Before issuing an order under sub. (1)
, the court must find that the person is more likely than not to cause serious bodily harm to the person who petitioned for the restraining order or injunction, weighing the following factors:
Whether the person has allegedly caused physical injury, intentionally abused pets or damaged property, or committed sexual assault, an act of strangulation or forcible entry to gain access to the petitioner.
Whether the person has threatened any individual, including the petitioner, with harm.
Whether the person has a history of improperly using or threatening to use a firearm or other dangerous weapon.
Whether the person has expressed suicidal ideation.
Whether the person has exhibited obsessive or controlling behavior toward the petitioner or any member of the petitioner's family, including stalking, surveillance, or isolation of the petitioner or any member of the petitioner's family.
Whether the person has a history of abusing alcohol or a controlled substance.
The court may request the department of corrections to provide a validated risk assessment of the person in order to make the findings required in sub. (2)
If a court enters an order under sub. (1)
, the court shall provide the person who petitioned for the restraining order or injunction with a referral to a domestic violence or sexual assault victim service provider.
If, after weighing the factors set forth under sub. (2)
, the court determines that a person is more likely than not to cause serious bodily harm to the person who petitioned for the restraining order or injunction, and the court determines that another alternative, including imprisonment, is more likely to protect the person who petitioned for the restraining order or injunction, the court may not enter an order under sub. (1)
History: 2011 a. 266
; 2013 a. 20
Writ of ne exeat.
The court or a judge may grant the writ of ne exeat to prevent any defendant from going out of the state until the defendant shall give security. It may be granted at any time before judgment.
Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.13; 1993 a. 486
Same; when granted.
No writ of ne exeat shall be granted unless it appears to the court or judge by the complaint or an affidavit that grounds exist therefor; and the court or judge granting such writ shall direct to be endorsed thereon the penalty of the bond and security to be given by the defendant.
History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.14.
Same; discharge of.
If the defendant shall satisfy the court or judge granting such writ that there is no reason for the defendant's restraint or shall give security for the performance of the judgment in the action, the writ shall be discharged.
Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.15; 1993 a. 486
A receiver may be appointed:
On the application of either party, when the applying party establishes an apparent right to or interest in property which is the subject of the action and which is in the possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially impaired.
By the judgment, or after judgment, to carry it into effect or to dispose of the property according to the judgment.
To preserve the property during the pendency of an appeal; or when an execution has been returned unsatisfied and the judgment debtor refuses to apply the judgment debtor's property in satisfaction of the judgment or in an action by a creditor under ch. 816
When a corporation has been dissolved or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights.
In accordance with the practice which obtained when the code of 1856 took effect except as otherwise provided in this chapter.
The receiver shall give to and file with the clerk of the court a bond, conditioned in the usual manner, with sureties to be approved by the judge making the appointment sufficient to cover all property likely to come into the receiver's hands.
If the person seeking the appointment of a receiver under sub. (1)
is a savings and loan association or savings bank supervised by the division of banking or a corporation supervised by the home loan bank board, federal office of thrift supervision, federal deposit insurance corporation, or resolution trust corporation, the court, unless the opposing party objects, shall appoint an officer of such corporation as receiver to act without compensation and to give such bond as the court requires.
Sup. Ct. Order, 67 Wis. 2d 585, 760, 779 (1975); Stats. 1975 s. 813.16; 1991 a. 221
; 1993 a. 486
; 1995 a. 27
; 1999 a. 9
; 2003 a. 33
A court could appoint a receiver to accept mortgage payments after a foreclosure action was started when the plaintiff refused to accept them on the ground that it would be a waiver and the defendant claimed the right to make them on the ground that the defendant had no right to accelerate the note. American Medical Services, Inc. v. Mutual Federal Savings & Loan Assoc. 52 Wis. 2d 198
, 188 N.W.2d 529
A receiver has a duty to a corporation subject to receivership and its creditors not to deal with receivership property to benefit itself. A consulting contract that was offered to the insolvent corporation's president was a corporate opportunity that the receiver improperly appropriated to itself when it took control of the corporation. Community National Bank v. Medical Benefit Administrators, LLC, 2001 WI App 98
, 242 Wis. 2d 626
, 626 N.W.2d 340
Receiver; payment of employees' wages.
Whenever a receiver shall be appointed to manage or close up any business, the receiver shall immediately report to the court the amount due the employees in such business; and said court shall order the receiver to pay out of the first receipts of said business, after the payment of costs, debts due the United States or this state, taxes and assessments and the current expenses of carrying on or closing said business, the wages, including pension, welfare and vacation benefits, of such employees earned during the last 3 months of employment and within one year prior to the receiver's appointment.
History: 1971 c. 63
; Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.17; 1993 a. 486
Uniform absence as evidence of death and absentee's property act; insurance policy provisions invalid. 813.22(1)(1)
No provision concerning the effect to be given to evidence of absence or of death in any policy of life or accident insurance or in the charter or bylaws of any mutual or fraternal insurance association hereafter executed or adopted, shall be valid.
When any such policy, charter or bylaws hereafter executed or adopted contains a provision requiring a beneficiary to bring suit upon a claim of death within one year or other period after the death of the insured, and the fact of the absence of the insured is relied upon by the beneficiary as evidence of the death, the action may be begun, notwithstanding such provision in the policy or charter or bylaws, at any time within the statutory period of limitation for actions on contracts in writing dating from the date of the giving of written notice of such absence to the insurer, which notice shall be given within one year from the date when the beneficiary last heard of the absent insured. If such notice is not given then the statutory period runs from the time when the absent person was last heard of by the beneficiary.
Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.22; 1979 c. 89
Receiver may be appointed when. 813.23(1)(a)
When a person domiciled in this state and having an interest in any form of property disappears and is absent from the person's place of residence without being heard of after diligent inquiry, upon application for a finding of such disappearance and absence and of the necessity for the appointment of a receiver to the circuit court of the county of the absentee's domicile by any person who would have an interest in said property were said absentee deceased or by an insurer or surety or creditor of such absentee, after notice as provided in s. 813.24
, and upon good cause being shown, the court may find that the absentee was last heard of as of a date certain and may appoint a receiver to take charge of the absentee's estate. The absentee shall be made a party to said proceeding; and any other person who would have an interest in said property were said absentee deceased, upon direction by the court, may be made a party to said proceeding.
When a person is a member of the armed forces of the United States without this state, or is serving as a merchant seaman outside of the limits of the United States included within the 50 states and the District of Columbia, or is outside such limits by permission, assignment or direction of any department or official of the United States government in connection with any activity pertaining to the prosecution of any war in which the United States is then engaged, and has an interest in any form of property in this state and no adequate power of attorney on his or her behalf has been recorded in the office of the register of deeds of the county of his or her domicile or of the county where such property is situated, upon application for findings establishing the foregoing and the necessity for appointment of a receiver, to the circuit court of the county of such person's domicile or of the county where such property is situated, by any person who would have an interest in said property were such person deceased, or by an insurer or surety or creditor of such person, or by any other person or on the court's own motion, after notice as provided in s. 813.24
, and upon good cause being shown, the court may, on making such findings, appoint a receiver to take charge of such person's estate. Such person should be made a party to such proceedings; and any other person who would have an interest in said property were said person deceased, upon direction by the court, may be made a party to said proceedings. Such person shall be deemed an “absentee" within the meaning of ss. 813.23
The receiver, upon giving bond to be fixed in amount and with surety to be approved by the court and upon such conditions as will insure the conservation of such property, shall under the direction of said court administer said property as an equity receivership with power:
To take possession of all property of the absentee wherever situated.
With the approval of the court in each case, to pay all debts due by the absentee.
To pay over the proceeds of such part or all of said property, or the income thereof as may be necessary for the maintenance and support of the absentee's dependents.
If the personal property of the absentee is not sufficient to pay all of the absentee's debts, and to provide for the maintenance and support of the absentee's dependents, the receiver may apply to the court for an order to sell or mortgage so much of the real estate as may be necessary therefor; said sale or mortgage to be reported to, approved and confirmed by the court and said receiver to be ordered to make deed conveying or mortgaging said real property to the purchaser or lender upon the purchaser's or lender's complying with the terms of sale or mortgage.
Upon the filing of the application referred to in sub. (1)
, the court may for cause shown appoint a temporary receiver to take charge of the property of the absentee and conserve it pending hearing upon the application. Such temporary receiver shall qualify by giving bond in an amount and with surety to be approved by the court and shall exercise only the powers named by the court. Should a permanent receiver be appointed, the temporary receiver shall turn over all property in the temporary receiver's possession, less such as may be necessary to cover the temporary receiver's expenses and compensation as allowed by the court, to the permanent receiver, shall file the temporary receiver's final account and upon its approval be discharged. Should the application for permanent receiver be denied, the temporary receiver shall restore to those from whom it may have been obtained, all property in the temporary receiver's possession, less such only as may be necessary to cover the temporary receiver's expenses and compensation as allowed by the court, shall file the temporary receiver's final account and be discharged. Where the application is denied, the expenses of the temporary receivership and the compensation of the temporary receiver may in the discretion of the court be taxed as costs of the proceeding to be paid by the applicant and shall be enforceable by the temporary receiver against the applicant.
Sup. Ct. Order, 67 Wis. 2d 585, 760, 779 (1975); Stats. 1975 s. 813.23; 1993 a. 486
All notices required under ss. 813.22
shall be served upon all parties ordered by the court to be served as prescribed by statutes or rules, except that in addition thereto service on the absentee shall be by a class 3 notice, under ch. 985
, in the county of the absentee's domicile, the last insertion to be not less than 10 nor more than 20 days prior to the time set for any hearing. The original notice prescribed in s. 813.23 (1)
shall require each person claiming an interest in the property of the absentee to file in court within a time fixed by the court a statement of the nature and extent of such interest. In relation to a person in military service similar notice shall be given; except that where it appears to the court that such person was not domiciled in this state immediately prior to such service, publication of the notice may be made in the county where property of such person is situated.
History: Sup. Ct. Order, 67 Wis. 2d 585, 760, 779 (1975); Stats. 1975 s. 813.24.
Search for absentee. 813.25(1)(1)
The court, upon application, may direct the receiver to make search for the absentee in any manner which the court may deem advisable, including any or all of the following methods:
By inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the absentee's whereabouts;
By notifying officers of justice and public welfare agencies in appropriate locations of the absentee's disappearance;
By engaging the services of an investigation agency.
The expenses of such search and of the notices provided for in s. 813.24
shall be taxed as costs and paid out of property of the absentee.
History: Sup. Ct. Order, 67 Wis. 2d 585, 760, 779 (1975); Stats. 1975 s. 813.25.
Final hearing and finding. 813.26(1)(1)
At any time, during the proceedings, upon application to the court and presentation of satisfactory evidence of the absentee's death, the court may make a final finding and decree that the absentee is dead; in which event the decree and a transcript of all of the receivership proceedings shall be certified to the proper court for any administration required by law upon the estate of a decedent, and the receivership court shall proceed no further except for the purposes set forth in s. 813.28 (1)
After the lapse of 5 years from the date of the finding provided for in s. 813.23 (1)
, if the absentee has not appeared, the court may proceed to take further evidence and thereafter make a final finding and enter a decree declaring that all interest of the absentee in the absentee's property has ceased and devolved upon others by reason of the absentee's failure to appear and make claim.
At any time, upon proof to the court that a power of attorney has been recorded as provided by s. 813.23 (1) (b)
, the court shall direct termination of the receivership proceedings and transfer of property held thereunder to the person in military service or to the attorney named in such power of attorney upon payment of reasonable expenses and compensation of the receiver in the discretion of the court.
Sup. Ct. Order, 67 Wis. 2d 585, 760, 779 (1975); Stats. 1975 s. 813.26; 1993 a. 486
Claim of absentee barred.
No action shall be brought by an absentee to recover any portion of this property after the final finding and judgment provided for in s. 813.26
History: Sup. Ct. Order, 67 Wis. 2d 585, 760, 779 (1975); Stats. 1975 s. 813.27.
Termination of receivership and disposition of property of absentee.
Upon the entry of any final finding and decree as provided in s. 813.26
, the court shall proceed to wind up the receivership and terminate the proceedings:
By satisfying all outstanding debts and charges of the receivership; and
By then certifying the proceedings to the proper court; or
By satisfying all outstanding debts and charges;
By then deducting for the insurance fund provided in s. 813.31
a sum equal to 5 percent of the total value of the property remaining, including amounts paid to the receivership estate from policies of insurance on the absentee's life;
In both cases by requiring the receiver's account and upon its approval discharging the receiver and the receiver's bondsmen and entering a final decree terminating the receivership.
Sup. Ct. Order, 67 Wis. 2d 585, 760, 780 (1975); Stats. 1975 s. 813.28; 1993 a. 486
; 2009 a. 177
Distribution of property of absentee.
The property remaining for distribution in accordance with s. 813.28 (2) (c)
shall be distributed among those persons who would be entitled thereto under the laws of descent and distribution of this state had the absentee died intestate as of the date determined by the court in its final finding and decree; or in case the absentee leaves a document which, had the absentee died, would under the laws of this state be entitled to probate as the absentee's will, the distribution shall be according to the terms of that document as of that date. The validity and effect of the distribution of said property shall be determined by the court administering the receivership and shall be final and binding upon all persons including the absentee.
Sup. Ct. Order, 67 Wis. 2d 585, 760, 780 (1975); Stats. 1975 s. 813.29; 1993 a. 486
Insurance policies. 813.30(1)(1)
At the time of the distribution under s. 813.29
, the court may direct the payment to the beneficiaries of any sums due and unpaid under any policies of insurance upon the life of the absentee, if the claim is uncontested by the insurer.
If the claim is contested, the court shall take jurisdiction of the action and shall submit to a jury, if one be called for, the issue of death of the insured and any other issues arising under the policy.
Where the survival of a named beneficiary is not established, ss. 813.22
shall apply as if the proceeds of the insurance were a part of the estate of the absentee.
If in any proceeding under subs. (1)
the absentee is not found to be deceased and the policy provides for a surrender value, the beneficiary may request the receiver, acting for the insured, to demand the payment of surrender value. The receiver's receipt for such payment shall be a release to the insurer of all claims under the policy. The receiver shall pay over to the beneficiary, if the beneficiary survives the insured, otherwise to the estate of the absentee, the sum thus received, reserving only an amount allowed by the court as costs of the proceedings under this section.
Payment by an insurer hereunder shall be in full discharge of all contractual liability. No action shall be brought by an absentee to recover any portion of the proceeds, or any other benefits or values, arising out of contracts of life insurance issued upon the absentee's life, after any distribution of such property pursuant to this section.
Sup. Ct. Order, 67 Wis. 2d 585, 760, 780 (1975); Stats. 1975 s. 813.30; 1993 a. 486
Absentee insurance fund. 813.31(1)(1)
In each case of termination of receivership as provided in s. 813.28
, the court, except in cases where the proceedings have been certified to the proper court under s. 813.26 (1)
, shall set aside the sum there named and direct its payment by the receiver, to the secretary of administration.
The secretary of administration shall retain or invest the funds thus paid in.
If at any time thereafter an absentee whose estate has been distributed under a final finding and judgment made as herein provided shall appear and make claim for reimbursement, the court may in a proceeding by the claimant against the secretary of administration order payment to the claimant as in its opinion may be fair and adequate under the circumstances.