When Do I Need a Writ of Replevin to Pick up Personal Property?

B&BTake a moment for “Bits & Bytes,” as Attorney Deanne Koll explains when a lender would need to obtain a Writ of Replevin to take possession of a debtor’s collateral.

Disclaimer: This video is designed to be educational and informative, but it is not legal advice. Collection law is constantly evolving and subject to change. Each situation is unique, and each case should be addressed to fit the unique situation.

Replevin actions are often filed by secured creditors seeking to take possession of collateral securing loans. A common example is where a lender initiates a replevin action to gain possession of a skidsteer it took as collateral for a loan, following default on that loan.

The replevin action is a request to the court for a judgment against the debtor so that the lender may take possession of (in our example) the skidsteer.

Sometimes, even after the lender obtains the judgment of replevin, the debtor will not voluntarily surrender the collateral. In those circumstances, it may be necessary for the lender to request a Writ of Replevin from the court.

A Writ is an order signed by the court directing the sheriff to assist the lender to repossess the collateral.

A Writ of Replevin must be used if the debtor is uncooperative in returning personal property. A lender may not, without the Writ (and the sheriff), enter the debtor’s property and remove personal property. The Writ gives the sheriff this right.

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February Municipal Law Alert Available

The February 2015 edition of the Municipal Law Alert is now available online. View the latest articles by clicking here or clicking the titles below. This month’s articles discuss grievance procedures for municipalities and the ethics on abstaining on a matter before a municipal board.

Archives of the Municipal Law Alert, including the ability to key word search, are also available.

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Grievance Procedures

No matter how harmoniously a municipality may operate, the reality is there will always be unexpected bumps in the road. At times, these bumps are the result of an employee not meeting expectations, or just not fitting in with the rest of the team. Accordingly, it is important to know the procedures municipalities must follow when handling difficulties with employees, and the potential grievances of those employees.

Does anyone remember Act 10? One of the provisions of Act 10 was that municipalities must provide either a civil service or grievance system to address the concerns and complaints of employees regarding termination, discipline, or workplace safety infractions. To comply with the law, the grievance procedure must: (1) contain a written document specifying the process an employee and the municipality must follow, (2) provide a hearing before an impartial officer, and (3) create an appeal process in which the highest level of appeal is the governing body of the local governmental unit.

Some municipalities have attempted to limit the situations where a grievance procedure may be utilized by the employee by narrowly defining the term “termination” in their ordinances. But early court decisions appear to fall in favor of a broad definition of termination.

If your municipality does not have a written grievance procedure, or has questions regarding the sufficiency of its grievance system given more recent case law, you should contact your municipal attorney for guidance.

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The Ethics of Abstention

We all remember our parents’ golden rule for social occasions, “If you don’t have anything nice to say, don’t saying anything at all.” When serving as a member of a municipal board, there are times when local officials are ethically required to say nothing at all. In other words, the official must abstain from discussion, deliberation, and voting on a matter before the board.

When must a local official abstain?

Wisconsin’s basic ethical mandate for local public officials is that they may not use their public position or office to obtain financial gain or anything of substantial value for the private benefit of themselves, their immediate family, or an organization with which they are associated. While seemingly straight forward, like many things legal, the devil is in the details.

What does it mean to obtain something of “substantial value”? Anything of substantial value can mean money, property, favors, services, or other items that have more than an inconsequential or token value. One way to judge the value is by thinking what the object, service, favor, or item would cost in an arm’s length transaction, rather than what the cost is to the donor. Has or will the official receive a great deal because of their place on the board or potential vote? To paraphrase Wisconsin Towns Association Attorney Lee Turonie, a good rule of thumb is, if you would want it, then you can’t have it. And if you would receive a benefit from a vote you might take as an elected official, you should abstain.

Another point of possible ambiguity is when does an official’s association with another organization require them to abstain? Associated organizations can be charities, sports teams, social clubs, or even your place of employment. However, “associated” has a higher bar than just mere involvement. Officials must abstain in matters involving an organization where the official is a leader or director of the group. For instance, if the official is the president of the local women’s club, she must abstain from a vote on whether the club may use the town hall. Alternatively, if the official is just a member of the women’s club, she does not have to abstain. Similarly, if a matter comes before the board involving a business in which an official is an owner, officer, or director, he must abstain. However, if the official is merely an employee he may not need to abstain unless he will have a direct financial interest in the board’s decision.

Nonetheless, even if you would receive no obvious direct benefit, your involvement in an organization may still create a situation where you should abstain. If you would cast your vote a certain way because of your involvement in the women’s club, or your status as an employee, rather than voting in the best interest of your municipality, you should abstain.

Additionally, an official may be required to abstain during matters involving their “immediate family.” An official must abstain in matters involving their spouse or minor children. However, an official is not always required to abstain from matters involving their relatives by marriage, lineal descent, or adoption. In matters dealing with these relatives, officials need only abstain if the official provides more than one half of the financial support to the relative, or conversely, the relative provides more than one half of the official’s financial support.

In addition to Wisconsin’s statewide ethical rules for local public officials, your own local ordinances, rules, and policies may impose additional restrictions in which an official must abstain. Always check your municipality’s policies and ordinances when there is even a hint of a conflict.

The Wisconsin Government Accountability Board has published a number of guidelines and opinions on conflicts of interest, and their website (http://www.gab.wi.gov) is an excellent resource for general information. If you have specific questions regarding compliance with these laws, you should contact your municipal attorney.

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Governor Walker’s Proposed Budget Changes Assessment from City, Village and Town to County Assessment

Governor Walker’s new budget proposal would remove the assessment process from villages, towns, and most cities. This has been proposed in the past but gotten no traction in the legislature. Currently, local municipal governments are responsible for carrying out the property tax assessment process, and handling challenges to it from taxpayers. And almost all, if not all, small municipalities contract the assessment duties to profession assessors who are licensed by the state. Under the governor’s proposal, counties would take over property tax assessment.

You can review the budget at this State of Wisconsin Department of Administration website. The county assessment proposal can be found on page 460.

The goal may be to be to bring greater uniformity to property tax assessments, although this is not directly stated in the budget. Cities with populations over 39,000 (1st and 2nd class cities) can choose to maintain their own property tax assessment if they comply with the new regulations.