49.195 Recovery of aid to families with dependent children, Wisconsin Works benefits, and overpayments of emergency assistance.

(1) If any parent at the time of receiving aid under s. 49.19 or a benefit under s. 49.148, 49.155 or 49.157 or at any time thereafter acquires property by gift, inheritance, sale of assets, court judgment or settlement of any damage claim, or by winning a lottery or prize, the county granting such aid, or the Wisconsin works agency granting such a benefit, may sue the parent on behalf of the department to recover the value of that portion of the aid or of the benefit which does not exceed the amount of the property so acquired. The value of the aid or benefit liable for recovery under this section may not include the value of work performed by a member of the family in a community work experience program under s. 46.215 (1) (o), 1991 stats., s. 46.22 (1) (b) 11., 1991 stats., or s. 49.50 (7j) (d), 1991 stats., or in a community work experience component under s. 49.193 (6), 1997 stats. During the life of the parent, the 10-year statute of limitations may be pleaded in defense against any suit for recovery under this section; and if such property is his or her homestead it shall be exempt from execution on the judgment of recovery until his or her death or sale of the property, whichever occurs first. Notwithstanding the foregoing restrictions and limitations, where the aid or benefit recipient is deceased a claim may be filed against any property in his or her estate and the statute of limitations specified in s. 859.02 shall be exclusively applicable. The court may refuse to render judgment or allow the claim in any case where a parent, spouse or child is dependent on the property for support, and the court in rendering judgment shall take into account the current family budget requirement as fixed by the U.S. department of labor for the community or as fixed by the authorities of the community in charge of public assistance. The records of aid or benefits paid kept by the county, by the department or by the Wisconsin works agency are prima facie evidence of the value of the aid or benefits furnished. Liability under this section shall extend to any parent or stepparent whose family receives aid under s. 49.19 or benefits under s. 49.148, 49.155 or 49.157 during the period that he or she is a member of the same household, but his or her liability is limited to such period. This section does not apply to medical and health assistance payments for which recovery is prohibited or restricted by federal law or regulation.

(2) Amounts may be recovered pursuant to this section for aid granted both prior to and after August 31, 1969; and any amounts so recovered shall be paid to the United States, this state and its political subdivisions in the proportion in which they contributed to the payment of the aid granted, in the same manner as amounts recovered for old-age assistance are paid.

(3) A county, tribal governing body, Wisconsin Works agency, or the department shall determine whether an overpayment has been made under s. 49.138, 49.148, 49.155, 49.157, or 49.19 and, if so, the amount of the overpayment. The county, tribal governing body, Wisconsin Works agency, or department shall provide notice of the overpayment to the liable person. The department shall give that person an opportunity for a review following the procedure specified under s. 49.152, if the person received the overpayment under s. 49.141 to 49.161, and for a hearing under ch. 227. Notwithstanding s. 49.96, the department shall promptly recover all overpayments made under s. 49.138, 49.148, 49.155, 49.157, or 49.19 that have not already been received under s. 49.138 (5), 49.161, or 49.19 (17) or received as a setoff under s. 71.93 and shall promulgate rules establishing policies and procedures to administer this subsection. The rules shall include notification procedures similar to those established for child support collections.

(3m)

(a)

1. If any person fails to pay to the department any amount determined under sub. (3), no review or appeal of that determination is pending and the time for requesting a review or taking an appeal has expired, the department may issue a warrant directed to the clerk of circuit court of any county.

2. The clerk of circuit court shall enter in the judgment and lien docket the name of the person mentioned in the warrant, the amount for which the warrant is issued and the date on which the clerk entered that information.

3. A warrant entered under subd. 2. shall be considered in all respects as a final judgment constituting a perfected lien upon the person's right, title and interest in all real and personal property located in the county in which the warrant is entered.

4. After issuing a warrant, the department may file an execution with the clerk of circuit court for filing with the sheriff of the county, commanding the sheriff to levy upon and sell sufficient real and personal property of the person to pay the amount stated in the warrant in the same manner as upon an execution against property issued upon the judgment of a court of record, and to return the warrant to the department and pay to it the money collected by virtue of the warrant within 90 days after receipt of the warrant. The execution may not command the sheriff to levy upon or sell any property that is exempt from execution under ss. 815.18 (3) and 815.20.

(b) The clerk of circuit court shall accept, file, and enter each warrant under par. (a) and each satisfaction, release, or withdrawal under par. (d), (e), (g), or (h) in the judgment and lien docket without prepayment of any fee, but the clerk of circuit court shall submit a statement of the proper fee semiannually to the department covering the periods from January 1 to June 30 and July 1 to December 31 unless a different billing period is agreed to between the clerk of circuit court and the department. The department shall pay the fees, but shall add the fees provided by s. 814.61 (5) for entering the warrants to the amount of the warrant and shall collect the fees from the person named in the warrant when satisfaction or release is presented for entry.

(c) If a warrant that is not satisfied in full is returned, the department may enforce the amount due as if the department had recovered judgment against the person named in the warrant for the same amount.

(d) When the amount set forth in a warrant and all costs due the department have been paid to it, the department shall issue a satisfaction of the warrant and file it with the clerk of circuit court. The clerk of circuit court shall immediately enter a satisfaction of the judgment on the judgment and lien docket. The department shall send a copy of the satisfaction to the person named in the warrant.

(e) If the department finds that the interests of the state will not be jeopardized, the department may issue a release of any warrant with respect to any real or personal property upon which the warrant is a lien or cloud upon title. Upon presentation to the clerk and payment of the fee for filing the release, the clerk shall enter the release of record. The release is conclusive that the lien or cloud upon the title of the property covered by the release is extinguished.

(f) Notwithstanding s. 49.96, at any time after the filing of a warrant, the department may commence and maintain a garnishee action as provided by ch. 812 or may use the remedy of attachment as provided by ch. 811 for actions to enforce a judgment. The place of trial of such an action may be either in Dane County or the county where the debtor resides and may not be changed from the county in which that action is commenced, except upon consent of the parties.

(g) If the department issues an erroneous warrant, the department shall issue a notice of withdrawal of the warrant to the clerk of circuit court for the county in which the warrant is filed. The clerk shall void the warrant and any resulting liens.

(h) If the department arranges a payment schedule with the debtor and the debtor complies with the payment schedule, the department may issue a notice of withdrawal of the warrant to the clerk of circuit court for the county in which the warrant is filed. If the department issues a notice of withdrawal of the warrant, the clerk shall void the warrant and the resulting liens.

(3n)

(a) In this subsection:

1. “Debt" means the amount of liability determined under sub. (3).

2. “Debtor" means an individual who is liable under sub. (3).

3. “Disposable earnings" means that part of the earnings of any debtor after the deduction from those earnings of any amounts required by law to be withheld, any life, health, dental or similar type of insurance premiums, union dues, any amount necessary to comply with a court order to contribute to the support of minor children, and any levy, wage assignment or garnishment executed prior to the date of a levy under this subsection.

4. “Federal minimum hourly wage" means that wage prescribed by 29 USC 206 (a) (1).

5. “Levy" means all powers of distraint and seizure.

6. “Property" includes all tangible and intangible personal property and rights to such property, including compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise, periodic payments received pursuant to a pension or retirement program, rents, proceeds of insurance and contract payments.

(b) If any debtor neglects or refuses to pay a debt after the department has made demand for payment, the department may collect that debt and the expenses of the levy by levy upon any property belonging to the debtor. Whenever the value of any property that has been levied upon under this section is not sufficient to satisfy the claim of the department, the department may levy upon any additional property of the person until the debt and expenses of the levy are fully paid.

(c) Any person in possession of or obligated with respect to property or rights to property that is subject to levy and upon which a levy has been made shall, upon demand of the department, surrender the property or rights or discharge the obligation to the department, except that part of the property or rights which is, at the time of the demand, subject to any prior attachment or execution under any judicial process.

(d)

1. Any debtor who fails or refuses to surrender any property or rights to property that is subject to levy, upon demand by the department, is subject to proceedings to enforce the amount of the levy.

2. Any 3rd party who fails to surrender any property or rights to property subject to levy, upon demand of the department, is subject to proceedings to enforce the levy. The 3rd party is not liable to the department under this subdivision for more than 25 percent of the debt. The department shall serve the levy as provided under par. (m) on any 3rd party who fails to surrender property under this subdivision. Proceedings may not be initiated by the department until 5 days after service of the demand.

3. When a 3rd party surrenders the property or rights to the property on demand of the department or discharges the obligation to the department for which the levy is made, the 3rd party is discharged from any obligation or liability to the debtor with respect to the property or rights to the property arising from the surrender or payment to the department.

(e)

1. If the department has levied upon property, any person, other than the debtor who is liable to pay the debt out of which the levy arose, who claims an interest in or lien on that property and claims that that property was wrongfully levied upon may bring a civil action against the state in the circuit court for Dane County. That action may be brought whether or not that property has been surrendered to the department. The court may grant only the relief under subd. 2.

2. In an action under subd. 1., if a levy would irreparably injure rights to property, the court may enjoin the enforcement of that levy. If the court determines that the property has been wrongfully levied upon, it may grant a judgment for the amount of money obtained by levy.

3. For purposes of an adjudication under this paragraph, the determination of the debt upon which the interest or lien of the department is based is conclusively presumed to be valid.

(f) The department shall determine its costs and expenses to be paid in all cases of levy.

(g)

1. The department shall apply all money obtained under this subsection first against the expenses of the proceedings and then against the liability in respect to which the levy was made and any other liability owed to the department by the debtor.

2. The department may refund or credit any amount left after the applications under subd. 1., upon submission of a claim for that amount and satisfactory proof of the claim, to the person entitled to that amount.

(h) The department may release the levy upon all or part of property levied upon to facilitate the collection of the liability or to grant relief from a wrongful levy, but that release does not prevent any later levy.

(j) If the department determines that property has been wrongfully levied upon, the department may return the property at any time, or may return an amount of money equal to the amount of money levied upon.

(k) Any person who removes, deposits or conceals or aids in removing, depositing or concealing any property upon which a levy is authorized under this subsection with intent to evade or defeat the assessment or collection of any debt is guilty of a Class H felony and shall be assessed the costs of prosecution.

(L) If no appeal or other proceeding for review permitted by law is pending and the time for taking an appeal or petitioning for review has expired, the department shall make a demand to the debtor for payment of the debt that is subject to levy and give notice that the department may pursue legal action for collection of the debt against the debtor. The department shall make the demand for payment and give the notice at least 10 days prior to the levy, personally or by any type of mail service that requires a signature of acceptance, at the address of the debtor as it appears on the records of the department. The demand for payment and notice shall include a statement of the amount of the debt, including interest and penalties, and the name of the debtor who is liable for the debt. The debtor's refusal or failure to accept or receive the notice does not prevent the department from making the levy. Notice prior to levy is not required for a subsequent levy on any debt of the same debtor within one year of the date of service of the original levy.

(m)

1. The department shall serve the levy upon the debtor and 3rd party by personal service or by any type of mail service that requires a signature of acceptance.

2. Personal service shall be made upon an individual, other than a minor or incapacitated person, by delivering a copy of the levy to the debtor or 3rd party personally; by leaving a copy of the levy at the debtor's dwelling or usual place of abode with some person of suitable age and discretion residing there; by leaving a copy of the levy at the business establishment with an officer or employee of the establishment; or by delivering a copy of the levy to an agent authorized by law to receive service of process.

3. The department representative who serves the levy shall certify service of process on the notice of levy form and the person served shall acknowledge receipt of the certification by signing and dating it. If service is made by mail, the return receipt is the certificate of service of the levy.

4. The debtor's or 3rd party's failure to accept or receive service of the levy does not invalidate the levy.

(n) Within 20 days after the service of the levy upon a 3rd party, the 3rd party shall file an answer with the department stating whether the 3rd party is in possession of or obligated with respect to property or rights to property of the debtor, including a description of the property or the rights to property and the nature and dollar amount of any such obligation.

(p) A levy is effective from the date on which the levy is first served on the 3rd party until the liability out of which the levy arose is satisfied or until the levy is released, whichever occurs first.

(q)

1. The debtor is entitled to an exemption from levy of the greater of the following:

a. A subsistence allowance of 75 percent of the debtor's disposable earnings then due and owing.

b. An amount equal to 30 times the federal minimum hourly wage for each full week of the debtor's pay period; or, in the case of earnings for a period other than a week, a subsistence allowance computed so that it is equivalent to that amount using a multiple of the federal minimum hourly wage prescribed by the department by rule.

2. The first $1,000 of an account in a depository institution is exempt from any levy to recover a benefit overpayment.

(r) No employer may discharge or otherwise discriminate with respect to the terms and conditions of employment against any employee by reason of the fact that his or her earnings have been subject to levy for any one levy or because of compliance with any provision of this subsection. Any person who violates this paragraph is guilty of a Class I felony.

(s) Any debtor who is subject to a levy proceeding made by the department has the right to appeal the levy proceeding under ch. 227. The appeal is limited to questions of prior payment of the debt that the department is proceeding against and mistaken identity of the debtor. The levy is not stayed pending an appeal in any case where property is secured through the levy.

(t) Any 3rd party is entitled to a levy fee of $5 for each levy in any case in which property is secured through the levy. If the 3rd party retains the fee, the 3rd party shall increase the levy amount by the amount of the fee and deduct the fee from the proceeds of the levy.

(3p) The availability of the remedies under subs. (3m) and (3n) does not abridge the right of the department to pursue other remedies.

(3r) The department may contract with or employ a collection agency or other person to enforce a repayment obligation of a person who is found liable under sub. (3) who is delinquent in making repayments.

(3s) The department shall specify by rule when requests for reviews, hearings and appeals under this section may be made and the process to be used for the reviews, hearings and appeals. In promulgating the rules, the department shall provide for a hearing or review after a warrant under sub. (3m) has been issued and before the warrant has been executed, before property is levied under sub. (3m) or (3n) and after levied property is seized and before it is sold. The department shall specify by rule the time limit for a request for review or hearing. The department shall also specify by rule a minimum amount that must be due before collection proceedings under this section may be commenced.

(4)

(a) Except as provided in par. (b), any county or governing body of a federally recognized American Indian tribe may retain 15 percent of benefits distributed under s. 49.19 that are recovered due to the efforts of an employee or officer of the county or tribe.

(b) This subsection does not apply to any of the following:

1. The recovery of benefits that were provided as a result of state, county, or tribal governing body error.

2. The recovery of benefits due to the efforts of an employee or officer of a county having a population of 750,000 or more under the supervision of the department.

History: 1977 c. 29; 1981 c. 93, 317; 1983 a. 27; 1985 a. 29; 1985 a. 332 s. 251 (1); 1987 a. 27, 307; 1989 a. 31, 96, 173; 1993 a. 16; 1995 a. 27, 289; 1997 a. 27; 1999 a. 9, 185; 2001 a. 109; 2005 a. 25; 2007 a. 20; 2009 a. 28; 2015 a. 55, 172.

The words “both prior to and" in sub. (2) constitute an unconstitutional enactment and are stricken from the statute. Estate of Peterson, 66 Wis. 2d 535, 225 N.W.2d 644 (1975).

Recovery may be had only from a parent who immediately received aid. Richland County Department of Social Services, v. McHone, 95 Wis. 2d 108, 288 N.W.2d 879 (Ct. App. 1980).

This section does not authorize recovery against a child with a guardianship account if the child never applied for, directly received or made representations to obtain aid. There may be common-law authority for a claim against a guardianship estate. Matter of Guardianship of Kordecki, 95 Wis. 2d 275, 290 N.W.2d 693 (1980).