AB620: Bill Text

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1999 - 2000 LEGISLATURE

1999 Assembly BILL 620

December 13, 1999 - Introduced by Representatives Montgomery, Huebsch, Albers, Gard, Goetsch, Gunderson, Hasenohrl, Ladwig, Olsen, Owens, Rhoades, Seratti, Spillner, Suder, Sykora, Vrakas, Walker and Ziegelbauer, cosponsored by Senators Shibilski, Huelsman, Breske, Darling, Erpenbach, Fitzgerald, Lazich, Plache, Rude and Welch, by request of Midwest Equipment Dealers Association, Midwest Hardware Association, National Federation of Independent Business, Tavern League of Wisconsin, Wisconsin Alliance of Hearing Professionals, Wisconsin Association of Convenience Stores, Wisconsin Automobile and Truck Dealers Association, Wisconsin Automotive Parts Association, Wisconsin Automotive Trade Association, Wisconsin Civil Recovery Council, Wisconsin Collectors Association, Wisconsin Grocers Association, Wisconsin Fitness and Health Alliance, Wisconsin Independent Businesses, Inc., Wisconsin Jewelers Association, Wisconsin Merchants Federation, Wisconsin Motorcycle Dealers Association, Wisconsin Restaurant Association and Wisconsin Retail Lumber Association. Referred to Committee on Judiciary and Personal Privacy.

AB620,2,2 An Act to repeal 814.04 (1) (b); to amend 799.01 (1) (c), 799.01 (1) (d) (intro.), 799.01 (2), 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 (2), 895.80 (3) (b), 943.24 (3) (b), 943.24 (3) (c), 943.245 (3), 943.245 (4), 943.50 (3), 943.51 (3) and 943.51 (3m); to repeal and recreate 895.80 (3) (a) and 895.80 (4); and to create 757.69 (1) (p), 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, increasing the jurisdictional amount in small claims court, powers of court commissioners, garnishment, attorney fees, exemption from execution of accounts, assignment of debt, earnings garnishment retail theft and recovery in actions involving worthless checks.

Analysis by the Legislative Reference Bureau

This bill increases the jurisdictional limit in small claims actions from $5,000 to $10,000.

Current law provides for limited payment of attorney fees by the unsuccessful litigant to the successful litigant in all civil actions. In a civil action concerning money damages or property, the successful litigant is entitled to attorney fees based on the following schedule: - See PDF for table

This bill changes the amount of attorney fees allowed in these cases as follows: - See PDF for table

The bill also increases the amount of attorney fees recoverable in civil cases that do not involve money damages or property from a maximum of $100 to a maximum of $500.

Under current law, in civil cases certain disbursements, such as those made for the costs of certified copies of public papers or records, postage and depositions, are recoverable by the successful litigant, but are limited to $50 for each item. This bill expands the list of disbursements that are recoverable to include such items as overnight delivery and facsimile transmissions and increases the limit to $100 for each item. The bill also increases the amount that a successful litigant may recover for the cost of each expert witness testifying on behalf of the successful litigant from $100 to $300 and for filing a motion from $50 to $300.

Under current law, the earnings exemption in earnings garnishment actions provides that a debtor's earnings are totally exempt if the debtor's income is below the poverty line or if the garnishment would cause that result. Under this bill, a debtor's earnings are totally exempt if the debtor's income is below the poverty line, but if the garnishment would result in the debtor's income being below the poverty line, the amount garnished is limited to the debtor's income in excess of the poverty line. The bill requires debtors who claim earnings exemptions to submit with their answer to the garnishment the schedules and worksheets that were given to them with the garnishment, plus any supporting documents. The bill restricts the exemption from execution for depository accounts to those depository accounts that are for the debtor's personal use.

The bill allows any person to assign a debt owed to that person for consideration. The bill requires the person assigned a debt to notify the debtor within 30 days of that assignment. Under the bill, if the notice is not sent within 30 days, the assignment is ineffective until the notice is sent. The person assigned the debt may sue to recover the debt. The court may allow the payment of reasonable attorney fees in those suits.

Under current law, a person who suffers damage as a result of certain crimes against property may sue the person that caused the damage. Currently, the person may recover treble damages plus the costs of the investigation and litigation. Under the bill, the person may recover his or her actual damages, including the value of the damaged property, the court costs, the costs of the investigation and litigation, including attorney fees and the value of the time spent by an employe, and exemplary damages of not more than three times the amount of actual damages. Any recovery is reduced by any amount received as restitution.

Current law provides that the total amount a person may receive for exemplary damages and attorney fees in an action to recover damages resulting from the issuance of a worthless check or retail theft is limited to $500. This bill provides that the $500 limit applies for each violation.

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

AB620, s. 1 Section 1. 757.69 (1) (p) of the statutes is created to read:

AB620,3,2 757.69 (1) (p) Hold hearings, make findings and issue orders under s. 812.38.

AB620, s. 2 Section 2. 799.01 (1) (c) of the statutes is amended to read:

AB620,3,5 799.01 (1) (c) Replevins. Actions for replevin under ss. 810.01 to 810.13 where the value of the property claimed does not exceed $5,000 $10,000.

AB620, s. 3 Section 3. 799.01 (1) (d) (intro.) of the statutes is amended to read:

AB620,3,8 799.01 (1) (d) Other civil actions. (intro.) Other civil actions where the amount claimed is $5,000 $10,000 or less, if the actions or proceedings are:

AB620, s. 4 Section 4. 799.01 (2) of the statutes is amended to read:

AB620,4,4 799.01 (2) Permissive use of small claims procedure. A taxing authority may use the procedure in this chapter in an action to recover a tax from a person liable for that tax where the amount claimed, including interest and penalties, is $5,000 $10,000 or less. This chapter is not the exclusive procedure for those actions.

AB620, s. 5 Section 5. 812.34 (1) (a) of the statutes is amended to read:

AB620,4,7 812.34 (1) (a) Was ordered by a court under s. 128.21 or by a court of bankruptcy under Title 11, USC 1301 to 1330.

AB620, s. 6 Section 6. 812.34 (2) (a) of the statutes is amended to read:

AB620,4,11 812.34 (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, s. 7 Section 7. 812.34 (2) (b) 1. of the statutes is amended to read:

AB620,4,14 812.34 (2) (b) 1. The debtor's household income is below the poverty line, or the garnishment would cause that result; or

AB620, s. 8 Section 8. 812.34 (2) (c) of the statutes is created to read:

AB620,4,19 812.34 (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, s. 9 Section 9. 812.37 (1) of the statutes is amended to read:

AB620,5,5 812.37 (1) Except as provided in s. 812.34 (1), the debtor may claim an exemption under s. 812.34 (2) (b), 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 any of the benefits listed under s. 812.44 (4) (form) 2. 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, s. 10 Section 10. 812.37 (2) of the statutes is amended to read:

AB620,5,12 812.37 (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, s. 11 Section 11. 812.38 (1) (b) of the statutes is amended to read:

AB620,5,19 812.38 (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, s. 12 Section 12. 812.38 (2) of the statutes is amended to read:

AB620,6,11 812.38 (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, s. 13 Section 13. 812.44 (3) (form) 3. of the statutes is amended to read:

AB620,6,16 812.44 (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 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, s. 14 Section 14. 812.44 (4) (form) 1. of the statutes is amended to read:

AB620,6,20 812.44 (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, s. 15 Section 15. 812.44 (4) (form) 3. of the statutes is amended to read:

AB620,6,23 812.44 (4) (form) 3. At least 25% of your disposable earnings are assigned by court order for support.

AB620,7,3 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.

AB620,7,10 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.

AB620,7,12 If your circumstances change while the garnishment is in effect, you may file a new answer at any time.

AB620,7,16 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.

AB620,7,18 IF YOU NEED ASSISTANCE CONSULT AN ATTORNEY

AB620,7,24 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.

AB620,7,25 PENALTIES

AB620,8,3 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, s. 16 Section 16. 814.04 (1) (a) of the statutes is amended to read:

AB620,8,13 814.04 (1) (a) When the amount recovered or the value of the property involved is $1,000 or over equal to or greater than the maximum amount specified in s. 799.01 (1) (d), attorney fees shall be $100 $750; 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 $5,000 or more, attorney fees shall be $500; when it is less than $500 and is $200 or over, $25; and when it is less than $200, $15 $5,000 and is $1,000 or more, attorney fees shall be $300; and when it is less than $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 $500.

AB620, s. 17 Section 17. 814.04 (1) (b) of the statutes is repealed.

AB620, s. 18 Section 18. 814.04 (2) of the statutes is amended to read:

AB620,9,3 814.04 (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, s. 19 Section 19. 814.07 of the statutes is amended to read:

AB620,9,7 814.07 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, s. 20 Section 20. 815.18 (3) (k) of the statutes is amended to read:

AB620,9,11 815.18 (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, s. 21 Section 21. 895.035 (2) of the statutes is amended to read:

AB620,9,22 895.035 (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, s. 22 Section 22. 895.08 of the statutes is created to read:

AB620,9,25 895.08 Assignment of debt and right to sue. (1) Any person may assign a debt owed to that person to any other person, including a debt collection agency licensed by the department of financial institutions. That assignment shall be in writing for consideration and shall state the amount owed to the original creditor, the name of the debtor and the name of the person to whom the debt is assigned.

AB620,10,10 (2) An assignee taking assignment of a debt under this section shall take the assignment of the debt in his or her own name as real parties in interest for the purpose of billing, collection and bringing suit in his or her own name. No suit regarding an assigned debt may be instituted on behalf of a collection agency in any court unless the collection agency appears by a duly authorized and licensed attorney at law. When a suit is commenced under this subsection, the court may authorize payment of reasonable attorney fees and costs to the prevailing party.

AB620,10,15 (3) The person assigned a debt under this section shall send notice to the debtor of the assignment by mail at the debtor's last known address within 30 calendar days after making the assignment. If the person assigned the debt fails to send a notice to the debtor within the time period required by this subsection, the assignment may not be effective until the notice is sent to the debtor.

AB620, s. 23 Section 23. 895.80 (2) of the statutes is amended to read:

AB620,10,23 895.80 (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, s. 24 Section 24. 895.80 (3) (a) of the statutes is repealed and recreated to read:

AB620,11,4 895.80 (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, s. 25 Section 25. 895.80 (3) (b) of the statutes is amended to read:

AB620,11,8 895.80 (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, court costs and reasonable attorney fees.

AB620, s. 26 Section 26. 895.80 (3) (c) of the statutes is created to read:

AB620,11,12 895.80 (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.

AB620, s. 27 Section 27. 895.80 (4) of the statutes is repealed and recreated to read:

AB620,11,15 895.80 (4) Any recovery under this section shall be reduced by the amount recovered as restitution under ss. 800.093 and 973.20 and ch. 938.