Generally, executions should be used when there is money or property in the hands of a judgment debtor that can be seized to satisfy a judgment. Execution is a method by which a judgment creditor can enforce a judgment by requiring the payment of money or delivery of property. Since the procedure is known as an Execution in Aid of Judgment, there must be a judgment before one can proceed with an execution.
A judgment must be from a court of record and must be perfected by docketing said judgment, or it must be a judgment from another court docketed in the county where the property is situated. No execution can be issued until the judgment is perfected and docketed. An execution is a phenomenon created by statute and was unknown in common law. Therefore, an execution can only be properly accomplished by following the strict statutory procedures principally found under chapter 815 of the Wisconsin Statutes. (Sec. 815.05)
There are two types of executions that can be levied; an execution on real estate and an execution on personal property.
Executing on Real Estate.
Real estate is procedurally simple to levy against in an execution action. The execution should contain a description of the property to be levied upon. The execution is then given to the sheriff of the county where the defendant resides or where the real estate is situated. In most counties in Wisconsin, the execution is recorded with the Register of Deeds to show that there is an encumbrance upon the real estate in question. When an execution is levied on real estate, an execution sale is then held by the sheriff. The sheriff must post and publish a Notice of Sale advertising when the property will be sold. This must be done for six successive weeks and must be posted in three public places. After notice, the sheriff will sell the real estate at an auction usually on the courthouse steps or in a room in the courthouse. Upon completion of the sale, a certificate of sale is filed with the court and the Register of Deeds.
The proceeds are then turned over to the judgment creditor, but not until the debtor has had an opportunity to redeem the property for the sale price plus interest. In this regard, the debtor has one (1) year from the date of the sale to redeem the property. If the property is not redeemed by the debtor, the sheriff issues a deed to the purchaser and the proceeds of the sale are turned over to the creditor who initiated the sale.
Executing upon real estate requires a lot of investigation. One needs to order a title report to determine how many other encumbrances there may be on the property. Also, under Wisconsin Statutes, there is a homestead exemption of $40,000 from the proceeds of a sale which go directly to the debtor after a first mortgage is paid. Mathematically, one has to calculate if the sale of the real estate by a sheriff, which is considered a forced sale, will net enough money to pay off a first mortgage and any homestead rights that the debtor may claim and still have sufficient funds to either partially or fully satisfy the creditor's judgment.
Executing on Personal Property.
Personal property is considered non-real estate property such as an automobile, household furnishings, artwork and, in the case of a business, cash in a cash register or the stock and fixtures of the business. When an execution is issued to the sheriff for personal property, there must be a description of the specific property to be seized. A bond of indemnification must be secured by the creditor for twice the value of the judgment before a sheriff will seize any personal property. Personal property is tagged for purposes of identification when an execution on personal property is issued. If it appears that the personal property seized, or any part thereof, is exempt from execution, the sheriff on his own, or upon the request of the debtor, may have the property appraised by two disinterested parties and address themselves as to the value of any exemptions that could be enforced in favor of the debtor.
Most personal property may have certain exemptions, and therefore, it is uncertain as to whether an execution can be successful. Most executions of this nature are issued against business assets by attaching cash in a cash register, inventory, fixtures and stock and merchandise. However, even in this instance, a secured creditor, such as a bank or other lending institution, might have a security interest in the assets of the business, which may take precedent over an execution. Therefore, it is important that a UCC filing check be made on any business before executing on any of their assets to determine if there is a security interest in the name of a secured creditor. This area of executions always carries with it the primary risk of executing on the wrong property or of executing upon exempt property. For this reason, the sheriff can require that sufficient security be provided by the creditor requesting the execution to indemnify the sheriff from any liability that might accrue from the execution.
Exemptions of Debtor's Property from Execution.
Traditionally, such things as the family bible, library books, household furnishings and personal belongings were exempt. Under our Wisconsin statutes, most of these items are exempt up to a dollar amount. Therefore, it is highly unlikely that executing upon personal effects or household goods would be beneficial. Executing upon a vehicle is also questionable because there is a $1,200 exemption on the equity of a vehicle. If the vehicle is financed, the financing institution has the priority in obtaining their money. In most instances, the balance due on the loan of the vehicle is greater than the value of the vehicle.
As mentioned above, the homestead is exempt up to $40,000 in Wisconsin. The following is a list of other exemptions in Wisconsin:
- Burial lots
- Business and farm property not to exceed $7,500
- Child support or maintenance payments.
- Household goods, including jewelry and other personal items not to exceed $5,000.
- Cash value of unmatured life insurance not to exceed $4,000.
- Motor vehicles not to exceed $1,200 in aggregate value, plus any unused exemption for household goods.
- Payments on certain life insurance claims, wrongful death claims and personal injury claims not to exceed $25,000.
- Retirement benefits including assets held in an IRA.
- Checking and savings accounts not to exceed $1,000.
- Military pensions.