Chapter 128

CHAPTER 128

CREDITORS’ ACTIONS

128.001   Definitions.

128.01   Jurisdiction.

128.02   Assignment; mistakes; amendments.

128.03   Liens by legal proceedings; assignment.

128.05   Assignee’s consent, recording copy of assignment.

128.06   Assignee required to comply, when.

128.07   Preferred creditors.

128.08   Receiver; custodian.

128.09   Bond.

128.10   Meetings of creditors; removal or death of receiver.

128.11   Provisional remedies.

128.12   Dismissal; intervention.

128.13   Inventory of assets and list of creditors.

128.14   Notice; injunction; time of filing claims.

128.15   Objections to claims; appeal; secured claims.

128.16   Discovery.

128.17   Order of distribution.

128.18   Liens.

128.19   Title to property.

128.20   Settlement of receiver’s or assignee’s accounts.

128.21   Voluntary proceedings by wage earners for amortization of debts.

128.25   Uniform act governing secured creditor’s dividends in liquidation proceedings.

128.001 128.001 Definitions. In this chapter:

128.001(1) (1) Insolvent. A person is considered “insolvent” whenever any of the following conditions is met:

128.001(1)(a) (a) The aggregate of the person’s property, exclusive of any property 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.

128.001(1)(b) (b) An execution against the person or the person’s property is returned unsatisfied.

128.001(1)(c) (c) The person makes an assignment for the benefit of creditors.

128.001(2) (2) Petition. “Petition” means a petition for the appointment of a receiver under this chapter.

128.001 History History: 1997 a. 253.

128.01 128.01 Jurisdiction. The circuit courts shall have supervision of proceedings under this chapter and may make all necessary orders and judgments therefor; and all assignments for the benefit of creditors shall be subject to this chapter.

128.01 History History: 1977 c. 449.

128.01 Annotation This chapter does not encroach upon the field occupied by the federal Bankruptcy Act merely because the chapter provides for a distribution, either voluntary or not, of assets of an insolvent corporation among its creditors. Gelatt v. DeDakis, 77 Wis. 2d 578, 254 N.W.2d 171 (1977).

128.01 Annotation Chapter 128: Wisconsin’s Bankruptcy Alternative. Murrell. Wis. Law. May 2008.

128.01 Annotation Chapter 128: A Change Will Do Us Good. Furay. Wis. Law. June 2019.

128.02 128.02 Assignment; mistakes; amendments.

128.02(1) (1) Voluntary assignments for the benefit of creditors may be made to an assignee who is a resident of this state, who shall, before taking possession of the property assigned and before taking upon himself or herself any trust conferred by the assignment, file the assignment and deliver to the clerk of the circuit court of the county in which such assignor resides or has his or her principal place of business at the time of the assignment, a bond as required by s. 128.09.

128.02(2) (2) No assignment shall be void because of any defect, informality or mistake in the assignment or in the bond, inventory or list of creditors accompanying the assignment. The court may direct the amendment of the assignment or of any other document to effect the intention of the assignor or assignee, or to obtain a distribution of the assignor’s assets as provided in this chapter, and any such amendment shall relate back to the time of the execution of the document. No mistake in filing a copy instead of an original or any like mistake or inadvertent failure to comply with this chapter shall void the assignment.

128.02(3) (3) 

128.02(3)(a) (a) No creditor shall, in case a debtor has attempted to make an assignment for the benefit of creditors, or in case of the insolvency of any debtor, by attachment, garnishment or otherwise, obtain priority over other creditors upon the assignment being adjudged void, or in consequence of any sale, lien or security being adjudged void.

128.02(3)(b) (b) In all cases described in par. (a), the property of the debtor shall be administered for the ratable benefit of all of the debtor’s creditors under the direction of the court by the assignee or by a receiver.

128.02 History History: 1993 a. 492; 1997 a. 253.

128.03 128.03 Liens by legal proceedings; assignment. When a lien has been obtained by legal proceedings against the property of a debtor the debtor may, within 30 days thereafter, make an assignment of all of the debtor’s nonexempt property for the benefit of all of the debtor’s creditors, whereupon the lien shall be dissolved and the property shall be turned over to the assignee.

128.03 History History: 1993 a. 492; 1997 a. 253.

128.05 128.05 Assignee’s consent, recording copy of assignment.

128.05(1) (1) The assignee shall endorse in writing the assignee’s acceptance of the assignment, and shall file the assignment with the clerk of 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 the assignment, order the assignee to administer the debtor’s estate pursuant to this chapter, and the assignee shall be vested with the powers of a receiver.

128.05(2) (2) A certified copy 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 the assignment in the same manner and with the same effect as other conveyances.

128.05 History History: 1993 a. 492; 1997 a. 253.

128.05 Annotation An assignee is a trustee for both the debtor and creditors but must look primarily to the interests of creditors. Voluntary Assignment of Linton v. Schmidt, 88 Wis. 2d 183, 277 N.W.2d 136 (1979).

128.06 128.06 Assignee required to comply, when.

128.06(1) (1) The assignee under a voluntary assignment not previously filed under the provisions of this chapter shall upon petition of any creditor without proof of the insolvency of the assignor be required to file the assignment and comply with the provisions of this chapter.

128.07 128.07 Preferred creditors.

128.07(1) (1) Definitions. In this section:

128.07(1)(a) (a) A person shall be 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 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 creditor to obtain a greater percentage of his or her debt than any other creditor of the same class.

128.07(1)(b) (b) “Recipient” means a person who receives a preference, or benefits from a preference, or that person’s agent.

128.07(1)(c) (c)

128.07(1)(c)1. 1. “Transfer” means 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: