Chapter 812

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.

812.44(1) (1) 

812.44(1)(a) (a) The judicial conference shall review the forms in this subchapter and may periodically revise those forms. Those revisions may not alter the rights of the parties under this subchapter. The judicial conference shall notify the clerks of court and any interested person of any forms revised under this subsection.

812.44(1)(b) (b) Except as provided under par. (bg), no party may use a form substantially different from those in this subchapter as revised under this subsection. No party may alter those forms in a manner that may mislead any other party. If the court finds that a party has used a misleading form, the court shall award the aggrieved party actual damages, costs and reasonable attorney fees resulting from the additional proceeding.

812.44(1)(bg) (bg) If the judgment debt meets one of the conditions under s. 812.34 (1), the creditor shall amend the forms used under this subchapter to inform the garnishee and debtor that the exemptions provided under s. 812.34 (1) do not apply.

812.44(1)(c) (c) No garnishee is required to act as requested by any form in this subchapter that does not identify the parties as required by s. 812.31 (4) or that is illegibly completed or otherwise unintelligible. No garnishee is liable to any person for refusing to so act. The garnishee shall mail that form back to the sending party, if known, within 3 days after receipt. The garnishee shall include with the returned form a statement specifying the defect in the form and that the garnishee is not acting as requested by the form under the authority of this paragraph.

812.44(2) (2) The notice filed by the creditor to initiate an earnings garnishment under s. 812.35 (1) shall be in substantially the following form:

STATE OF WISCONSIN

CIRCUIT COURT: .... County

A.B., Creditor File or Reference Number ......

vs. EARNINGS

C.D., Debtor GARNISHMENT

and NOTICE

E.F., Garnishee

To the Clerk of Circuit Court:

Please take and file notice that the creditor has today commenced an earnings garnishment action under subchapter II of chapter 812 of the Wisconsin Statutes against the debtor and the garnishee to collect an unsatisfied civil judgment. The judgment was entered on the .... day of ...., ...., (year) by .... (County Circuit or Federal District) Court. The case number of the action in which the judgment is entered is .... [and a transcript of the judgment was entered in this county in file number ....]. The creditor’s total claim for the unsatisfied portion of this judgment plus statutory interest and costs is $....

The names and addresses last known to the creditor of the parties to this proceeding are as follows:

Debtor

Name: ....

Address: ....

Garnishee

Name: ....

Address: ....

Creditor

Name: ....

Address: ....

Creditor’s Attorney

Name: ....

Address: ....

Signature of Creditor or Creditor’s Attorney: ....

Date: ....

812.44(3) (3) The earnings garnishment form issued by the clerk under s. 812.35 (2) shall be in substantially the following form:

STATE OF WISCONSIN

CIRCUIT COURT: .... County