Chapter 812

812.24(2) (2) The court before which the garnishment action is pending shall have summary jurisdiction under this section.

812.24 History History: Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975), 779; Stats. 1975 s. 812.24; 1977 c. 203.

subch. II of ch. 812 SUBCHAPTER II

EARNINGS GARNISHMENT

812.30 812.30 Definitions. In this subchapter:

812.30(1) (1) “Business day” has the meaning given in s. 421.301 (6).

812.30(2) (2) “Court” includes a circuit court commissioner assigned to preside at a proceeding under this subchapter.

812.30(3) (3) “Creditor” means a person who has a claim against a debtor.

812.30(4) (4) “Debtor” means the person whose earnings are subject to the garnishment and who is either the judgment debtor or the judgment debtor’s spouse whose earnings are marital property.

812.30(5) (5) “Dependent” means the debtor’s spouse if living in the debtor’s household and any other individual whom the debtor is legally required to support and to whom the debtor provides substantial support or maintenance.

812.30(6) (6) “Disposable earnings” means that part of the earnings of the debtor remaining after deducting social security taxes and federal and state income taxes listed on the person’s wage statement.

812.30(7) (7) “Earnings” means compensation paid or payable by the garnishee for personal services, whether designated as wages, salary, commission, bonus or otherwise, and includes periodic payments under a pension or retirement program.

812.30(8) (8) “Household income” means the disposable earnings of the debtor and dependents during any month in which the garnishment is in effect, plus unearned income received by the debtor and dependents in that month, less any of the debtor’s earnings assigned by court order under ch. 767.

812.30(9) (9) “Need-based public assistance” means aid to families with dependent children, relief funded by a relief block grant under ch. 49, relief provided by counties under s. 59.53 (21), medical assistance, supplemental security income, food stamps, or benefits received by veterans under s. 45.40 (1m) or under 38 USC 1501 to 1562.

812.30(10) (10) “Poverty line” means the income guideline established under 42 USC 9902 (2).

812.30 History History: 1993 a. 80; 1995 a. 27, 201; 2001 a. 61; 2005 a. 22; 2009 a. 113; 2017 a. 366.

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

812.31 812.31 Procedure.

812.31(1) (1) The procedures in this subchapter govern the garnishment of earnings, regardless of the amount of the judgment debt. Except as otherwise provided in this subchapter, the general rules of practice and procedure in chs. 750 to 758 and 801 to 847 shall apply to actions under this subchapter. Section 799.06 (2) shall apply to actions under this subchapter.

812.31(2) (2) Venue for earnings garnishment is prescribed by s. 801.50; the garnishee shall be deemed a defendant for purposes of that statute.

812.31(3) (3) An earnings garnishment action may not be commenced in a county other than the county where the judgment is entered unless a transcript of the judgment is entered in that county.

812.31(4) (4) Each pleading or other document in an earnings garnishment proceeding shall designate each party as creditor, debtor or garnishee.

812.31 History History: 1993 a. 80; 1995 a. 224.

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

812.32 812.32 Earnings garnishment generally. Earnings garnishment is an action to collect an unsatisfied civil judgment for money damages plus statutory interest and costs, from earnings payable by the garnishee to the debtor.

812.32 History History: 1993 a. 80.

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

812.32 Annotation How Do Creditors, Debtors and Overburdened Small Claims Courts Get Relief? 1993 Wisconsin Act 80. Fullin. Wis. Law. March 1994.

812.33 812.33 Garnishee fees.

812.33(1) (1) The creditor shall pay a $15 fee to the garnishee for each earnings garnishment or each stipulated extension of that earnings garnishment. This fee shall be included as a cost in the creditor’s claim in the earnings garnishment.

812.33(2) (2) In addition to the $15 garnishee fee under sub. (1), 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. This subsection does not apply to a garnishment under s. 812.42.

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

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

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.