812.41 Garnishee liability.

(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.

(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.

(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.

History: 1993 a. 80.

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

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.

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.

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).