How to Collect on a Judgment After the Demise of the Creditor's Lien. Stelljes. Wis. Law. July/Aug. 2016.
Execution, when returnable.
Every execution shall be made returnable, within 60 days after its receipt by the officer, to the clerk of the court from which it issued but if the officer has levied upon property previous to the expiration of the 60 days the officer may retain such execution until the officer has sold the property. The officer shall state in the officer's return how the officer executed the writ.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.06; 1993 a. 486
To what county issued.
When the execution is against the property of the judgment debtor, the execution may be issued to the sheriff of any county where the judgment is entered in the judgment and lien docket. When the execution requires the delivery of real or personal property, the execution shall be issued to the sheriff of the county where the property or some part of the property is situated. Executions may be issued at the same time to different counties.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.07; 1995 a. 224
Sheriff to endorse date of receipt.
Upon receipt of any execution the sheriff or other officer shall endorse thereon the year, month, day and hour of the day when the sheriff or other officer received the same.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.08; 1993 a. 486
Execution against debtor's person.
If the action be one in which the defendant might have been arrested, as provided in ch. 818
, an execution against the person of the judgment debtor may be issued after the return of an execution against the defendant's property unsatisfied in whole or in part; but if the defendant be imprisoned on execution in another action, or upon mesne process in the same action, an execution may issue against the defendant's body without any previous execution against the defendant's property.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.09; Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1993 a. 486
Execution against body only remedy, exception.
When a party shall have been arrested on an execution no other execution upon the same judgment can be issued against the party or the party's property except as provided by s. 898.10
; but if the party shall escape the party may be retaken by a new execution against the party's body or an execution against the party's property may be issued in the same manner as if the party had never been arrested on execution.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.10; 1993 a. 486
Writs of assistance.
When any order or judgment is for the delivery of possession of property real or personal the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.11.
is the general rule for writs of execution or assistance to enforce orders or judgments for delivery of possession of real or personal property. The following are special provisions for writs of execution or assistance:
ss. 32.05 (8), 32.06 (9) (c) Condemnation proceedings.
s. 779.12 Lien foreclosure.
s. 799.44 Eviction actions.
s. 815.63 Sale of land upon execution.
s. 842.19 Partition.
s. 843.17 Actions for possession of real property.
s. 846.17 Real estate foreclosure.
Execution; death of person arrested.
If any person arrested on execution shall die while under arrest a new execution may issue against the deceased's property in the same manner as if the deceased had never been arrested; but such new execution shall not be levied upon any real estate which the deceased shall have sold in good faith nor upon any real estate which shall have been sold under any other judgment against the deceased.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.12; 1993 a. 486
Execution after debtor's death.
After the expiration of one year from the death of a judgment debtor execution may be issued against any property upon which the judgment was a lien at the time of the debtor's death, and may be executed in the same manner and with the same effect as if the debtor were still living; but no such execution shall issue except upon an order, made upon sufficient cause shown. If such judgment be against such deceased debtor and others jointly execution may issue against surviving judgment debtors without delay.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.14; 1993 a. 486
Execution after judgment creditor's death.
If the judgment creditor dies before satisfaction of the judgment, an execution may be issued by the judgment creditor's attorney of record in the name of the decedent or in the name of the judgment creditor's personal representative. Before an execution shall issue in the name of a personal representative, the personal representative shall file with the clerk a copy of the letters testamentary or other letters authorizing the administration of the decedent's estate, which the clerk shall file with the other papers in the action or proceeding. The clerk shall also enter at the foot of the judgment, in the judgment record, the fact of the death of the judgment creditor and the name and date of appointment of the personal representative. The moneys collected on the judgment shall be paid to the judgment creditor's personal representative, but if there is no personal representative, the moneys collected on the judgment shall be paid to the clerk of the court.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.15; 1983 a. 302
; 1993 a. 486
; 2001 a. 102
Execution; who acts on sheriff's death or removal.
If any sheriff shall die or be removed from office before the execution be returned, the deceased sheriff's undersheriff or deputy shall proceed thereon in the same manner as the sheriff might have done.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.17; 1993 a. 486
Property exempt from execution. 815.18(1)(1)
This section shall be construed to secure its full benefit to debtors and to advance the humane purpose of preserving to debtors and their dependents the means of obtaining a livelihood, the enjoyment of property necessary to sustain life and the opportunity to avoid becoming public charges.
“Aggregate value" means the sum total of the debtor's equity in the property claimed exempt.
“Annuity" means a series of payments payable during the life of the annuitant or during a specific period.
“Business" means any lawful activity, including a farm operation, conducted primarily for the purchase, sale, lease or rental of property, for the manufacturing, processing or marketing of property, or for the sale of services.
“Closely held business" means a corporation whose stocks are held by not more than 25 individuals, a partnership of not more than 25 partners who are individuals, or a limited liability company of not more than 25 members who are individuals.
“Debtor" means an individual. “Debtor" does not include an association, a corporation, a partnership, a cooperative, an unincorporated cooperative association, or a political body.
“Dependent" means any individual, including a spouse, who requires and is actually receiving substantial support and maintenance from the debtor.
“Depository account" means a certificate of deposit, demand, negotiated order of withdrawal, savings, share, time or like account maintained with a bank, credit union, insurance company, savings bank, savings and loan association, securities broker or dealer or like organization. “Depository account" does not include a safe deposit box or property deposited in a safe deposit box.
“Equipment" means goods used or bought for use primarily in a business, including farming and a profession.
“Equity" means the fair market value of the debtor's interest in property, less the valid liens on that property.
“Exempt" means free from any lien obtained by judicial proceedings and is not liable to seizure or sale on execution or on any provisional or final process issued from any court, or any proceedings in aid of court process.
“Life insurance" means a policy issued by a stock or mutual life insurance company or by any mutual beneficiary or fraternal corporation, society, order or association to insure the life of an individual.
“Motor vehicle" means a self-propelled vehicle. “Motor vehicle" does not include equipment.
“Net income" means gross receipts paid or payable for personal services or derived from rents, dividends or interest less federal and state tax deductions required by law to be withheld.
“Resident" means an individual who intends to maintain his or her principal dwelling in this state.
“To the extent reasonably necessary for the support of the debtor and the debtor's dependents" means what the court determines is required to meet the present and anticipated needs of the debtor and the debtor's dependents, after consideration of the debtor's responsibilities, and the debtor's present and anticipated income and property, including exempt property.
Provisions for burial.
Cemetery lots, aboveground burial facilities, burial monuments, tombstones, coffins, cremation urns, urn vaults, outer burial containers, or other articles for the burial of the dead owned by the debtor and intended for the burial of the debtor or the debtor's family.
Equipment, inventory, farm products, and professional books used in the business of the debtor or the business of a dependent of the debtor, not to exceed $15,000 in aggregate value.
If the debtor does not claim an exemption under subd. 1.
, any interest of the debtor, not to exceed $15,000 in aggregate value, in a closely held business that employs the debtor or in whose business the debtor is actively involved.
Child support, family support or maintenance payments.
Alimony, child support, family support, maintenance or separate maintenance payments to the extent reasonably necessary for the support of the debtor and the debtor's dependents.
Household goods and furnishings, wearing apparel, keepsakes, jewelry and other articles of personal adornment, appliances, books, musical instruments, firearms, sporting goods, animals, or other tangible personal property held primarily for the personal, family or household use of the debtor or a dependent of the debtor, not to exceed $12,000 in aggregate value.
County fairs and agricultural societies.
All sums paid as state aid under s. 93.23 (1)
to county fairs and agricultural societies.
Federal disability insurance benefits.
All moneys received or receivable by a person as federal disability insurance benefits under 42 USC 401
Fire and casualty insurance.
For a period of 2 years after the date of receipt, insurance proceeds on exempt property payable to and received by the debtor, if the exempt property has been destroyed or damaged by fire or casualty of any nature.
Fire and police pension fund.
All money paid or ordered to be paid to any member of any fire or police department or to the surviving spouse or guardian of the minor child or children of a deceased or retired member of any such department, which money has been paid or ordered to be paid to any such person as a pension on account of the service of any person in any such department in any city in this state whose population exceeds 100,000.
Fire engines and equipment.
All fire engines, apparatus and equipment, including hose, hose carts and hooks and ladders, belonging to or which may hereafter belong to any town, city or village in this state, and which are or may be kept and used for the protection of property in such town, city or village from fire, together with the engine houses and hooks and ladder houses for the protection of the same, and the lot or lots on which such engine and hook and ladder houses may be situated, when owned by any such town, city or village; and any lot or lots owned, used and occupied by any such town, city or village for corporate purposes.
In this paragraph, “
applicable date" means the earlier of the following:
The date, if any, that the cause of action was filed that resulted in the judgment with respect to which the execution order was issued.
Except as provided in subd. 3.
and par. (j)
, any unmatured life insurance or annuity contract owned by the debtor and insuring the debtor, the debtor's dependent, or an individual of whom the debtor is a dependent, other than a credit life insurance contract, and the debtor's aggregate interest, not to exceed $150,000 in value, in any accrued dividends, interest, or loan value of all unmatured life insurance or annuity contracts owned by the debtor and insuring the debtor, the debtor's dependent, or an individual of whom the debtor is a dependent.
If the life insurance or annuity contract was issued less than 24 months before the applicable date, the exemption under this paragraph may not exceed $4,000.
If the life insurance or annuity contract was issued at least 24 months but funded less than 24 months before the applicable date, the exemption under this paragraph is limited to the value of the contract the day before the first funding that occurred less than 24 months before the applicable date and the lesser of either the difference between the value of the contract the day before the first funding that occurred less than 24 months before the applicable date and the value of the contract on the applicable date or $4,000.
Motor vehicles not to exceed $4,000 in aggregate value. Any unused amount of the aggregate value from par. (d)
may be added to this exemption to increase the aggregate exempt value of motor vehicles under this paragraph.
Seventy-five percent of the debtor's net income for each one week pay period. The benefits of this exemption are limited to the extent reasonably necessary for the support of the debtor and the debtor's dependents, but to not less than 30 times the greater of the state or federal minimum wage.
Life insurance claims, personal injury or wrongful death claims. 815.18(3)(i)1.a.
A payment to the debtor under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of that individual's death, to the extent reasonably necessary for the support of the debtor and the debtor's dependents.
A payment resulting from the wrongful death of an individual of whom the debtor was a dependent, in an amount reasonably necessary for the support of the debtor and the debtor's dependents.
A payment, not to exceed $50,000, resulting from personal bodily injury, including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent.
A payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent in an amount reasonably necessary for the support of the debtor and the debtor's dependents.
Assets held or amounts payable under any retirement, pension, disability, death benefit, stock bonus, profit sharing plan, annuity, individual retirement account, individual retirement annuity, Keogh, 401-K or similar plan or contract providing benefits by reason of age, illness, disability, death or length of service and payments made to the debtor therefrom.
The plan or contract must meet one of the following requirements:
The plan or contract complies with the provisions of the internal revenue code.
The employer created the plan or contract for the exclusive benefit of the employer, if self-employed, or of some or all of the employees, or their dependents or beneficiaries and that plan or contract requires the employer or employees or both to make contributions for the purpose of distributing to the employer, if self-employed, the employees, or their dependents or beneficiaries, the earnings or the principal or both of a trust, annuity, insurance or other benefit created under the plan or contract and makes it impossible, at any time prior to the satisfaction of all liabilities with respect to beneficiaries under a trust created by the plan or contract, for any part of the principal or income of the trust to be used for or diverted to purposes other than for the exclusive benefit of those beneficiaries.
The plan or contract may permit the income created from personal property held in a trust created under the plan or contract to accumulate in accordance with the terms of the trust. The trust may continue until it accomplishes its purposes. The trust is not invalid as violating the rule against perpetuities or any law against perpetuities or the suspension of the power of alienation of title to property.
The benefits of this exemption with respect to the assets held or amounts payable under or traceable to an owner-dominated plan for or on behalf of a debtor who is an owner-employee shall be limited to the extent reasonably necessary for the support of the debtor and the debtor's dependents.
This exemption does not apply to an order of a court concerning child support, family support or maintenance payments, or to any judgment of annulment, divorce or legal separation.
“Employer" includes a group of employers creating a combined plan or contract for the benefit of their employees or the beneficiaries of those employees.
“Owner-dominated plan" means any plan or contract that meets the requirements of subd. 2.
and under which 90 percent or more of the present value of the accrued benefits or 90 percent or more of the aggregate of the account is for the benefit of one or more individuals who are owner-employees. For purposes of this definition, the accrued benefits or account of an owner-employee under a plan or contract shall include the accrued benefits or account of the spouse, any ancestor or lineal descendant, whether by blood or by adoption, or the spouse of such a lineal descendant, of the owner-employee under the same plan or contract.