1/13/2016. Marquette Volunteer Legal Clinics Brown Bag CLE Series presents: SMALL CLAIMS. Online Viewers

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1 Marquette Volunteer Legal Clinics Brown Bag CLE Series presents: SMALL CLAIMS Filing and Collecting on Money Judgments January 14, 2016 Presenter: Attorney Michael A. Sosnay, Darnieder & Sosnay Online Viewers Problems streaming? Try using another browser. If slides appear small, they are also available as a handout on the website. Submit questions to the presenter by clicking on the speech bubble icon at the bottom of the screen. An attendance code will be read in two parts during the presentation. CLE credit is only available for live viewing. To be eligible for CLE credit, report both parts of the attendance code into the online attendance form immediately following the presentation. I. Introduction Chapter 799, Wisconsin Statutes: Procedures in Small Claims Actions Check local rules because procedure varies from county to county Milwaukee County: uit%20court%20rules/milwaukee%20county%20circuit%20court%2 0Rules.pdf Waukesha County: Forms: &FormNumber=&beg_date=&end_date=&StatuteCite=&Category= 38 1

2 II. Types of cases subject to small claims (Wis. Stat (1)) Eviction actions Return of earnest money Forfeitures Replevins Arbitration Third-party complaints, personal injury claims and tort claims where the amount claimed is $5,000 or less. Other civil actions where the amount claimed is $10,000 or less. III. Filing action Filing fee: Milwaukee County: $98.00 All other counties: $94.50 Fee may be waived if an Affidavit of Indigency is filed and approved by the Chief Judge and/or Clerk of Circuit Court. Affidavit can be found online or in the Clerk s office. Summons and Complaint Form will vary depending on county and type of action or relief sought Specific form for consumer replevins (Wis. Stat (1g)) Milwaukee County requires a bilingual Summons and Complaint Information required for Summons and Complaint: Defendant s name and address (last known) Location of place to appear (should be able to obtain from the clerk s office) Relief plaintiff is seeking (i.e., amount sought, eviction, specific property) Brief statement of dates and facts You can either fill in this information in the space provided on the form, or draft an actual complaint and attach to the Summons If an eviction action and you are also seeking money damages, you must also state that claim on the form or in the Complaint Must be signed by the plaintiff or plaintiff s attorney and notarized. 2

3 Attach any documents to the Complaint that support your case Amount of documentation should be within reason I.e., copy of contract, copy of invoice, itemization of damages, etc. Filing the Summons and Complaint Filing the original paperwork in the clerk s office Additional copies of Summons and Complaint will need to be filestamped so the defendant(s) can be served. It is recommended that two additional copies be filed for each defendant, and one additional filestamped copy for the plaintiff. Court date: The clerk will give the filer a court date and time. Prior to filing the original and copies, the date and time must be entered on all Summons. The clerk will file and retain the original Summons and Complaint and return the file-stamped authenticated copies to the filer for service. Service on the defendants Who may serve (Wis. Stat (1)): An authenticated copy of the Summons may be served by any adult resident of the state where service is made who is not a party to the action. Service shall be made with reasonable diligence. If a friend or unrelated party is serving the defendant, that person will need to sign an affidavit of service indicating when, where and how the defendant was served. Suggested process servers: Sheriff s Department in the county where the defendant resides or does business. May be more expensive but most reliable. In Milwaukee County, the authenticated copies and prepayment can be dropped off on the first floor of the Safety Building at the service window. Include a self-addressed stamped envelope so the proof of service can be returned prior to the court date. Private process server: May be less expensive and not always as reliable. The plaintiff will need to bring the original affidavit of service to the return date. Some counties, not including Milwaukee or Waukesha, may allow service by mail. There will likely be a mailing fee for the clerk to mail the Summons and Complaint and personal service may be required if the mail is returned undeliverable. Check local rules for clarification. Substitute service (Wis. Stat (b)): If with reasonable diligence the defendant cannot be served, then by leaving a copy of the Summons at the defendant s usual place of abode: In the presence of some competent member of the family at least 14 years of age, who shall be informed of the contents thereof; or In the presence of a competent adult, currently residing in the above of the defendant, who shall be informed of the contents of the summons Service by publication (Wis. Stat (c)): If with reasonable diligence the defendant cannot be served personally or by substitution, service may be made by publication of the summons as a class 1 notice, under Ch. 985, and by mailing to the defendant s address. Mailing must occur at or immediately prior to the first publication date. Publishers in Milwaukee County: Daily Reporter and Milwaukee Journal Sentinel. 3

4 IV. Return Date What to bring: Proof of service: If personal or substituted service, bring original Affidavit of Service If service by publication, bring Affidavit of Non-Service, copy of the publication notice (what was sent to the newspaper to be published, proof of publication (received by the newspaper), and an Affidavit of Mailing showing a copy was mailed to the defendant s last known address on the same date or immediately prior to the first publication date. Affidavit of Non-Military Service: Cannot take a judgment against an individual that is on active-duty. The affidavit must verify that you have either confirmed the defendant is not on active duty, or that you do not believe the defendant to be on active duty. The clerk should have the form for you to fill out. What not to bring: Witnesses Documentation or evidence proving your case The return date is intended to identify if there is a dispute and schedule the matter accordingly. The return date is not the time for the court to hear the case or make a decision. IV. Return Date If the defendant does not appear, request that default judgment be entered in the amount set forth in the Complaint. The clerk will add in the statutory court costs and attorney fees. Docket judgment: In order for the judgment to attach as a lien against any property the defendant owns in the county the case was filed, you must docket the judgment. The docketing fee is $5.00. You will receive a copy of the Notice of Entry of Judgment in the mail. If the defendant does appear, the court will determine if there is a dispute. If there is no dispute, the court should enter judgment. If there is a dispute, the court will likely schedule the matter for an evidentiary hearing or trial. If it appears there is a dispute, try to determine specifically what the other party is disputing so you can be best prepared for evidentiary hearing. V. Evidentiary Hearing What to bring: All witnesses If you do not think one of your witnesses will appear voluntarily, you may subpoena that witness. Subpoena forms are available online and will need to be signed by a court official and served on the witness prior to the hearing. This is not necessary if you are certain your witness will appear. All documentation to substantiate your claim Copy of any contract between the parties Itemization of damages Copies of any receipts for repairs Any quotes or invoices for repairs Any other documentation to help support your claim 4

5 V. Evidentiary Hearing (cont.) Be prepared to proceed Have a brief opening statement prepared outlining the nature of the dispute, why you are entitled to recovery and what you are seeking. Organize your documents in the order you want to present them to the Court. Know what information you want to get out each witness Be prepared to ask the opposing party and his/her witnesses questions, but be cognizant of not using this time to testify yourself. You can make a closing statement but it is not necessary. V. Evidentiary Hearing (cont.) Rules of Evidence (2): The proceedings shall not be governed by the common law or statutory rules of evidence except those relating to privileges under Ch. 905 or to admissibility under Wis. Stat All other evidence having reasonable probative value shall be admitted. An essential finding of fact may not be based solely on declarant s oral hearsay statement unless it would be admissible under the rules of evidence. Summary: Rules of evidence are relaxed. However, an essential fact may not be determined entirely on oral hearsay unless it would otherwise be admitted. Court s decision following evidentiary hearing/trial Court will likely issue a decision immediately following the hearing. If case was heard by a court commissioner, either party has 10 days from the date of an oral decision to demand a de novo trial before the judge. (Wis. Stat (2). Regardless of the outcome at an evidentiary hearing before the court commissioner, either party has the right to a do over before the judge. VI. Judgment How to collect Three most common ways to collect on judgment: Voluntary payment agreement between the parties Require to be paid in certified funds, i.e., cashier s check or money order Always give receipts and document any payment received Wage garnishment Non-earnings garnishment 5

6 VI. Judgment How to collect (cont.) Wage Garnishment (Wis. Stats ) Need to know the debtor s employer May consider asking the debtor at the hearing or trial Order for Financial Disclosure Statement (See Wis. Stat (1)) In Milwaukee, judgment creditor needs to get form signed by court commissioner and mail to debtor. In every other county, the clerk mails out the Order for Financial Disclosure Statement with the Notice of Entry of Judgment. The debtor has 15 days to return the form to the judgment creditor. Filing fee: Filing fee depends on balance of judgment. If the judgment is $10,000 or less: Milwaukee County: $96.00 Every other county: $92.50 If the judgment is more than $10,000: Milwaukee County: $ Every other county: $ In addition to the filing fee, the judgment creditor must provide the garnishee (employer) a $15 fee. VI. Judgment How to collect (cont.) Wage Garnishment (Wis. Stats )(cont.) Forms are available online or from the clerk. Garnishment is valid for a period of 13 weeks and needs to be renewed by the judgment creditor if the judgment has not been paid off. If the debtor is a public employee, the garnishment will continue until the judgment is paid in full. Amount garnished: The employer should withhold and forward to the creditor 20% of the debtor s disposable earnings. Disposable earnings: Remaining earnings after deduction of Social Security taxes and federal and state income taxes Amount may be reduced by court order Considerations: Debtor may be exempt if he/she has received needs-based public assistance within the last six months. Garnishment may be reduced or the debtor may be exempt entirely if income is already being assigned due to court order. Difficult to garnish debtor s wages if he/she is self-employed. If employer does not answer the garnishment, a motion to hold the garnishee liable for the debt may be filed. (See Wis. Stat ). If the debtor files an answer claiming to be exempt, the garnishment stops until the judgment creditor requests a hearing to determine exempt status (See Wis ) VI. Judgment How to collect (cont.) Non-Earnings Garnishment (Wis. Stat ) Forms available online or in clerk s office. Filing fees are the same as earnings garnishment, except that the judgment creditor is only required to pay a $3.00 fee to the garnishee. The garnishee is most commonly a financial institution where the debtor may have an account. If the debtor is an individual, the first $5,000 in any depository account is exempt from garnishment (Wis. Stat (k)). Other exemptions include any disability in the account and some retirement benefits. Either the financial institution or the debtor may raise these exemptions. (See Wis. Stat for all exemptions). Garnishee will be required to file an answer indicating whether it is indebted to the debtor. The garnishee is required to secure those funds until further order by the Court. If there are funds available subject to garnishment, a court order will be required in order to obtain those funds from the garnishee. 6

7 Questions? 7