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SMALL CLAIMS GUIDE

TABLE OF CONTENTS

I. INTRODUCTION

  • A. Is Small Claims Court Right For You? 3
  • B. Have You Been Sued In Small Claims Court? 3
  • C. Try To Settle First 3
  • D. Is A Lawyer Necessary? 4
  • E. Types Of Small Claims Cases 4

II. STARTING YOUR SUIT

  • A. Where To File Your Case 4
  • B. The Summons And Complaint 4
  • C. Filling In The Forms 5
  • D. Serving The Papers 5
  • E. Published Service 6

III. FIRST HEARING

  • A. The Return Date 6
  • B. Attending The First Hearing 6
  • C. Default Judgment 7

IV. THE TRIAL

  • A. Jury Trial vs. Court Trial 7
  • B. Preparing For Trial 8
  • C. Conduct Of Witnesses 9
  • D. Cross Examination 9
  • E. Stipulated Dismissal 9

V. POST-TRIAL CONSIDERATIONS

  • A. Reimbursement Of Costs 10
  • B. Financial Disclosures By Judgment Debtors 10
  • C. Docketing The Judgment 11
  • D. Appeals 11
  • E. Reopening Default Judgments 11

VI. GARNISHMENT

  • A. What Is Garnishment? 12
  • B. Garnishment of Accounts 12
  • C. Garnishment of Earnings 13

Appendix A Legal Assistance 15

Appendix B Fees 16

Appendix C Glossary Of Terms 17


I. INTRODUCTION

A. Is Small Claims Court Right For You?

Does someone owe you money? Has your landlord unjustifiably failed to return your security deposit? Did you order merchandise that the retailer has failed to deliver? Has a merchant failed to comply with the terms of a guarantee?

If so, you should consider the possibility of bringing a lawsuit in small claims court. You may not need a lawyer, and the rules are simpler than in most court proceedings. Any individual and any corporation doing business in Wisconsin can sue or be sued in small claims court.

B. Have You Been Sued in Small Claims Court?

Perhaps you are reading this because you received a summons informing you that someone is suing you in small claims court. That person is called the "plaintiff" on the summons, and you are the defendant.

The summons tells you when and where you should go if you want to contest the case. It also tells you the type of case it is and what the plaintiff claims you owe him or her. If the plaintiff has an attorney, the summons tells you the attorney's name and address.

Attached to the summons is a "complaint" telling why the plaintiff thinks you owe him or her money, your property should be repossessed, or you should be evicted, as the case may be. Is everything stated in the complaint true? If not, and you do not agree that the plaintiff should get what he claims in the last paragraph of the complaint, you may wish to appear and contest the case. Even if the complaint is true, you may still want to contest the case if you think there are other facts the court should know about. If there is any reason why the plaintiff should not get what he claims, you may wish to contest the case.

If you decide not to contest the case, it is not necessary to go to court. If you do not appear in court, the plaintiff will probably obtain a judgment against you. If you do want to contest the case, make sure you show up in court at the time shown by the summons.

In some counties, you can contest the case without going to court until later. The summons will tell you if that is allowed in the county where you are being sued. Usually, you must send the court an "answer" to the complaint, showing the plaintiff's name and your name, as they appear on the summons, and the case number. Your answer should state all the things in the complaint which you deny are true, and all the things the judge should know before deciding whether the plaintiff should get what he or she is asking for. After your answer is received, the court will schedule the case for a hearing and notify you of its time and place.

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C. Try To Settle First

To avoid the time and expense of going to court, try to settle the matter first. Contact the other party, discuss the situation, and try to solve the problem by an agreement you can both accept. Even after your small claims suit is filed, you may still engage in settlement negotiations with the opposing party. Don't be reluctant to compromise; even in large civil lawsuits, more than 90% are settled prior to trial. If you are unsure of your legal rights, you may wish to contact an attorney for advice, even though you do not intend to pay him or her to represent you at trial. For a minimal fee, a lawyer may be able to advise you whether you have a valid claim or defense, and of the types of evidence you will need to prove it. Sometimes asking your attorney to mail a letter to the other party requesting settlement will be effective in avoiding the need to go to court.

D. Is A Lawyer Necessary?

In small claims court, you can handle your personal or business legal matters without an attorney. The court may require the appointment of a guardian if you are under 18 years of age. However, any party may hire a lawyer to represent him or her in small claims court. If the other party has a lawyer, your chances of winning may be better if you have one, too.

If you cannot afford an attorney, there are organizations listed in Appendix A that may be able to assist you. You might also read Chapter 799 of the Wisconsin Statutes, available in most libraries, which outlines the small claims court procedure.

E. Types Of Small Claims Cases

Small claims court may be used only for certain types of cases. These are as follows:

* Lawsuits (such as breach of contract, property damage or personal injury) when the amount claimed is $5,000 or less;

* All evictions, regardless of the amount of rent claimed;

* Actions for the return of earnest money tendered pursuant to a contract for purchase of real property, regardless of the amount claimed;

* Replevins (repossessions of property) if the value of the property does not exceed $5,000 or if the property is consumer goods leased or purchased on credit from a dealer;

* Actions for the confirmation, vacation, modification or correction of an arbitration award where arbitration was in settlement of a controversy arising out of a transaction for the purchase of real property, regardless of the amount of that award;

* Garnishments (to enforce judgments from funds owed to the debtor) when the amount owed is $5,000 or less.

* Property Taxes (suits by municipalities to recover delinquent personal property taxes).

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II. STARTING YOUR SUIT

A. Where To File Your Case

For most claims, the proper county to file suit is:

(1) Where the claim arose;

(2) Where the property which is the subject of the claim, or part of it, is located; or

(3) Where the defendant resides or does substantial business.

A consumer transaction is a purchase or lease of goods, property or services, or loan of money or credit, for personal, family, household or agricultural purposes. If your claim arises out of a consumer transaction, the suit may be filed in the county:

(1) Where the consumer resides;

(2) Where the consumer made the purchase; or

(3) If it was a credit transaction, where the collateral (property securing the transaction) is located.

B. The Summons And Complaint

If you have decided to use small claims court, go to the courthouse of the proper county and tell the clerk that you wish to file a small claims suit. The clerk has the forms you will need (summons, complaint and perhaps an information sheet). The summons tells the defendant (the party you are suing) when to be in court to answer your claim, while the complaint states what you are suing for and why. (See Appendix D for examples).

The clerks of small claims court cannot give you legal advice, or answer questions requiring a knowledge of the law. The clerks must refer you to your own common sense or suggest you see an attorney if you have legal questions.

Unless you are indigent, you will have to pay the clerk a fee to file the summons and complaint. This fee is set by state law and is listed in Appendix B as the "Small Claims Filing Fee." In some counties, the fee is paid when you pick up your forms. This and certain other fees may be charged against the other party if you win your case.

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C. Filling In The Forms

As the person starting the lawsuit, you are the plaintiff. Print or type your name and address in the space marked PLAINTIFF. Next, type or print the name and address of the person or company you are suing in the space marked DEFENDANT. It is important that the name and address of the party you are suing is correct. If the papers can't be delivered to the defendant, you might have to start over and pay additional fees.

The next part of the summons and complaint you fill in is the PLAINTIFF'S DEMAND. Check one or more of the four boxes labeled MONEY, EVICTION, RETURN OF PROPERTY, and CONFIRMATION, VACATION, MODIFICATION OR CORRECTION OF ARBITRATION AWARD. On the line next to MONEY, insert the amount you request as damages. Interest may normally be charged at 5% from the date the amount was due until the date the court awards judgment and 12% thereafter until the amount is paid, unless there is a contract which specifically states a different rate of interest. In estimating your damages from an automobile accident, remember that the legal measure of damages is not always the same as the cost of repair. Your legal damages are determined by taking the value of your vehicle before the collision and subtracting its value immediately after.

In the next section of the plaintiff's demand, labeled "Brief statement of dates and facts," simply write down in your own words what happened. Explain why you are suing the defendant. For example, if you are suing to make the defendant pay you money because of an auto accident, write the facts surrounding the accident, and why it was the defendant's fault. If the defendant was violating a traffic law, or not exercising reasonable care, write that he or she caused the accident "negligently." If there is not enough room in this space, check the box and add as many additional pages as you need.

After you have completed your brief statement of dates and facts, sign the complaint and fill in the date.

After the summons and complaint is served you will return it to the clerk, your case will be filed and given a number which you should always use in asking about it. If you ask the clerk for information about your case without giving the correct case number, you may be required to pay a search fee (listed in Appendix B) to get the information you want.

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D. Serving The Papers

Once the summons and complaint have been filled out, they must be "served on" (delivered to) the defendant. The defendant must be "personally" served, if you are suing a corporation and want to be sure that the papers are delivered to the correct person, you should have the sheriff or a private process server serve the papers. You cannot serve the papers yourself.

Give the papers to the sheriff of the county in which the defendant lives, or a process server, and pay the fee. The fee for sheriff service is listed in Appendix B.

The sheriff or process server will go to the defendant's address as stated on the summons to serve the papers. The sheriff or process server then signs a certificate telling when the summons and complaint were served and either sends the originals back to the court or to you. If returned to you, file the papers with the clerk of courts at least 48 hours before your court date.

If the sheriff or process server can't find the defendant, he or she may call you for information as to where the defendant works or other places he or she might be found. If the defendant can't be found after several tries, the sheriff or process server can serve a family member over 14 years old at the defendant's address. If that can't be done at least eight days (excluding weekends and holidays) before the initial court date, your return date must be changed.

Although the sheriff is usually the best person to serve your papers personally, they can be served by any adult who isn't a party to the lawsuit. You cannot serve your own papers. Service must be made at least eight days prior to the initial appearance (five days for an eviction), excluding weekends and holidays. The person who serves the papers must:

(1) Sign the summons and write on it the time, place and manner of service, along with the name of the person served;

(2) Complete an "affidavit of service," a form which can be purchased at a legal stationery store;

(3) Give a copy to the plaintiff, and file the original affidavit, summons and complaint with the court immediately after service.

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E. Published Service

If, after several tries, it is impossible to make personal service, or if the mailed papers are returned unopened to the clerk, service may be made by publishing a notice one time in a local newspaper and by mailing the summons and complaint to the defendant's last-known address. The notice should be published in the legal notice section of any newspaper likely to give notice to the person affected. Publication of this notice must be at least eight days prior to the initial appearance date. Appendix D shows a form notice which may be somewhat less expensive to publish than the actual summons itself, but either may be published.

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III. FIRST HEARING

A. The Return Date

When you filed your case, it was scheduled for hearing at a certain date and hour (sometimes known as the "return date"). In most counties, plaintiff and defendant must both appear in court then and the defendant will be asked to answer the complaint. In some counties, neither party is required to appear. Instead, a defendant wishing to contest the case must answer the complaint in writing before the return date. In these counties, if the defendant answers on time, the plaintiff will be sent a copy of the defendant's answer and notice of the time of the first court hearing.

B. Attending The First Hearing

In those counties which require both parties to appear on the return date, you will go before a judge, court commissioner or clerk. Although the summons states that it is not necessary to bring witnesses at this time, it may help to bring along any evidence, including papers and documents, that may prove your claim. For example, if the suit involves an auto accident, you could obtain a copy of the police accident report from the law enforcement agency that investigated it. It is a good idea to arrive early. If you are not in court on time, you may lose the case and have to start over. In counties with many courtrooms, you may need to check a calendar of that day's court proceedings to determine in which courtroom your case will be called.

The clerk will call out the name of the cases one by one as they are listed on the calendar. When you hear your case called, go to the front of the courtroom and identify yourself. If the other party is present, he or she will also approach at the same time. The judge, court commissioner or clerk will ask the defendant if he or she admits to the plaintiff's claim. If the defendant admits that he or she owes the money and does not have any other defense, the plaintiff is entitled to judgment. If the defendant does not admit the claim, the defendant will be given 2 weeks to file an answer in writing with the court and with the plaintiff.

The judge, court commissioner or clerk will check the legal papers and decide whether any key facts are in dispute. The judge or commissioner might discuss possible settlement with you. If both parties agree to a settlement in front of the judge or commissioner, it becomes a binding agreement.

If both parties appear but cannot come to an agreement, the judge or commissioner can hold a hearing and make a decision immediately, if there is time available and both parties agree. Often, however, the matter is set for hearing at a future time. Except in evictions, a party who appears at the return date will be allowed to have the hearing postponed at least seven days upon request. In eviction cases, a delay is not permitted unless both parties agree or good cause is shown.

If both parties appear and cannot reach agreement in an eviction, replevin or garnishment case, the matter will be scheduled for a hearing before a judge as soon as possible.

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C. Default Judgment

If the defendant fails to come to court on the return date (or to answer on time in courts which allow that instead), the judge or court commissioner will often enter a "default judgment" against the defendant. For some types of cases, the complaint or plaintiff's sworn testimony at the return date hearing is enough proof for such a judgment. In some counties, for some kinds of cases (especially damage and injury claims such as auto accidents) you might be asked to return to court and offer evidence to prove your claim at a later time. The clerk will help schedule that for your convenience.

In some counties, the clerk will require you to sign an affidavit that to the best of your knowledge the defendant is not in the military service before filing the default judgment. If you know the defendant is presently in the military, your action may not be able to go to judgment.

If the plaintiff fails to appear timely on the return date (in those counties where required to do so), the lawsuit will usually be dismissed by the court.

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IV. THE TRIAL

A. Jury Trial vs. Court Trial

A trial "to the court" is a trial before a judge. There is no extra fee for a court trial.

Any party may file a written demand for a jury trial if a demand for a trial is filed. Any party requesting a jury trial must pay fees listed in Appendix B as "Jury Demand Fees."

If the party demanding the trial does not demand a jury trial, any other party may file such a demand with the court (mailing copies to all other parties) within 15 days from the date of mailing of the demand for trial. If no party timely demands a trial by jury, the right to trial by jury is waived.

Demanding a jury trial brings your case under the formal rules of evidence and procedure. Unless you have an attorney, demanding a jury trial for a small claims case is usually unwise.

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B. Preparing For Trial

After a demand for trial has been made, the court will send the parties notice of the date, time, courtroom and judge for the trial. Note the date, for this will be your only notice. On the date of trial be sure to bring any necessary witnesses and documents to court.

Friends and relatives will probably appear on your behalf voluntarily, but businesspeople, police officers and others who have no interest in your matter usually won't. If you need their testimony to prove a key fact which the other party disputes, you can force them to come to court by the use of a "subpoena." A subpoena is a court order compelling a witness to be present at the time a case is tried. Subpoenas can be issued for persons in Wisconsin. Subpoena forms can be obtained without charge from the clerk's office. You will need an original and one copy of the subpoena for each person you want to come to court.

You may also use a subpoena to get documents, books, records or other evidence in someone else's possession brought to court. A court order requiring a witness to bring those documents or records is called a "subpoena duces tecum." It is filled out exactly as a regular subpoena except that you must also describe what items you want the person to bring with him or her.

After obtaining the subpoena forms, you will have to fill them out. Insert your case number, the name and address of the person to be subpoenaed, the date of the trial, the time and courtroom number, the judge who will preside, your name and that of the defendant. The names and addresses of the parties of the case should also be filled in on the reverse side of the subpoena.

After the subpoena is filled out in duplicate, have it signed by the clerk, and take it to the sheriff's office for service on the witness in the same manner as the summons and complaint.

Although a subpoena can be served at any time prior to the trial date, you should take it to the sheriff's office at least one week before the trial. You must pay the sheriff's service fee, witness fee, and witness's mileage fee. The sheriff will pay the witness and mileage fees to the witness when the subpoena is served. If these fees are not paid at the time the subpoena is served, the witness does not have to come to court. If the sheriff is able to serve the subpoena, proof of that will automatically be filed with the clerk. If the sheriff is unable to serve it, he will return it to you. Sometimes you can find out whether your subpoena has been served by calling the sheriff's office. Keep the receipt you get when paying the sheriff's fee for serving the subpoena; it contains the "transaction number," which you might need if the papers are misplaced.

The judge may conduct a pretrial conference and encourage you to settle before the trial begins. Settle if that is in your best interest.

If no settlement occurs, the trial will begin. The judge will decide the case only on the evidence and arguments presented at this trial, which will be taken down by a court reporter. You and all your witnesses should be in court promptly at the time assigned by the judge, and you should have any proof you feel is necessary to win your case.

The plaintiff is almost always asked to present his or her case first. After swearing or affirming to testify truthfully, tell your story, giving clear and concise details to support your claim. Keep to the key facts and try not to digress into side issues unless a question requires it. If you have written evidence or documents to support your claim, show them to the judge and the defendant, explain what they are, and from where you obtained them. Bringing several copies of the documents to hand out to the other parties is helpful but not required. If any physical evidence (maps, invoices, letters, canceled checks, etc.) is to be presented, it should be given to the clerk to be marked as an exhibit and given a number. Before completing your case, be sure to request the court to receive your exhibits into evidence.

At the conclusion of the plaintiff's testimony, the judge may question him or her. After that, the defendant has the right to cross-examine the plaintiff. When that is completed, the plaintiff steps down from the witness stand and calls any other witnesses he or she has. After each witness is sworn, ask questions clarifying the facts on which your claim is based. The defendant has the right to cross-examine the plaintiff's witnesses. The judge may also question them.

The defendant follows the plaintiff and presents his or her case in the same way. The defendant may call witnesses to support his or her denials of the plaintiff's claims and whatever additional defenses he or she may have. The plaintiff may question the defendant and the defendant's witnesses.

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C. Conduct Of Witnesses

Witnesses should speak clearly and loudly enough for all to hear. To speed up the hearing, the witnesses may tell their stories in their own words without the usual question-and-answer procedure of regular court testimony. However, testimony should be concise and to the point, not rambling. If necessary, a witness may use a blackboard or chart to demonstrate or illustrate a point. Try not to speak when another is speaking so that all comments may be heard by the court reporter.

D. Cross Examination

When a party or witness has completed testifying, the opposing party may cross-examine him or her. Cross-examination is not limited to things the witness said in direct testimony. The only limitation on cross-examination is that the questions asked be relevant. The cross examiner must not attempt to put words in the mouth of the witness or make statements at this point, only ask questions. Cross-examination is not an opportunity for debate. The four basic purposes of cross-examination are:

(1) To clear up what the witness meant;

(2) To find out whether the witness is biased;

(3) To test the witness's memory or recall of events; and

(4) To test the accuracy of the witness's perceptions (that is, how well he or she saw or heard the events he or she described).

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E. Stipulated Dismissal

If the judge decides the case in favor of the plaintiff, he or she will be awarded a "judgment," i.e., a formal document signed by the judge and "entered" (filed) in court, stating that the defendant owes the plaintiff money, must return property, or vacate the premises. After the judgment is filed in court, there are various ways the plaintiff can enforce it against the defendant.

Some defendants are more likely to abide by the court's decision if the plaintiff agrees not to have the judgment entered. Often that is because the judgment may make it harder for the defendant to obtain a loan to pay the plaintiff and other creditors. In this situation, the parties sometimes agree to a "stipulated dismissal." If the parties agree that the defendant will pay the amount determined by the court by a certain date (or in certain installment payments), they can ask the judge for a stipulated (agreed) dismissal. The judge will dismiss the lawsuit without entering a judgment against the defendant. However, if the defendant fails to pay as required by the agreement, the plaintiff can file a sworn statement in the court and have the stipulated dismissal withdrawn and a judgment entered for the amount the defendant still owes without any more hearings. Stipulated dismissals are allowed by s. 799.24(3) of the Wisconsin Statutes. You need not enter into such an agreement. If you are the plaintiff, do so only if you think the defendant will abide by it.

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V. POST-TRIAL CONSIDERATIONS

A. Reimbursement Of Costs

If you win your suit, ask the court to include court costs and fees you incurred in the lawsuit as part of the judgment. Not all of your expenses can be passed on to the losing party. Lost wages, parking and transportation expenses incurred in coming to court are some of the expenses which the court cannot order as costs. However, the court will require reimbursement of fees paid to file the action, to have the summons and complaint mailed or personally served, to subpoena witnesses, to demand a jury, to compensate the garnishee in garnishment cases, and, if an attorney appeared for you in court, an attorney fee based on the amount of damages the court awarded, as follows:

Amount of Judgment Attorney Fee

$1,000 - $5,000 $100

$ 500 - $ 999 $ 50

$ 200 - $ 499 $ 25

Under $ 200 $ 15

If it is not practical to determine the value of the court's decision in your favor, the court may order the defendant to pay you an attorney fee between $15 and $100. If your judgment was awarded by default (because the defendant failed to appear), the attorney fee is one-half of that stated above. Usually, your lawyer will charge you more than the attorney fee the defendant must pay you.

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B. Financial Disclosures By Judgment Debtors

Even though the court decides in your favor, the losing party still might not pay you the money due or return the property as ordered by the judgment. The court will not force the defendant to do so unless you take further legal action to get what is owed you. This is called "executing" the judgment. In order to do so, you need to know how much money or property the defendant has or earns. For this reason, if the judgment requires the defendant to pay you money damages, the court will also order the judgment debtor to send you a statement disclosing his name, address, employers and their addresses, real property he or she owns, financial institutions in which he or she has funds on deposit, and other information required by form schedules which the court will give or send to the debtor. See Form SC-506, Order for Financial Disclosure and Financial Disclosure of Assets, Appendix D.

The debtor need not file this information in court; he or she must mail it directly to the successful party within 15 days after the judgment is filed in court, unless within that time the judgment is paid.

The debtor must comply with this order and disclose this information even though he or she decides to appeal the court's decision. However, if there is an appeal, the debtor can ask the court for an order delaying the time when this information must be sent to the creditor. If the judgment debtor hasn't paid the debt or sent the creditor this information by the 15th day after the judgment was filed in court, the creditor can start proceedings to have the debtor held in contempt of court, or you may commence garnishment proceedings immediately if you already know where the debtor is employed or does his/her banking (see Sec. VI-Garnishment). Ask the small claims clerk for Form SC-507, "Petition and Order for Hearing on Contempt", available free of charge. After you fill it out and file it, the court will order the other party to appear in court to explain why he or she failed to send the proper financial disclosures. Once the party is in court, the court will usually require the party to complete the financial disclosure form at that time. If the debtor fails to appear at the order-to-show-cause hearing, the court will issue a warrant for his or her arrest for being in contempt of court. The Sheriff's Dept. may require that you supply them with the date of birth of the debtor before they can actually serve the warrant. The defendant can be placed in jail or ordered to pay a fine for each day he or she fails to make the required financial disclosures to you.

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C. Docketing The Judgment

If the small claims court has issued a judgment in your favor, you should have that judgment "docketed." For a fee paid to the clerk (see "Docketing Fee" in Appendix B), the clerk will place the judgment on an official list, open to public inspection, telling interested parties such as creditors that the judgment exists. After a judgment is docketed, it becomes a lien on any real estate owned by the debtor in that county for ten years. If the debtor tries to sell the property, the purchaser will usually require that the lien be removed (by paying the plaintiff the judgment) before taking title.

A transcript of the judgment can be obtained from the clerk and docketed in any other county where the defendant owns real estate, creating a lien on it, too.

Of course, if the debtor doesn't own real property (or the plaintiff doesn't want to wait until he or she tries to sell it), there are other legal methods to enforce the judgment, such as garnishment, described in Section VI of this booklet.

D. Appeals

Any party dissatisfied with the judgment of the small claims court may appeal it to the court of appeals. Since there are no special "small claims" rules for appeals, it is almost impossible to appeal successfully without a lawyer's help. Therefore, this booklet will not discuss the steps necessary to bring an appeal. The appeal fee is listed in Appendix B.

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E. Reopening Default Judgment

When the defendant fails to appear in court timely on either the initial return date or the date of any further proceedings, the court will probably enter a default judgment. If there was a good reason for the defendant's failure to appear in court, he or she may file a motion to reopen the judgment. The small claims court may reopen a default judgment if the motion to reopen is filed within six months after the default judgment was entered. If the county where the suit was filed was not proper under the rules outlined in this booklet, a motion to reopen the judgment may be filed up to one year after the judgment was filed. But don't "sleep on your rights"; the longer you wait, the less likely the court is to grant you another hearing.

However, the court will not reopen a judgment unless it finds that "good cause" exists for that. Your motion must state why you think there is good cause to reopen the judgment. Maybe you missed your court date because you were in the hospital. To reopen the judgment, you must file a notice of motion with the court and serve a copy on the other party in any of the ways allowed for service of the summons and complaint. The notice outlines your reasons, or "good cause" for having the judgment reopened. Contact the clerk to get a date and time for hearing the motion. The motion must be received by the other party at least five days, not including Saturdays, Sundays or holidays, before the day on which the motion is scheduled for hearing.

A default judgment might be reopened even more than six months after the judgment was filed, but you should see an attorney to find out if your grounds for reopening fit Section 806.07 of the Wisconsin Statutes.

If the court grants your motion and reopens the judgment, you may have to pay court costs to the other party. You should ask the judge not to award costs if you had a good reason for not being in court at the appointed time.

If the plaintiff misses a court date and the case is dismissed, he or she may also file a motion to reopen. However, since there is a chance that court costs may be awarded to the defendant, it might be better to start your small claims lawsuit again. See form SC-511, Petition to Answer or to Reopen Small Claims Judgment and Order, Appendix D.

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VI. GARNISHMENT

A. What Is Garnishment?

When the court enters a judgment for money damages, whoever must pay the money is considered a "judgment debtor" and whoever is owed the money is considered a "judgment creditor." To save space, this section of the pamphlet will refer to them simply as debtor and creditor. Just remember that garnishment cannot be used to enforce a debt before a court has rendered judgment on it.

If the debtor doesn't pay the judgment voluntarily, there are several ways in which the creditor can use the court system to collect it. See, for example, "docketing the judgment" in Section V, C. of this pamphlet. Another example is garnishment, in which the court orders someone who owes money to the debtor to pay it to the creditor instead. That person, called the "garnishee," is often the debtor's employer, or a bank or other financial institution where the debtor maintains an account.

If the creditor doesn't know where the debtor works or maintains accounts, he or she can find out through the financial disclosures described in Section V, B of this pamphlet. Once this information is known, the creditor can start a new lawsuit called a garnishment, against both the debtor and garnishee. The process of garnishing bank or other accounts is similar to that used to obtain the small claims judgment, while the process of garnishing earnings is different. Both are described below.

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B. Garnishment Of Accounts

By law, the first $1,000 on deposit in any one or more accounts is exempt from garnishment. Furthermore, any money in an account which is derived from government benefits such as Social Security, Aid to Families with Dependent Children (AFDC), Supplemental Security Income (SSI), veterans benefits, Unemployment Compensation, or relief funded under public assistance is also exempt from garnishment. The garnishment of an account attaches only money on deposit at the time the garnishee receives the garnishment papers. Any money the debtor deposits later will not be attached. So, garnishment will not result in any payments to the creditor unless the papers are served on the financial institution at a time when the debtor has more than $1,000 in non-exempt funds on deposit.

When the amount of the judgment plus interest and costs is $5,000 or less, the garnishment of accounts is handled very similarly to small claims. The creditor obtains a garnishment summons and complaint (SC-503) upon paying to the clerk the garnishment filing fee listed in Appendix B. After filling in the blanks on the summons and complaint, the creditor serves them on both the debtor and the garnishee, using one of the methods described in Section II, D of this pamphlet. The sheriff or process server should serve the garnishee before the debtor, or the debtor might withdraw the funds. However, the garnishment will fail unless the debtor is served within 10 days after the garnishee. The creditor must also pay a garnishee fee (listed in Appendix B) which the process server passes on to the garnishee, or the garnishee is not required to answer the complaint.

The summons in an account garnishment, like that in other small claims, sets a return date when the case will be called in court. At or prior to that time, the garnishee must file in court and serve on the creditor and debtor an answer, stating whether the garnishee holds funds owed to the debtor (see CV-416). The answer may also include any defenses such as exemptions or procedural defects. Failure of the garnishee to answer may result in liability for the entire judgment debt. The debtor may also file an answer asserting exemptions or other defenses to the garnishment, but the debtor is not required to do so.

If the garnishee answers that money is being withheld and no defense is raised, the creditor files with the court and mails to the other parties a motion for a court order directing payment of the withheld funds. If any answer claims defenses, exemptions, or procedural defects, the creditor must appear in court on the return date. The matter will either be settled at that time, or a hearing will be scheduled like that described in sections III, A and B of this pamphlet.

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C. Garnishment Of Earnings

A new law for the garnishment of earnings took effect on April 1, 1994. Under this law, a creditor can attach some of the earnings of the debtor for approximately 3 months after the papers are served on the garnishee employer. If the debtor is an employee of state or local government, the garnishment stays in effect until the entire judgment debt is paid.

The creditor begins an earnings garnishment by filing a notice (CV-421) with the court clerk and paying the garnishment filing fee listed in Appendix B. The clerk then gives the creditor two copies of the earnings garnishment (CV-422), one to serve on the debtor and one on the garnishee. The copy served on the garnishee is accompanied by the garnishee fee (Appendix B). The copy served on the debtor is accompanied by two other forms, the exemption notice (CV-423) and the debtor's answer (CV-424). Both copies must be served within 60 days after the notice is filed, and the debtor must be served not more than seven "business days," i.e., excluding weekends and holidays, after the garnishee and at least three business days before the first payday affected. Service may be made in any manner described in Section II, D of this pamphlet, or by first class mail or certified mail, return receipt requested. Or, the creditor can personally deliver the papers to the garnishee (not the debtor) if the garnishee signs a receipt admitting service.

The garnishment served on the garnishee is a court order directing that 20% of the debtor's aftertax earnings be withheld from the debtor's pay for all payperiods beginning within 13 weeks after the garnishee receives the papers. This happens automatically, without further hearing or order of the court, with three exeptions:

(1) The debtor's earnings are already being garnished by a different creditor. In this case, the garnishee tells the creditor, keeps the papers and puts the garnishment into effect when the first garnishment ends (when the 13 weeks run out or the first judgment debt is fully paid, whichever comes first).

(2) The debtor's earnings are assigned by court order for child or spousal support. In this case, the garnishee must withhold and pay the creditor only the difference between the amount required by the support order and 25% of the debtor's aftertax earnings. If the support order equals or exceeds 25% of the debtor's aftertax earnings, the creditor is paid nothing.

(3) The debtor fills in the answer form and delivers or mails it to the garnishee. In most cases, the debtor's answer will stop the garnishment because the debtor will claim that his or her earnings are completely exempt. However, the answer can also be used to correct the garnishee's failure to consider court-ordered support under (2), above, or arithmetic errors. The debtor can file an answer (or a new answer) at any time before or during the time the garnishment is in effect. An answer prevents payments to the creditor if the garnishee receives it before paying creditor. The garnishee must wait at least five business days after each payday (but no more than 10) before paying the creditor.

The exemption notice served on the debtor with the garnishment helps the debtor determine whether to mail or deliver an answer to the garnishee. It informs the debtor that his or her earnings are exempt from garnishment if:

(1) The debtor's household income falls below the federal poverty level (CV-427), or the garnishment would cause that to happen (a worksheet, CV-426, is provided to help the debtor calculate whether that is the case).

(2) The debtor receives, or within 6 months has received, AFDC, relief funded under public assistance, medical assistance, supplemental security income, food stamps, relief funded under section 59.07 (154) or veteran's benefits.

(3) At least 25% of the debtor's aftertax earnings are assigned by court order for support.

If the debtor mails or delivers an answer to the garnishee, the garnishee must send a copy of it to the creditor by the end of the third business day after receiving the answer. The creditor may demand a court hearing to challenge the debtor's answer (CV-425). If the court orders that the garnishment proceed, the date the court order is served on the garnishee is substituted for the date of original service in calculating which payperiods are affected by the garnishment. The court can order costs and attorney fees if it finds that the debtor's answer, or the creditor's challenge, was asserted in bad faith. Court hearings can also be sought by any party to force other parties to comply with the earnings garnishment law, or by the debtor to seek relief from the garnishment if the exemptions do not permit the debtor and dependents to acquire "the necessities of life."

The debtor and creditor may agree in writing to extend the garnishment for successive 13-week periods, avoiding the need for additional court filing fees and costs for service of papers. The garnishee is bound by any extension agreement delivered or mailed before the end of the last payperiod affected by the original garnishment (or prior extension). An additional garnishee fee must be paid with each extension agreement, however. Also, an extension is void and the fee must be returned if another creditor attempting to garnish the debtor's earnings serves the papers on the garnishee before the extension begins.

Unless otherwise provided in a labor union contract, garnishees cannot impose fees on debtors or take adverse actions against them because their earnings are subject to garnishment. Regardless of any such contract, employees cannot be discharged on account of garnishment for judgment arising out of consumer transactions, as defined in Section II, A of this pamphlet.

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APPENDIX A

LEGAL ASSISTANCE

STATE BAR LAWYER HOTLINE 1-800-362-9082

Madison 608-257-4666 Milwaukee 414-274-6768

LOW INCOME LEGAL SERVICES

(1) LEGAL ACTION OF WISCONSIN, INC.

a. Milwaukee County - 230 West Wells Street, Milwaukee, Wisconsin 53203, 414-278-7722

b. Columbia, Dane, Dodge, Green, Jefferson and Rock Counties - 31 South Mills Street, P.O. Box 9686, Madison, Wisconsin 53715, 608-256-3304 or 1-800-362-3904

c. Kenosha, Racine and Walworth Counties - 5630 Sixth Avenue, Kenosha, Wisconsin 53140, 414-654-0114 or 1-800-242-5840

(2) LEGAL SERVICES OF NORTHEASTERN WISCONSIN, INC.

a. Brown, Calumet, Door, Kewaunee and Outagamie Counties - 417 Pine Street, Green Bay, Wisconsin 54301, 414-432-4645

b. Adams, Fond du Lac, Green Lake, Marquette, Waushara, Wausau and Winnebago Counties - 404 North Main Street, Suite 140, Oshkosh, Wisconsin 54901, 414-233-6521 or 1-800-236-1128

c. Manitowoc, Ozaukee, Sheboygan and Washington Counties - 901 Sheboygan St., Sheboygan, Wisconsin 53081, 414-452-2077

(3) WESTERN WISCONSIN LEGAL SERVICES, INC.

a. Buffalo, Jackson, Juneau, La Crosse, Monroe, Trempealeau and Vernon Counties - 318 Main Street, P.O. Box 2617, La Crosse, Wisconsin 54601, 608-785-2809 or 1-800-873-10927

b. Crawford, Grant, Iowa, Lafayette and Sauk Counties - 202 West Main Street, P.O. Box 101, Dodgeville, Wisconsin 53533, 608-935-2741 or 1-800-873-092

(4) WISCONSIN JUDICARE, INC.

Ashland, Barron, Bayfield, Burnett, Chippewa, Clark, Douglas, Dunn, Eau Claire, Florence, Forest, Iron, Langlade, Lincoln, Marathon, Marinette, Menominee, Oconto, Oneida, Pepin, Pierce, Polk, Portage, Price, Rusk, St. Croix, Sawyer, Shawano, Taylor, Vilas, Washburn, Waupaca and Wood Counties - 300 Third Street, Suite 210, P.O. Box 6100, Wausau, Wisconsin 54402-6100, 715-842-1681 or 1-800-472-1638 (Fax 715-848-1885)

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APPENDIX B

TABLE OF SELECTED COURT FEES

OCTOBER 14, 1997

(fees subject to periodic change)

Wis. Stats.

Fee Reference Amount

Appeal Fee 809.25(2) $150.00

Docketing Fee 814.61(5) $ 5.00

Garnishee Fee (Non-Earnings) 812.06 $ 3.00

Garnishee Fee (Earnings) 812.33 $ 15.00

812.42(2)(c)*$ 15.00 public employer

*Plus $3 per payment

after 1st payment

Garnishment Filing Fee 814.62(1);

814.634 and $127.00 claim exceeds $5,000.

814.635 57.00 claim equal/less $5,000.

Jury Demand Fees 814.62(3)(e) $ 53.00

plus 814.61(4) $ 36.00 for jury

Mailed Service Fee 814.62(4) $ 2.00 per defendant

plus cost of certified mail (if used)

Search Fee 814.61 (11) $ 5.00

Sheriff's Service Fees 814.70(1) $ 18.00 per defendant

plus $ 9.00 ea addl defendant

(in Milwaukee County, mileage is always $2.00)

Small Claims Filing Fee 814.62(3);

814.634 and $ 59.00

814.635

Witness Fees 814.67(1) $ 16.00 per day

plus $ .20 per mile

The Court will waive these fees for persons unable to pay them. To request a waiver, you must complete and sign an affidavit which is available from the clerk (CV-410). Such a request constitutes consent of the affiant and counsel that if judgment is in favor of affiant, the court may order opposing party to pay unpaid fees and costs and the balance to the affiant. If the affiant is a prisoner and judgment is in favor of the opposing party, such a request constitutes consent for the court to order the prison to deduct the unpaid fees and costs from the amount in the prisoner's account at the time the judgment was rendered.

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APPENDIX C

GLOSSARY

ACTION - A lawsuit.

ADJOURN - To delay a hearing until a future time.

ADVERSE PARTY - Party on the other side of the lawsuit.

AFFIDAVIT OF NON-MILITARY SERVICE - Statement that, to the best of plaintiff's knowledge, the defendant is not now in the military.

ANSWER - A statement by the defendant in response to the plaintiff's complaint.

APPEAL - A request that a higher court review and change the final decision in a case.

CALENDAR - A schedule of cases to be heard in court.

CAPTION - The heading of a court paper, showing the court and county, names of parties and case number.

CLERK - An administrative officer of the court.

COMPLAINT - The court paper that states why the plaintiff is suing and what plaintiff wants the court to order.

CONTRACT - An agreement.

COURT COMMISSIONER - An attorney authorized to conduct hearings and initial proceedings.

CREDITOR - A person who is owed money.

DAMAGES - The amount of money requested in a lawsuit to compensate the plaintiff for injuries to person or property or for the defendant's failure to perform a contract.

DEBTOR - A person who owes money.

DEFAULT - Failure to answer a complaint or appear for a hearing.

DEFENDANT - The person who is sued.

DEFENSE - A reason why a claim in a complaint is not valid.

DISMISSAL - A court order terminating a case because the plaintiff has failed to appear in court or state or prove a valid claim.

DOCKET - An official list of court judgments.

EVICTION - An action by a landlord to remove a tenant from the landlord's property.

EXECUTION - A legal procedure in which the sheriff seizes a debtor's property to pay a judgment.

EXEMPTION - A law allowing a debtor to keep some property free from the claims of creditors.

EXHIBIT - A paper or thing shown to a court during a hearing and used as evidence.

FEE - A charge fixed by the law for the service of public officers.

GARNISHEE - In garnishments, the party who owes money to the debtor and is ordered to pay it to the creditor instead.

GARNISHMENT - A proceeding after judgment authorizing the plaintiff to be paid from the debtor's wages or bank accounts.

JUDGMENT - Final decision by the court.

NOTARY PUBLIC - An attorney or other official authorized to certify the signing of sworn documents.

PARTY - The plaintiff or defendant. In garnishments, the creditor, the debtor or the garnishee.

PLAINTIFF - The party who begins the lawsuit.

PRETRIAL CONFERENCE - A meeting between the parties and the judge or court commissioner to investigate settlement or narrow the disputed issues.

PRO SE - Latin meaning "for oneself," i.e., without the aid of a lawyer.

REPLEVIN - A lawsuit seeking return of property.

RETURN DATE - The initial appearance in court.

SERVICE - The delivery of the complaint, summons or other papers filed by one party to another party.

STIPULATED DISMISSAL - A court order dismissing the suit upon agreement of the parties. If the agreement is not kept, the dismissal may be vacated and a judgment entered.

SUBPOENA - A court order that a witness appear in court.

SUMMONS - A court order that the defendant answer the complaint or appear in court at a stated time.

TORT - A claim based on an injury caused by the defendant to the plaintiff or plaintiff's property.

VENUE - The county or counties in which a lawsuit may be filed and tried.

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