statement stating that fact to the creditor by the end of the 7th business day after receiving the earnings garnishment forms.
IF THE DEBTOR SENDS YOU AN ANSWER
3. Whenever you receive a debtor's answer form from the debtor, mail a copy of 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.
4. If the debtor's answer form claims a complete exemption or defense, do not withhold or pay to the creditor any part of the debtor's earnings under this garnishment unless you receive an order of the court directing you to do so.
MULTIPLE EARNINGS GARNISHMENTS
5. If the debtor's earnings are already being garnisheed when you receive this earnings garnishment, place this earnings garnishment into effect the pay period after the last of any prior earnings garnishments terminates. Notify the debtor of the amount of the garnishment and notify the creditor of the amount owed on the pending garnishments by the end of the 7th business day after you receive these forms. If there are no prior pending earnings garnishments against the debtor's earnings, place this earnings garnishment into effect the pay period after you receive it.
EARNINGS GARNISHMENTS LAST 13 WEEKS,
EXCEPT FOR PUBLIC EMPLOYEES
6. The garnishment of the earnings of employees of the state of Wisconsin and its political subdivisions remain in effect until the judgment is satisfied. The garnishment of earnings of other employees will affect the debtor's earnings for all pay periods beginning within 13 weeks after you receive it, unless the debtor's earnings are already being garnisheed. If this earnings garnishment is delayed under paragraph 5, above, it will affect the debtor's earnings for all pay periods beginning within 13 weeks after the first day of the pay period that you put this earnings garnishment into effect. If the amount claimed by the creditor is fully paid before the end of the 13 weeks, this earnings garnishment will terminate at that point.
PAYING THE CREDITOR
7. Between 5 and 10 business days after each payday of a pay period affected by this earnings garnishment, pay the creditor 20% of the debtor's disposable earnings for that pay period. Payment is complete upon mailing.
EFFECT OF COURT-ORDERED
ASSIGNMENTS FOR SUPPORT
8. If the debtor has assigned his or her earnings for support by court order, those support payments take priority over this earnings garnishment. If 25% or more of the debtor's disposable earnings is assigned for support by court order, do not pay any part of the debtor's earnings to the creditor. Instead, send the creditor a statement of that fact by the end of the 7th business day after you receive these forms. If less than 25% of the debtor's earnings is assigned for support by court order, the amount the creditor must be paid is reduced so that the total of earnings assigned and garnisheed does not exceed 25% of the debtor's disposable earnings.
EXTENSIONS
