Chapter 812

812.34 812.34 Exemption.

812.34(1) (1) The exemptions provided in this section do not apply if the judgment debt meets one of the following conditions:

812.34(1)(a) (a) Was ordered by a court under s. 128.21 or by any court of the United States under 11 USC 1301 to 1330.

812.34(1)(b) (b) Is for the support of any person.

812.34(1)(c) (c) Is for unpaid taxes.

812.34(2) (2) 

812.34(2)(a) (a) Unless the court grants relief under s. 812.38 (2) or par. (b) or (c) applies, 80 percent of the debtor’s disposable earnings are exempt from garnishment under this subchapter.

812.34(2)(b) (b) The debtor’s earnings are totally exempt from garnishment under this subchapter if:

812.34(2)(b)1. 1. The debtor’s household income is below the poverty line.

812.34(2)(b)2. 2. The debtor receives need-based public assistance, has received such assistance within 6 months prior to service of the earnings garnishment forms upon the garnishee or has been determined eligible to receive need-based assistance although actual receipt of benefits has not commenced.

812.34(2)(c) (c) If the garnishment of 20 percent 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.

812.34(3) (3) The judicial conference shall adopt and make available schedules and worksheets to assist debtors in computing their eligibility for exemption under sub. (2) (b) 1. The schedules shall divide the annual poverty line for families of various sizes by 12, rounding to the nearest dollar, and the worksheets shall assist debtors to compute their household incomes. The judicial conference shall develop separate schedules for debtors paid on a weekly, biweekly, semimonthly and monthly basis by dividing the annual poverty line by 52, 26, 24 and 12, respectively, and rounding to the nearest dollar. The judicial conference shall revise those schedules annually to reflect changes in the poverty line. The revised schedules shall take effect July 1 for earnings garnishments or extensions commencing thereafter.

812.34 History History: 1993 a. 80; 1999 a. 119; 2003 a. 138.

812.34 Note NOTE: 1993 Wis. Act 80 contains judicial council notes.

812.35 812.35 Commencement of action.

812.35(1) (1) To commence an earnings garnishment proceeding, the judgment creditor shall file with the clerk of courts a garnishment notice under s. 812.44 (2).

812.35(1a) (1a) No earnings garnishment action may be brought to recover the amount owed by a debtor for the payment of a payday loan, as defined in s. 138.14 (1) (k).

812.35(2) (2) Upon receipt of the notice under sub. (1) and payment of the fee under s. 814.62 (1), the clerk of courts shall issue 2 earnings garnishment forms under s. 812.44 (3) for each garnishee. Blank earnings garnishment forms may be issued, but they shall carry the court seal. A circuit court may permit, by rule, the clerk to issue earnings garnishment forms after payment of the fee but before the filing of the notice under sub. (1). That circuit court rule shall require the notice to be filed with the court at a later time, but no later than 5 business days after the date the garnishee is served under sub. (3).

812.35(3) (3) 

812.35(3)(a) (a) Within 60 days after filing the notice under sub. (1) and as specified under sub. (4) (c), the creditor shall serve one of the 2 earnings garnishment forms upon the debtor by one of the following means:

812.35(3)(a)1. 1. First class mail.

812.35(3)(a)2. 2. Certified mail, return receipt requested.

812.35(3)(a)3. 3. Any means permissible for the service of a summons in a civil action, other than publication.

812.35(3)(b) (b) Within 60 days after filing the notice under sub. (1), the creditor shall serve one of the 2 earnings garnishment forms upon the garnishee by one of the means listed under par. (a) 1. to 3., or by other means if the garnishee signs an admission of service.

812.35(4) (4) 

812.35(4)(a) (a) The creditor shall tender the garnishee fee under s. 812.33 (1) to the garnishee at the time that the earnings garnishment form is served.

812.35(4)(b) (b) The creditor shall serve all of the following on the debtor at the time that the earnings garnishment form is served:

812.35(4)(b)1. 1. An exemption notice under s. 812.44 (4).

812.35(4)(b)2. 2. An answer form under s. 812.44 (5).

812.35(4)(b)3. 3. The schedules and worksheets adopted under s. 812.34 (3).

812.35(4)(c) (c) Service on the debtor shall be made within 7 business days after the date of service on the garnishee and at least 3 business days before the payday of the first pay period affected by the garnishment. Service by mail is complete upon mailing.

812.35(5) (5) Upon being served, the garnishee shall determine whether the garnishee may become obligated to the debtor for earnings earned within pay periods beginning within 13 weeks after the date of service. If it is unlikely that the garnishee will become so obligated, the garnishee shall send a statement of that fact to the creditor by the end of the 7th business day after receiving the earnings garnishment form under sub. (3). The creditor shall send a copy of this statement to the court within 7 business days after receipt of the statement.

812.35(6) (6) If the garnishee may become obligated to the debtor for earnings earned within pay periods beginning within 13 weeks after the date of service, but one or more earnings garnishments against the debtor have already been served on the garnishee and not terminated, the garnishee shall retain the earnings garnishment form and place the garnishment into effect the pay period after the last of any prior earnings garnishments terminates. The garnishee shall notify the debtor of the amount of the garnishment and shall notify the creditor of the amount owed on the pending garnishments by the end of the 7th business day after receipt of the garnishment form under sub. (3). If, before the earnings garnishment takes effect, the garnishee determines that it is unlikely that the garnishee will continue to be obligated to the debtor for earnings, the garnishee shall notify the creditor and court under sub. (5) within 7 business days after making that determination.

812.35 History History: 1993 a. 80; 2009 a. 405; 2015 a. 55, 337.

812.35 Note NOTE: 1993 Wis. Act 80 contains judicial council notes.

812.35 Annotation The Wisconsin garnishment statute does not state that a creditor must serve the garnishment form on the debtor even if the debtor is represented by an attorney, and no court has interpreted the statute to require service on the debtor rather than on his or her attorney. Whitehead v. Discover Bank, 221 F. Supp. 3d 1055 (2016).

812.37 812.37 Debtor’s answer.

812.37(1) (1) Except as provided in s. 812.34 (1), the debtor may claim an exemption under s. 812.34 (2) (b) or 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. The debtor or debtor’s spouse may file an answer or an amended answer at any time before or during the effective period of the earnings garnishment.

812.37(2) (2) Whenever the garnishee receives a debtor’s answer or amended answer, the garnishee shall mail a copy of the answer to the creditor by the end of the 3rd business day after receiving the debtor’s answer, writing on that copy the date of receipt of the answer by the garnishee.

812.37(3) (3) Unless served with an order of the court directing otherwise, in determining whether to pay any part of the debtor’s earnings to the creditor, the garnishee shall accept as true and binding any exemption claimed in the debtor’s answer or any amended answer received before payment is made to the creditor under s. 812.39 (1).

812.37 History History: 1993 a. 80; 1997 a. 291; 2003 a. 138.

812.37 Note NOTE: 1993 Wis. Act 80 contains judicial council notes.

812.37 Annotation When sub.(3) is read in isolation, it appears to imply that although a garnishee is bound by an exemption claimed in an answer until the court rules on the exemption, the garnishee is free to disregard any defenses to the garnishment that are asserted in the answer. However, the official form embodied in s. 812.44 (3) clearly states that a garnishee is bound by both exemptions and defenses. When these provisions of the garnishment statute are read together, it appears that the garnishee is required to accept both exemptions and defenses as true pending a court ruling on the answer. Whitehead v. Discover Bank, 118 F. Supp. 3d 1111 (2015).

812.38 812.38 Judicial hearing.

812.38(1) (1) 

812.38(1)(a) (a) The creditor may file with the court a motion for a hearing and a written objection to the debtor’s answer.

812.38(1)(b) (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.

812.38(1)(c) (c) Any party to the earnings garnishment may move the court to order any other party to comply with the provisions of this subchapter, or for other equitable relief.

812.38(2) (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. 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.

812.38(3) (3) 

812.38(3)(a) (a) If the court finds that the debtor’s answer was asserted in bad faith, the court shall award the creditor actual damages, costs and reasonable attorney fees resulting from the additional proceedings.

812.38(3)(b) (b) If the court finds that the creditor objected to the debtor’s answer in bad faith, the court shall award the debtor actual damages, costs and reasonable attorney fees resulting from the additional proceedings.

812.38(3)(c) (c) The court may order judgment for damages, costs and attorney fees assessed under this subsection. If the party in whose favor an attorney fee award is made is not indebted to his or her attorney for fees, the court shall award the attorney fee directly to the attorney and enter judgment in favor of the attorney. Upon motion of any party in interest, on notice, the court may make any order necessary to protect the rights of those interested.

812.38 History History: 1993 a. 80; 2003 a. 138.

812.38 Note NOTE: 1993 Wis. Act 80 contains judicial council notes.

812.39 812.39 Payment to creditor.

812.39(1) (1) Between 5 and 10 business days after the payday of each pay period in which the debtor’s earnings are subject to the earnings garnishment, the garnishee shall pay the creditor that portion of the debtor’s nonexempt disposable earnings to which the creditor is entitled.

812.39(2) (2) Court-ordered assignments of the debtor’s earnings for support or maintenance under ch. 767, regardless of the date the garnishee first receives notice of the assignment, take priority over an earnings garnishment under this subchapter. If the debtor’s earnings are subject to assignment under s. 767.75, the creditor shall not be entitled to an amount greater than 25 percent of the debtor’s disposable earnings less the amount assigned under s. 767.75.

812.39(3) (3) The garnishee shall provide written notice to the debtor of any amounts paid to a creditor under this subchapter, at the time that the debtor’s earnings are paid to the creditor.

812.39 History History: 1993 a. 80; 2005 a. 443 s. 265.

812.39 Note NOTE: 1993 Wis. Act 80 contains judicial council notes.

812.40 812.40 Stipulated extension. At any time while an earnings garnishment is in effect, the debtor and creditor may stipulate in writing to an extension of the earnings garnishment for additional pay periods. The extension may commence on the first day after the earnings garnishment ends and shall end within 13 weeks after the last day of the last pay period affected by the earnings garnishment. The garnishee shall be bound by the extension if a copy of the stipulation is delivered or mailed to the garnishee, together with the additional garnishee fee under s. 812.33 (1), before the last day of the last pay period affected by the earnings garnishment or any prior stipulated extension of the earnings garnishment. A stipulated extension is void and the garnishee fee shall be refunded if, prior to the last day of the last pay period affected by the earnings garnishment, the garnishee is served under s. 812.35 (3) by a creditor seeking to satisfy a different judgment against the debtor.

812.40 History History: 1993 a. 80; 2015 a. 55, 337.

812.40 Note NOTE: 1993 Wis. Act 80 contains judicial council notes.

812.405 812.405 Garnishment of earnings to satisfy an order for restitution. Notwithstanding ss. 812.35 and 812.40, a garnishment of earnings payable to a debtor who owes victim restitution ordered under s. 973.20 (1r) remains valid and effective until the judgment is satisfied, unless sooner terminated by order of the court.

812.405 History History: 2015 a. 355.

812.41 812.41 Garnishee liability.

812.41(1) (1) If the garnishee fails to pay over funds to which the creditor is entitled under this subchapter within the time required under s. 812.39, the creditor may, upon notice to all of the parties, move the court for judgment against the garnishee in the amount of the unsatisfied judgment plus interest and costs. The garnishee may assert the affirmative defense that the amount of the debtor’s nonexempt disposable earnings that the creditor should have been paid is less than the amount of the unsatisfied judgment balance. If the garnishee proves that defense, the garnishee’s liability is limited to the amount the creditor should have been paid or $100, whichever is greater.

812.41(2) (2) The debtor may move the court for judgment against the garnishee for the debtor’s actual damages if the garnishee deducts more from the debtor’s earnings than is authorized by this subchapter.

812.41(3) (3) In any proceeding under sub. (2), the garnishee may assert the affirmative defense that the wrongful conduct of the garnishee was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid that error. If the garnishee proves that defense, liability of the garnishee is limited to the return to the debtor of any exempt disposable earnings paid to the creditor.

812.41 History History: 1993 a. 80.

812.41 Note NOTE: 1993 Wis. Act 80 contains judicial council notes.

812.41 Annotation When a garnishee/employer failed to withhold any wages in an earnings garnishment, the plaintiffs action against the employer for its failure to respond to the garnishment complaint was an action against the employer only. Consequently, the bankruptcy law automatic stay provisions do not apply. Kenosha Hospital & Medical Center v. Garcia, 2004 WI 105, 274 Wis. 2d 338, 683 N.W.2d 851, 02-1727.

812.41 Annotation The notice of motion for judgment against the garnishee in an earnings garnishment procedure should be served like a summons in the present case rather than as a paper in a pending action. Kenosha Hospital v. Garcia, 2004 WI 105, 274 Wis. 2d 338, 683 N.W.2d 851, 02-1727.

812.41 Annotation This section does not state that a creditor may not accept garnishment payments that the garnishee wrongfully withheld from the debtor’s earnings. Rather, the garnishee is liable to the debtor for actual damages if it “deducts more from the debtor’s earnings than is authorized by this subchapter.” No provision grants the debtor a claim against the creditor for accepting earnings that the garnishee wrongfully deducted, nor does the statute instruct the creditor to return wrongfully deducted earnings to the garnishee or to forward them to the debtor. If the garnishee wrongfully withholds the debtor’s earnings and sends them to the creditor, the creditor may accept the payments, and the debtor’s remedy for having his or her earnings wrongfully garnished lies against the garnishee. Whitehead v. Discover Bank, 221 F. Supp. 3d 1055 (2016).

812.42 812.42 Garnishment of earnings of public officers and employees.

812.42(1) (1) 

812.42(1)(a) (a) This section does not apply or extend to money due to an officer or employee for reimbursement for expenditures made by him or her in the discharge of his or her duties.

812.42(1)(b) (b) Actions under this section are subject to rules promulgated under s. 16.53 (1) (d) 4.

812.42(2) (2) 

812.42(2)(a) (a) Except as provided in this section, the procedures in earnings garnishment actions brought against the state or a political subdivision of the state shall be as provided in this subchapter. The creditor shall serve the earnings garnishment forms under s. 812.35 upon the department of administration if the state is the garnishee; upon the city treasurer if a 1st class city is the garnishee; and upon the secretary or clerk if any other political subdivision is the garnishee.

812.42(2)(b) (b) Notwithstanding ss. 812.35 and 812.40, a garnishment of earnings payable to a debtor by the state or a political subdivision of the state shall remain valid and effective until the judgment is satisfied, unless sooner terminated by order of the court.

812.42(2)(c) (c) In addition to the $15 garnishee fee, the garnishee shall receive a $3 fee for each payment delivered to the creditor under s. 812.39 after the first payment. That additional fee shall be deducted from the moneys delivered to the creditor. Those fees become part of the funds of the state if the department of administration is the garnishee, or funds of the appropriate governmental subdivision if any other governmental entity is the garnishee. The judgment creditor shall pay the initial garnishee fee to the secretary of administration or other governmental subdivision, as applicable.

812.42 History History: 1993 a. 80; 2003 a. 33.

812.42 Note NOTE: 1993 Wis. Act 80 contains judicial council notes.

812.43 812.43 Retaliation by garnishee for earnings garnishment forbidden. Unless permitted under any applicable collective bargaining agreement, a garnishee shall not impose any fee or take any adverse action against a debtor by reason of the garnishment of the debtor’s earnings. If a garnishee violates this section, the debtor may bring an action for reinstatement, back wages and benefits, restoration of seniority, other relief allowed by law and reasonable attorney fees incurred in bringing this action.

812.43 History History: 1993 a. 80.

812.43 Note NOTE: 1993 Wis. Act 80 contains judicial council notes.

812.44 812.44 Forms.