Wis. Bankruptcy Law

Question 1

What is a “sum certain”

Answer 1

You need to ask for specific amount of damages to get a judgment

Question 2

Two ways for default judgment

Answer 2

(1) party does not show up (fails to plead/defend), or
(2) Penalty when party refuses to comply with a court order

Question 3

Requirement for default judgment against the debtor

Answer 3

personal service

Question 4

how long does a creditor have to perfect a judgment?

Answer 4

30 days

Question 5

what happens if a judgment is not perfected?

Answer 5

forfeit costs

Question 6

motion to vacate a default judgment. - § 806.07

Answer 6

Almost always under (a) mistake, inadvertence, surprise, or excusable neglect

debtors who were unrepresented at the time of default have a very good shot to vacate

see Webb v. Erickson for factors

Question 7

Judgment Time Limits

Answer 7

5 years - judgment dormancy

10 years - judgment liens expire

20 years - judgment expires

Question 8

Three types of execution

Answer 8

(1) Against property of the debtor (Taking debtor’s car)

(2) Against the debtor’s person (Going to get spouse who doesn’t show up to divorce court)

(3) For the delivery of property, or such delivery with damages for withholding the same (Garnishment)

Question 9

How to stop dormancy

Answer 9

Execute on the judgment by:
- providing the writ of execution to the sheriff, or
- holding a supplementary hearing

Question 10

A lien arises:

Answer 10

(1) On personal property the moment it is seized by the sheriff

(2) On real property if the judgment is entered into the judgment lien docket (for additional fee)

Question 11

Execution after death of the debtor

Answer 11

815.14 - After expiration of one year from the death of a judgment debtor, execution may be issued against property upon which the judgment was a lien at the time of death

Question 12

After the Sheriff serves the writ on the debtor, how long does the sheriff have to determine what property might satisfy the judgment?

Answer 12

60 days, but may be longer is property needs to be sold

Question 13

WI is a “seizure state”

Answer 13

Once the sheriff tags property, it is in possession of the court and not subject to any other levies

if property that is “plainly” exempt is tagged, conversion

Question 14

A “satisfaction”

Answer 14

filed with the court after execution if judgment was not paid or partially paid

Question 15

Attachment

Answer 15

A provisional remedy to prevent D from making themselves judgment proof

In order to receive, P must submit an affidavit that sets forth specific factual allegations showing that
(1) D is indebted to P, and
(2) P has good reason to believe it may be difficult to collect after judgment has been entered

Question 16

Pre-Judgment Attachment due process concerns, and how to deal with them

Answer 16

SCOTUS in Siniadach v. Family Fin. Corp found that WI prejudgment garnishment violated due process because D was not given
- (1) sufficient notice or
- (2) an opportunity to be heard prior to the taking of D’s property.

Thus, WI provides D the opportunity to have a hearing to vacate or modify any writ of attachment
- Burden is on P
- Must show there is a proper basis for attachment under Wis Stat 811.03

Question 17

How to get a writ of replevin

Answer 17

(1) affidavit that sets forth specific factual allegations showing that P is entitled to the property

(2) notice (summons and complaint to D)

(3) trial

Question 18

Consumer and commercial repossession are treated differently

Answer 18

Consumer
- Merchant must send a demand letter by mail that gives notice
- Must also notify that the consumer may demand in writing, no later than 15 days after the merchant has given notice, that the merchant proceed in court
- If property is located inside a building or other enclosure, sheriff may make a demand for it. If not met, merchant can apply for a warrant upon a sufficient showing of probable cause that the property is inside. Then sheriff may enter.

Commercial
- No letter required
- Secured creditor may take possession with or without judicial process, so long as they proceed without breach of the peace.

Question 19

What happens to property when a writ of replevin is granted prior to final judgment?

Answer 19

Sheriff gives property to P, who takes possession until final judgment
- P wins, P keeps
- D wins
- request return, or
- Repayment of the value of the property plus damages for taking and withholding the property

Question 20

two types of garnishable properties (non-wage garnishment)

Answer 20

(1) debt owed to the debtor from a third party

(2) property owned by the debtor but in possession of a third party

Question 21

3 parties to a garnishment

Answer 21

(1) The creditor
(2) The debtor, and
(3) the garnishee (the one with the debtor’s property)

Question 22

(T/F) Unlike wage garnishment, non-wage garnishment is not limited by poverty guidelines or receipt of public assistance

Answer 22

True

Question 23

can you garnish social security?

Answer 23

No

Question 24

four common types of non-wage garnishment

Answer 24

(1) Bank account
(2) Rent
(3) Self employment or contract income
(4) Property in possession of a third party

Question 25

What is special about garnishment of personal bank accounts?

Answer 25

first $5,000 is exempt also, statutory exception in WI for ALL bank accounts: Can't garnish bank account or safety deposit box

Question 26

How do you get around the statutory exception for garnishing bank accounts?

Answer 26

The way around it is getting a writ of execution served upon the debtor, the sheriff then accompanies the debtor to empty the account or safety deposit box

Question 27

When do you need to refile garnishment of rent?

Answer 27

You don't need to refile. Rent garnishment will be continuous until the debt is paid or the lease expires.

Question 28

One time "catch all" garnishment, so timing is critical

Answer 28

the self-employment or contract income garnishment requires the garnishment action to be served on the garnishee when the monies are due but have yet to be paid to the debtor

Question 29

When is a garnishment action brought?

Answer 29

Usually brought after obtaining a judgment, but may be brought after the summons and complaint in contract or tort damages cases

Question 30

Steps to bringing a non-wage garnishment action

Answer 30

(1) Garnishee must be served with summons and complaint then, (2) Within 10 days, the principal Debtor must be served (D's employer can be served in lieu of personal service), (3) Garnishee then has 20 days to respond and file an answer that identifies - whether the garnishee is indebted to D, and - whether garnishee holds any interest in personal or real property that belongs to D

Question 31

How can a garnishment order be served on a debtor's employer in lieu of personal service?

Answer 31

(1) after failed service attempt, file the summons and return of service from the sheriff with the clerk P must then show (2) D's present employer (3) cause of action exists (4) reasonable effort has been made to serve D personally and prior to judgment, (5) affidavit from D's employer stating that D received the summons.

Question 32

(T/F) At the moment of service, the garnishee is liable to P for any of D's property in the garnishee's possession

Answer 32

True, this is show in the Unifund case. This is to prevent property from "going missing" as garnishees may try to protect debtor property

Question 33

Garnishment for married individuals

Answer 33

If individual debt: D's property and D's half of any marital property If marital debt: D's property and all marital property

Question 34

In WI, what types of property are garnishable?

Answer 34

WI does not limit garnishable property WI, 812.19(7): judgment may be given for "anything owing."

Question 35

How is the garnishable amount determined?

Answer 35

Unifund: A court may order a garnishee to pay a creditor an amount that it can reasonably infer was, at the time of service, (1) in the garnishee's possession or control, AND (2) belonged to the debtor or in which the debtor had an interest

Question 36

What differentiates wage garnishment from non-wage?

Answer 36

Debtor's employer sends earnings directly to the creditor Earnings = wages, salary, commission, and periodic payments from a pension or retirement program

Question 37

How does service work for wage garnishment?

Answer 37

(1) After judgment is entered, file notice with the clerk and receive two copies of earnings garnishment form (CV-422) after purchasing garnishment forms (2) First copy served upon garnishee within 60 days of filing notice (3) Second copy served upon the debtor within 7 business days after service on the garnishee and at least 3 business days before the payday of the first pay period affected by the garnishment