As a litigator, you know the satisfaction of obtaining a money judgment for your client. But you are probably also aware that collecting on that judgment can be more difficult than getting the judgment itself. Few debtors just willingly write a check. They make you work for it.
One of the most effective ways to begin the collection process is by having the debtor appear at a supplemental examination, which is a form of discovery for obtaining information about the debtor’s employment, assets, debts, and ability to pay.
Under Wis. Stat. section 816.03(1)(b), a supplemental court commissioner can order any judgment debtor to appear in front of the commissioner and “answer concerning the judgment debtor’s property at a time and place specified in the order.” Unfortunately, the statutes say little as to how the process is carried out. Given that lack of guidance, court commissioners and creditors’ attorneys often have crafted their own procedures, leaving attorneys who are unfamiliar with supplemental examinations to try to figure them out on their own. Here are some suggestions, based on my experience representing creditors and conducting supplemental examinations as a court commissioner.
Setting up a Supplemental Examination
Here are suggested practices for creditors’ attorneys to set up a supplemental examination.
1) Locate a list of supplemental court commissioners on the website of your county’s clerk of courts. Supplemental court commissioners only have jurisdiction for judgments entered in their county. If the debtor lives in a different county than the one where the judgment was obtained, you should transfer the judgment to the county where the debtor resides and pursue the examination there.
2) Contact one of the commissioners on the list to see if they are available. When I act as a commissioner, I typically schedule the examination about six weeks out, to provide sufficient time for the attorney to draft the order and affidavit, provide it to me, have me sign and return it, and have it served.
3) Give the commissioner the names of the creditor and the debtor so the commissioner can conduct a conflicts check.
4) If the names, date, and time are confirmed, prepare an order for the supplemental exam, and an affidavit of the attorney attesting to the judgment and the need for the examination. The commissioner can either indicate in the body of the order which materials the debtor should provide or attach a list. Please see the accompanying sample forms.
When the debtor is an entity, the petition should name the entity. The entity then produces the individual who has knowledge of the matter for which they will be questioned.
5) Provide four copies of the affidavit and order: the original for the commissioner to retain, two for the process server, and one copy for the creditor’s attorney.
6) Send the affidavit(s) and proposed order(s) to the commissioner, along with a check for $15 for each order. Wis. Stat. § 816.035(2). Under Wis. Stat. section 814.68(2), the $15 fee is the only fee the commissioner may collect. There is a $1.00 fee for signing certain documents under Wis. Stat. section 814.68(1), but section 814.68(2) makes clear that the commissioner cannot collect both.
7) Include a stamped, self-addressed return envelope. When you get the orders and affidavits back, send them out for service.
8) After the order and affidavit are served, send the “return” (that is, affidavit of service) to the commissioner.
Court Commissioner’s Duties
Under Wis. Stat. section 816.035(1), the commissioner is required to file the return with the clerk of courts. The commissioner should put the affidavit of service on top, with the order and affidavit of the creditor’s attorney underneath, and then scan and e-file them as a single document by going into e-filing and selecting “Non-Party Filing.”
If the order is not served, the commissioner must return the $15 fee. Although the statutes do not directly address what to do with the order when it is not served, the clerk of courts asks that only the orders and affidavits that have been served be filed, so while the creditor’s attorney can send an affidavit of nonservice to the commissioner, the commissioner should not file it, as the clerk of courts considers the affidavit of nonservice a nullity.
Supplemental Examination Day of Hearing
At a hearing, once all parties are present, I typically introduce myself first and then explain to the debtor what a supplemental examination is about. I explain that the creditor has a judgment against the debtor and that after I swear them in, the creditor’s attorney will be asking the debtor about their finances and talk to them about the judgment. For in-person examinations, the commissioner will usually leave the room, but be available if needed. If by phone or Zoom, I usually mute my microphone and turn off my camera but listen in on low volume, again in case I am needed.
If the debtor has not produced the documents required under the order, the attorney will often ask that the examination be continued or adjourned to another date and time. If the documents are provided to the creditor’s attorney before that date and the follow-up exam is not needed, the attorney should let the commissioner know.
An individual creditor can request a supplemental examination without the assistance of an attorney, but doing so is rare. Entities must be represented by a lawyer in any cases other than small claims.
If the examination is to be conducted by telephone, the order should have the number of whomever can most easily bring the other party into the conference call. Typically, orders that I prepare instruct the debtor to call my telephone number, and if the debtor does, I call the attorney.
So far, attorneys have been the ones to arrange Zoom appearances, but this isn’t a requirement. Most examinations seem to take 15-30 minutes, but on rare occasions, the attorney will have the examination recorded by a court reporter, and they can take substantially longer.
Debtor’s Failure to Appear
If the debtor fails to appear, the creditor’s attorney can go back to the circuit court to seek a contempt order. Some counties will allow the attorney to file an affidavit of nonappearance, and some require the commissioner to sign an affidavit. The circuit court will expunge the contempt order if the debtor appears at a rescheduled supplemental exam.
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What was your funniest or oddest experience in a legal context?
We were in the midst of a several-day trial – a business dispute – and the defendant’s attorney was going down a long, rather unique line of questioning of our client about the terms of a contract. The attorney asked the witness if he agreed that time only moves forward. The attorney then asked the judge to take judicial notice that time only moves in a forward direction. The judge, somewhat exasperated and holding his head in his hands, deadpanned, “Right now, I will take judicial notice that time seems to be standing still.” It was very difficult to keep a straight face.
Teresa K. Kobelt, Bartelt Grob S.C., Middleton.
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» Cite this article: 94 Wis. Law. 12-15 (November 2021).