AB970: Bill Text

Note: Replaces word form of numbers with digits and other language for greater readability and conformity with current style.

AB970, s. 113 Section 113. 128.04 of the statutes is renumbered 128.001 (1) (intro.) and amended to read:

AB970,64,5 128.001 (1) (title) Definition of insolvency; time Insolvent. (intro.) A person shall be deemed is considered "insolvent within the provisions of this chapter" whenever any of the following conditions is met:

AB970,64,10 (a) The aggregate of the person's property, exclusive of any property which that the person may have conveyed, transferred, concealed or removed, or permitted to be concealed or removed, with intent to defraud, hinder or delay the person's creditors, shall not, at a fair valuation be sufficient in amount to pay the person's debts, or if an.

AB970,64,12 (b) An execution be against the person or the person's property is returned unsatisfied or if the.

AB970,64,13 (c) The person shall make makes an assignment for the benefit of creditors.

Note: Repositions and subdivides provision and replaces language for greater readability and conformity with current style.

AB970, s. 114 Section 114. 128.05 (1) of the statutes is amended to read:

AB970,64,20 128.05 (1) The assignee shall indorse endorse in writing the assignee's acceptance of the assignment, and shall file such the assignment with the clerk of the circuit court in the county where the debtor has his or her residence or principal place of business. The court shall, upon the filing of such the assignment, order such the assignee to administer the debtor's estate pursuant to this chapter, and the assignee shall be vested with the powers of a receiver.

Note: Replaces disfavored term.

AB970, s. 115 Section 115. 128.05 (2) of the statutes is amended to read:

AB970,65,4 128.05 (2) A certified copy thereof of an assignment filed under sub. (1) may be recorded in the office of the register of deeds of any county wherein lands are conveyed by such the assignment in the same manner and with the same effect as other conveyances.

Note: Inserts specific cross-reference and replaces disfavored term.

AB970, s. 116 Section 116. 128.07 (1) (intro.) and (b) of the statutes are created to read:

AB970,65,6 128.07 (1) Definitions. (intro.) In this section:

AB970,65,8 (b) "Recipient" means a person who receives a preference, or benefits from a preference, or that person's agent.

Note: Creates a definition subsection for the proper location of definitions in s. 128.07. The definition of "recipient" is created from language in sub.(2) in order to simplify and improve the clarity and readability of sub. (2).

AB970, s. 117 Section 117. 128.07 (1) of the statutes is renumbered 128.07 (1) (a) and amended to read:

AB970,65,17 128.07 (1) (a) A person shall be deemed considered to have given a preference if, being insolvent, the person has made a transfer of any of his or her property, or has procured or suffered permitted a judgment to be entered against him or her in favor of any other person, and the effect of the transfer or the enforcement of the judgment will be to enable any one of his or her creditors creditor to obtain a greater percentage of his or her debt than any other of such creditors creditor of the same class.

Note: Moves definition to definitions subsection. Replaces disfavored terms.

AB970, s. 118 Section 118. 128.07 (2) of the statutes is amended to read:

AB970,66,5 128.07 (2) If the debtor shall have has given a preference within four 4 months before the filing of a petition, or an assignment, or after the filing of the petition and before the appointment of a receiver, or after the filing of an assignment and before the qualification of the assignee, and the person receiving it, or to be benefited thereby, or his or her agent acting therein, shall have had recipient has reasonable cause to believe that the enforcement of such the judgment or transfer would effect a preference, it the judgment shall be voidable by the receiver or assignee, and the receiver or assignee may recover the property or its value from such person the recipient.

Note: Deletes language moved to sub. (1) (a) and replaces word form of number with digits and other language for greater readability and conformity with current style. See also the previous section of this bill.

AB970, s. 119 Section 119. 128.07 (3) of the statutes is renumbered 128.07 (1) (c) 1. (intro.) and amended to read:

AB970,66,11 128.07 (1) (c) 1. (intro.) "Transfer" means the any of the following, whether made absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, assignment, payment, pledge, mortgage, lien, encumbrance, gift, security or otherwise:

AB970,66,13 a. The sale or other disposal of or of parting with property or with, an interest therein in property or with the possession thereof or the of property.

AB970,66,17 b. The fixing of a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, assignment, payment, pledge, mortgage, lien, encumbrance, gift, security or otherwise in property.

AB970,66,19 2. The retention of a security title to property delivered to a debtor shall be deemed considered a transfer suffered permitted by such the debtor.

Note: Repositions and subdivides provision, repositions text and replaces disfavored language for greater readability and conformity with current style.

AB970, s. 120 Section 120. 128.07 (4) of the statutes is amended to read:

AB970,67,10 128.07 (4) A transfer of property other than real property shall be deemed considered to have been made or suffered permitted at the time when it became so far perfected that no subsequent lien upon such the property obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee. A transfer of real property shall be deemed considered to have been made or suffered permitted when it became so far perfected that no subsequent bona fide purchase from the debtor could create rights in such the property superior to the rights of the transferee. If any transfer of real property is not so perfected against a bona fide purchase, or if any transfer of other property is not so perfected against such liens by legal or equitable proceedings prior to the filing of a petition initiating a proceeding in insolvency, it shall be deemed considered to have been made immediately before the filing of the petition.

Note: Replaces disfavored terms.

AB970, s. 121 Section 121. 128.11 of the statutes is amended to read:

AB970,67,18 128.11 Provisional remedies. In all actions authorized by this chapter, appropriate provisional remedies may be had and final relief administered to the equal distribution of all assets recovered among the creditors of the debtor, and the court may make such orders for the payment of costs and expenses as may be just. An action or proceeding authorized herein by this chapter for the benefit of all creditors may be taken by a creditor although the creditor's demand is not due at the commencement thereof.

Note: Replaces disfavored term.

AB970, s. 122 Section 122. 128.13 of the statutes is amended to read:

AB970,68,3 128.13 (title) Inventory of assets and list of creditors. With the filing of an assignment or within ten 10 days after the appointment of a receiver, the debtor shall file with the clerk of the circuit court a correct inventory of the debtor's assets and a list of the debtor's creditors, stating the place of residence of each and the amount due to each, which. The inventory and list shall be verified by the debtor's oath, but no. No mistake therein in the inventory or list shall affect the rights of any creditor.

Note: Breaks up long sentence and replaces nonspecific references.

AB970, s. 123 Section 123. 128.15 (1) of the statutes is renumbered 128.15 (1) (a) (intro.) and amended to read:

AB970,68,8 128.15 (1) (a) (intro.) At the expiration of the period of time limited for the filing of claims, the receiver or assignee shall file all of the following with the clerk proof of circuit court:

AB970,68,9 1. Proof of publication of the notice and a required under s. 128.14 (1).

AB970,68,12 2. A list of the creditors to whom the notice was made with given that includes the debts thereof respectively owed to the creditors, verified by an affidavit, and also a.

AB970,68,15 3. A list of claims filed stating the names of creditors, residences name and residence of and amounts amount claimed respectively by each creditor who has filed a claim.

AB970,69,2 (b) At any time thereafter after the expiration of the period of time limited for the filing of claims, the receiver or assignee or, upon that person's the receiver's or assignee's refusal or failure to act, any creditor may file written objections to any claim specifying the grounds thereof and for the objection. The party filing the objection shall serve a copy thereof in such manner as the court may order of the objection upon the claimant as ordered by the court. Depositions may thereafter be taken as in civil actions. The court, on the application of either party, shall fix by enter an order fixing a time when the objections shall be heard, which shall be served as therein prescribed upon the adverse party as prescribed in the order. Upon the final hearing the court shall make such order as shall be just and may compel the payment of costs.

Note: Subdivides provision, reorders text and replaces language for greater readability and conformity with current style.

AB970, s. 124 Section 124. 128.16 (1) of the statutes is amended to read:

AB970,69,12 128.16 (1) The court may compel the debtor to discover any property alleged to belong or to have belonged to him or her, the disposition thereof of the property and the consideration and all the circumstances of the disposition. Every officer, agent or stockholder of a corporation, every manager or member of a limited liability company and every person to whom it shall be alleged that any transfer of property has been made, or in whose possession or control the same property is alleged to be, may be compelled to testify in relation thereto to the property and to the transfer or possession of the property; but the witness shall not be liable to criminal prosecution or proceeding for or on account of his or her testimony.

Note: Replaces nonspecific references.

AB970, s. 125 Section 125. 128.18 (3) of the statutes is renumbered 128.18 (3) (b), and 128.18 (3) (b) (intro.), as renumbered, is amended to read:

AB970,69,21 128.18 (3) (b) (intro.) A lien created by, or obtained in or pursuant to any action which that was begun against, a person within four 4 months before the commencement of proceedings for the appointment of a receiver herein, or the filing of an assignment hereunder, under this chapter shall be dissolved by the appointment of a receiver or the qualification of the assignee, and the receiver or assignee shall be subrogated to the rights of the holder of such the lien for the benefit of all creditors, if:

Note: Replaces word form of number with digits, disfavored term and nonspecific references.

AB970, s. 126 Section 126. 128.18 (3) (a) of the statutes is created to read:

AB970,70,2 128.18 (3) (a) In this subsection, "preference" has the meaning given in s. 128.07 (1) (a).

AB970, s. 127 Section 127. 128.18 (5) of the statutes is amended to read:

AB970,70,10 128.18 (5) All conveyances, transfers, assignments or encumbrances of a debtor's property, or any part thereof of a debtor's property, made or given by the debtor within 4 months prior to the filing of a petition or assignment hereunder under this chapter with the intent and purpose on the debtor's part to hinder, delay or defraud any of the debtor's creditors, or any of them, shall be null and void as against the debtor's creditors of such debtor except as to purchasers in good faith and for a present fair consideration.

Note: Replaces disfavored term and nonspecific references.

AB970, s. 128 Section 128. 128.18 (6) of the statutes is amended to read:

AB970,70,23 128.18 (6) All levies, judgments, attachments or other liens obtained through legal proceedings against a person who is insolvent at any time within 4 months prior to the filing of a petition or assignment hereunder shall be deemed null and under this chapter are void in case a receiver is appointed or an assignee qualifies hereunder, and the. The property affected by the levy, judgment, attachment or other lien shall be deemed wholly discharged and released from the same levy, judgment, attachment or lien, and shall pass to the receiver or assignee as a part of the estate of the debtor unless the court shall, on due notice, order that the right under such the levy, judgment, attachment or other lien shall be preserved for the benefit of the estate; and thereupon the same. In that case, the right under the levy, judgment, attachment or lien may pass to and shall be preserved by the receiver or assignee for the benefit of the estate.

Note: Breaks up long sentence, replaces and deletes disfavored terms and nonspecific references.

AB970, s. 129 Section 129. 128.20 (1) of the statutes is renumbered 128.20 (1) (a) (intro.) and amended to read:

AB970,71,7 128.20 (1) (a) (intro.) Every receiver or assignee shall, within 6 months after the time limited for filing claims or within such any further time as that the court shall allow allows, file with the clerk of the circuit court a full and itemized statement, verified by the receiver's or assignee's oath of the, showing all of the following in regard to the receivership or assignment:

AB970,71,8 1. The property received by the receiver or assignee , the.

AB970,71,10 2. The manner of the receiver's or assignee's dealing therewith, with the property received.

AB970,71,11 3. The amount of money realized by the receiver or assignee, the.

AB970,71,13 4. The condition of the property and funds in the receiver's or assignee's possession, the.

AB970,71,14 5. The names and residences of the debtor's creditors , the.

AB970,71,15 6. The dividends paid them, the to the debtor's creditors.

AB970,71,16 7. The receiver's or assignee's receipts and disbursements with the,

AB970,71,18 8. The receiver's or assignee's claim for compensation and administration expenses.

AB970,71,23 (b) If any receiver or assignee shall neglect neglects to apply promptly for a settlement of the receiver's or assignee's his or her account, the court may, upon application of any creditor, compel the making and filing of such the account or settlement thereof of the account and in such that case the receiver or assignee may be denied compensation.

Note: Subdivides provision and replaces and deletes disfavored terms and nonspecific references.

AB970, s. 130 Section 130. 128.20 (2) of the statutes is amended to read:

AB970,72,13 128.20 (2) Upon filing the report described in sub. (1) (a), the receiver or assignee may apply to the court upon not less than 10 days' notice thereof by mail to the respective creditors named in the report, for a final settlement of the account. The court shall fix a time and place for the hearing of objections or taking of evidence and by order settle and adjust the accounts and the compensation and expenses of the receiver or assignee, regardless of whether objection is made. The order shall be conclusive upon all parties including the sureties of the receiver or assignee, but the. The receiver or assignee or any creditor may appeal from the order in the manner prescribed for appeals in civil actions except that the receiver or assignee may file a notice and undertaking with the clerk without other service thereof of the notice and undertaking. The receiver or assignee shall be discharged of the trust and the bond canceled upon compliance with the final order of the court.

Note: Inserts specific cross-reference, breaks up long sentence and replaces disfavored terms.

AB970, s. 131 Section 131. 128.21 (4) (intro.) of the statutes is amended to read:

AB970,72,20 128.21 (4) (intro.) If the plan recommended under sub. (3) (b) or a modification thereof of the plan is approved under sub. (3r), the debtor shall make the periodic payments therein provided for in the plan to the trustee, and may make additional payments from time to time to the trustee, and the trustee shall distribute the payments proportionally among the creditors listed in the plan, less all of the following:

Note: Inserts specific reference.

AB970, s. 132 Section 132. 128.21 (5) of the statutes is amended to read:

AB970,73,15 128.21 (5) If the debtor defaults in any payment provided for under the plan for a period of more than thirty 30 days the trustee shall, and before the end of any such the 30-day period may, report the matter to the court with the trustee's recommendations, and the. The court shall thereupon either dismiss the proceedings or, if satisfied from the trustee's report that the debtor is in good faith and should be able to make good the default, extend the period of grace for not to exceed thirty 30 days, at. At the end of which the grace period, the trustee shall again report to the court and if all defaults have not then been cured the court shall forthwith immediately dismiss the proceedings. If the debtor makes preferential payments to creditors during the pendency of the proceedings, or appears for any reason to be abusing the privileges of this section, the trustee shall promptly report the matter to the court and the court may dismiss the proceedings. If the claims of all creditors as listed in the plan are satisfied in full, the trustee shall, upon completion of the final distribution, report to the court and the court shall thereupon dismiss the proceedings.

Note: Inserts specific references, breaks up long sentence, replaces word form of number with digits and deletes disfavored terms.

AB970, s. 133 Section 133. 128.21 (7) of the statutes is amended to read:

AB970,73,22 128.21 (7) Neither the determination of the amount of any claim for the purposes of the plan, nor the acceptance of payments thereunder under the plan, shall affect the right of any creditor to litigate the creditor's claim and obtain judgment thereon on the claim, or the right of the debtor to dispute it, and the the claim. The amount of any judgment shall be substituted by the trustee for the amount fixed in the plan.

Note: Inserts specific references and breaks up long sentence.

AB970, s. 134 Section 134. 128.21 (8) of the statutes is amended to read:

AB970,74,5 128.21 (8) Any secured creditor who wishes to realize on his or her security shall give the trustee at least five 5 days' notice in writing of the time, place and manner of the proposed realization, and shall notify the trustee of the amount realized, by which amount the creditor's claim as listed under the plan shall be reduced.

Note: Replaces word form of number with digit.

AB970, s. 135 Section 135. 128.25 (5) (a) of the statutes is amended to read:

AB970,74,10 128.25 (5) (a) By collection. When the asset constituting the security is an obligation for the payment of money, the secured creditor may determine its the security's value by collection or by exhausting his or her remedies thereon against the security and then surrendering the obligation to the liquidator.

Note: Inserts specific references.