812.38 Judicial hearing.

(1)

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

(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.

(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.

(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.

(3)

(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.

(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.

(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.

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

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