                                                                      2014 WI 62

                  SUPREME COURT                  OF   WISCONSIN
CASE NO.:                  2011AP2597
COMPLETE TITLE:            Associated Bank N.A.,
                                      Plaintiff,
                           SB1 Waukesha County, LLC,
                                      Co-Plaintiff-Respondent,
                                v.
                           Jack W. Collier, Deborah L. Collier, Greenbrier
                           Developers, LLC, Executive Realty Partnership
                           LP, Gerald
                           Franklin, Kenneth Whaley, ISB Community Bank and
                           United
                           States of America,
                                      Defendants,
                           Decade Properties, Inc.,
                                      Intervening
                                      Defendant-Appellant-Petitioner.



                             REVIEW OF A DECISION OF THE COURT OF APPEALS
                              Reported at 345 Wis. 2d 397, 824 N.W.2d 928
                                     (Ct. App. 2012 – Unpublished)

OPINION FILED:             July 15, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:             September 11, 2013

SOURCE OF APPEAL:
   COURT:                  Circuit
   COUNTY:                 Waukesha
   JUDGE:                  Donald J. Hassin Jr.

JUSTICES:
   CONCURRED:
   DISSENTED:              ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                           filed.)
  NOT PARTICIPATING:       PROSSER, J., did not participate.

ATTORNEYS:


       For      the    intervening     defendant-appellant-petitioner,     there
were    briefs        by    Roy   L.   Prange,   Valerie   L.   Bailey-Rihn,   and
Quarles & Brady LLP, Madison, and oral argument by Valerie L.
Baily Rihn.
    For the co-plaintiff-respondent, there was a brief by John
M. Van Lieshout, Joseph W. Voiland, and Reinhart Boerner Van
Deuren S.C., Milwaukee; and Neal H. Levin and Freeborn & Peters
LLP, Chicago, and oral argument by Neal H. Levin.




                                2
                                                                          2014 WI 62
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.       2011AP2597
(L.C. No.    2009CV4938)

STATE OF WISCONSIN                             :             IN SUPREME COURT

Associated Bank N.A.,

              Plaintiff,

SB1 Waukesha County, LLC,

              Co-Plaintiff-Respondent,

      v.
                                                                       FILED
Jack W. Collier, Deborah L. Collier, Greenbrier                   JUL 15, 2014
Developers, LLC, Executive Realty Partnership
LP, Gerald Franklin, Kenneth Whaley, ISB                             Diane M. Fremgen
                                                                  Clerk of Supreme Court
Community Bank and United States of America,

              Defendants,

Decade Properties, Inc.,

              Intervening Defendant-Appellant-
              Petitioner.




      REVIEW of a decision of the Court of Appeals.                     Modified in

part and as modified, affirmed.



      ¶1      PATIENCE DRAKE ROGGENSACK, J.            This is a review of an

unpublished     decision    of   the   court   of     appeals1      affirming       the
      1
       Associated  Bank   N.A.   v.   Collier,  No.                     2011AP2597,
unpublished slip op. (Wis. Ct. App. Nov. 28, 2012).
                                                                                 No.   2011AP2597



circuit court's2 denial of summary judgment, grant of a motion to

turn over property to the receiver, and denial of a motion for

reconsideration.           The review concerns the collection efforts of

two judgment creditors of defendant Jack Collier, SB1 Waukesha

County, LLC and Decade Properties, Inc., the latter being owned

by Collier's business associate, Jeffrey Keierleber.

      ¶2        Decade     argues    that    when      it    served      Collier        with    an

order     to    appear     at    supplemental         proceedings,          it    perfected      a

"common        law    creditor's     lien"       on    all       of   Collier's        personal

property.           According to Decade, its lien preserves the property

for   Decade's         benefit,     thereby        precluding         SB1     from     pursuing

collection from it.              SB1 argues that even though Decade served

Collier       with    an   order    to     appear     at     supplemental          proceedings

before SB1 did so, Decade has no lien on Collier's personal

property because Decade's judgment was not docketed before its

service of the order to appear.                       SB1 reasons that a judgment

must be capable of execution before there is the potential for a

common law lien on personal property and undocketed judgments
cannot obtain an execution.

      ¶3        We conclude that supplemental proceedings under ch.

816     are     a    discovery      tool    in     aid      of     judgment        collection.

Decade's        serving         Collier     with      an     order       to        appear      for

supplemental proceedings did not give rise to a blanket lien on

all   of      Collier's     personal       property         that      prevented        SB1   from


      2
       The Honorable Donald J. Hassin, Jr. of Waukesha County
presided.

                                              2
                                                                         No.   2011AP2597



pursuing collection.            A judgment creditor obtains an interest in

a   judgment        debtor's    identified,       non-exempt       personal     property

superior to other unsecured creditors when it dockets its money

judgment, identifies specific personal property and levies that

property.           Levying     may    be    accomplished     by    at    least    three

different means:            (1) by executing against specific personal

property with the assistance of a sheriff; (2) by serving the

garnishee defendant in a garnishment action to seize specific

property in the hands of the garnishee defendant; or (3) by

obtaining an order to apply specific personal property to the

satisfaction of the judgment, which a creditor may do with the

assistance of a supplemental receiver.                   Wis. Stat. § 815.05(6)

(2011-12);3 Wis. Stat. § 812.01; Wis. Stat. § 816.08.

       ¶4         Here,   SB1   was    the   first   judgment       creditor      with   a

docketed money judgment to levy specific, non-exempt personal

property of Collier.             It did so by obtaining a court order to

turn       over    specifically       identified     property      to    its   receiver.

Accordingly, we affirm the decision of the court of appeals that
concluded that SB1 has priority over Decade in regard to the

specific personal property SB1 identified and levied.                           However,

insofar as the decision of the court of appeals can be read to

recognize a blanket lien in favor of SB1 that prevents other

creditors          from   pursuing     collection      from     Collier's       personal




       3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.

                                              3
                                                                          No.    2011AP2597



property,       we    modify    that    decision       because      no    blanket       lien

exists.

                                  I.     BACKGROUND

    ¶5         This    case    concerns       SB1's       attempt    to    satisfy       the

portion of a default judgment against Collier that it purchased

from Associated Bank, N.A.              The relevant portion of the judgment4

relates to Collier's default on a $7.2 million promissory note

in favor of Associated, which Collier secured with a personal

guarantee and a mortgage on a Brookfield property.

    ¶6         After purchasing a portion of Associated's docketed

money   judgment        against    Collier,         SB1    obtained       an    order   for

Collier to appear at supplemental proceedings.                       Despite repeated

attempts       to    serve    Collier    in       Wisconsin    and    Florida,       where

Collier had a second home, SB1 was unsuccessful and the order

expired.

    ¶7         Shortly after SB1 obtained an order for Collier to

appear, Keierleber, the owner of Decade, sued Collier.                                   The

court     of    appeals       succinctly          summarized   the       litigation      as
follows:

         In short order, Keierleber commenced six lawsuits
    on   behalf  of   Keierleber,   Keierleber-owned,  and
    Keierleber- and Collier-owned Wisconsin and Florida
    entities, Decade among them. Each complaint sought
    enforcement of a claimed loan right and money judgment
    against Collier or against two business entities of
    which Keierleber and Collier each owned a fifty-

    4
       The judgment also related to Collier's default on a $1.8
million promissory note, which he secured with his interest in
Clearwater Bay Investors, LLC.    This debt is not part of the
proceedings before us.

                                              4
                                                                      No.    2011AP2597


       percent interest. While still unserved with SB1's
       order to appear, Collier accepted service of these six
       complaints. The parties involved in the six new
       actions executed stipulations agreeing to judgment
       amounts in each of them.
Associated     Bank    N.A.    v.    Collier,     No.    2011AP2597,      unpublished

slip op., at ¶4 (Wis. Ct. App. Nov. 28, 2012).

       ¶8     Of these six lawsuits, the present case concerns only

the     $654,646.83     judgment        Decade     obtained        against       Collier

personally.       Decade      tried    to    docket      this   judgment     with   the

Waukesha County Clerk of Court by sending the judgment, a $5.00
docketing fee and a receipt for docketing to the circuit court,

where the judgment was to be signed and forwarded to the clerk

with    the   docketing       fee    and    receipt.       However,       even   though

Decade's attorneys received the receipt dated October 26, 2010,

the clerk did not enter the judgment in the judgment and lien

docket.        Instead,      on     June 29,     2011,     after    the     error    was

discovered, the clerk docketed Decade's judgment.

       ¶9     On November 16, 2010, Decade served Collier with an

order    to   appear   for     supplemental       proceedings,      which     Decade's

attorney conducted on November 22, 2010.                    In its brief, Decade

explained that it took these actions after learning about SB1's

collection efforts in order to "protect its interest by first

obtaining a judgment and then a superior Creditor's/Receivers

Lien against Collier's personal property."                      It does not appear

from the record that Decade took any additional steps to seize

any of Collier's personal property to satisfy its judgment.

       ¶10    Having been unsuccessful in serving Collier before the
initial order expired, SB1 subsequently obtained a second order

                                            5
                                                                        No.    2011AP2597



for Collier to appear for supplemental proceedings.                            SB1 also

moved the circuit court to appoint a supplemental receiver.

       ¶11    On April 2, 2011, at Collier's Florida residence, SB1

finally obtained service of the order to appear for supplemental

proceedings and its motion to appoint a receiver.                        On April 18,

2011, Collier failed to appear at the scheduled supplemental

proceedings and the supplemental commissioner issued an order to

show cause why Collier should not be held in contempt of court.

The    commissioner     also     appointed     Douglas     Mann    as     supplemental

receiver.

       ¶12    On June 9, 2011, the day before the return date of the

order    to    show    cause,    Collier       initiated    a     state       insolvency

proceeding      in    Florida.     SB1   moved     to    enjoin     the       insolvency

proceeding on the grounds that SB1 had a receiver's lien on

Collier's      personal    property,       which    was     perfected.            Decade

intervened and objected to imposition of an injunction.                               The

Florida insolvency proceeding was enjoined and Collier was found

in contempt of court for failing to appear at SB1's supplemental
proceedings.

       ¶13    On July 29, 2011, SB1 moved for court approval of the

sale    of    Collier's    personal      property       located     in    Brookfield,

Wisconsin, which had a fair market value of $63,925.                           SB1 also

moved to order Collier to turn over certain shares of stock,

rights to unasserted counterclaims and affirmative defenses in

Waukesha      County   cases,     and   all    partnership      interests        in   and

profits from an entity called AWI Limited Partnership.


                                           6
                                                                    No.     2011AP2597



       ¶14       Decade intervened and opposed SB1's motions.                 Decade

moved for summary judgment on the grounds that it had a superior

lien on all of Collier's personal property.                        It argued that

according to our decision in Mann v. Bankruptcy Estate of Badger

Lines, Inc., 224 Wis. 2d 646, 590 N.W.2d 270 (1999), all that is

necessary to perfect a common law lien that prevents SB1 from

pursuing collection is service on Collier of an order to appear

at a supplemental proceeding.

       ¶15       SB1 responded that Decade could not have had a lien on

Collier's personal property when it served Collier with a notice

to appear at supplemental proceedings because Decade's judgment

had not been entered in the judgment and lien docket.

       ¶16       Decade   contended     that   the     failure     to     enter   the

judgment in the judgment and lien docket did not affect the

validity of its lien.5             At a hearing before the circuit court,

Decade's attorney argued that "the key issue is that execution

and the ability to execute [are] separate from the ability to

institute supplementary proceedings because you don't need to
have       [an   un]satisfied      execution   in    order   to   proceed    with    a

compelling order to appear before a court commissioner."                            In

other words, Decade's position was that a judgment creditor can

obtain a common law lien even if its judgment is not docketed or

executable         because   the     ability   to    execute      and   a   judgment

creditor's lien are not tethered.

       5
       The parties seem to agree that the failure to enter
Decade's judgment in the judgment and lien docket was due to a
clerk's error.

                                          7
                                                                      No.   2011AP2597



      ¶17    The     circuit      court        rejected      Decade's       argument,

reasoning that "if the underpinning for the proceeding fails[,]

the proceeding itself necessarily fails."                    In denying Decade's

motion      for    reconsideration,        the   court     reiterated       that     its

position was that "you can't pursue collection unless you have

an   executable      judgment. . . .        [H]ow   can    you   go     forward      and

compel somebody to appear at a supplementary where you don't

have a judgment that you can collect on[?]"

      ¶18    Accordingly, the circuit court concluded that SB1's

interest in Collier's personal property was superior to that of

Decade's,     holding      that   "[a]ll    actions,      proceedings,      liens     or

other orders relative to Decade's un-docketed judgment prior to

June 29,     2011    that    would   otherwise      [a]ffect     or     limit      SB1's

supplemental proceedings or attempt to execute upon the judgment

are held for naught."             The circuit court then granted SB1's

motions and approved the sale of Collier's personal property.

The court also vested the supplemental receiver with Collier's

rights in the property identified in SB1's motion for turnover.
      ¶19    Decade appealed and the court of appeals affirmed the

orders of the circuit court.                The court of appeals concluded

that service of an order to appear at supplemental proceedings

"does not . . . present an alternative to a properly docketed

judgment."        The court also concluded that the circuit court's

refusal to exercise the court's equitable power in favor of

Decade   was      within    its   discretion,       noting    that     "the     record

suggests that Collier evaded service from SB1 for months and
that Decade's six lawsuits were filed as a dilatory tactic."
                                           8
                                                             No.   2011AP2597



     ¶20   Decade   seeks    review       before   us,   making    the   same

arguments it made to the circuit court and the court of appeals.

We affirm the decision of the court of appeals to the extent

that it recognized SB1's priority to the property SB1 levied.

We also affirm its conclusion that an undocketed judgment cannot

obtain an execution.        We modify the decision of the court of

appeals insofar as it could be read to recognize a blanket lien

giving any one unsecured judgment creditor the exclusive right

to pursue collection from all of a debtor's personal property,

simply due to service of an order to appear for supplemental

proceedings.6

                             II.   DISCUSSION

                       A.    Standard of Review

     ¶21   Decade asks us to uphold what it asserts is a judgment

creditor's lien on all of Collier's personal property.               Whether

a lien exists and the effect of an alleged lien against third

parties are questions of law that we review independently of the

court of appeals.    See McIntyre v. Cox, 68 Wis. 2d 597, 602, 229


     6
       In explaining its refusal to separate execution and
supplemental proceedings, the court of appeals held that
"[w]ithout a creditor's lien, there is no right to pursue
collection under § 816.03."    Associated Bank, No. 2011AP2597,
unpublished slip op., ¶16.    This statement may simply express
the same uneasiness we have with allowing a creditor to
circumvent statutory execution processes.   Lest our affirmation
of the decision of the court of appeals be construed to
recognize a blanket lien that gives an unsecured judgment
creditor the exclusive right to pursue collection from all of
the judgment debtor's personal property, we clarify that no such
blanket lien exists or is necessary to pursue collection from a
judgment debtor.

                                      9
                                                                                  No.     2011AP2597



N.W.2d   613      (1975);     Yorgan      v.    Durkin,         2006        WI    60,    ¶55,    290

Wis. 2d 671, 715 N.W.2d 160 (Roggensack, J., dissenting).

    ¶22      Decade     also     asks     us    to    review          the    circuit       court's

refusal to exercise its equitable powers, for which we employ an

erroneous    exercise       of    discretion          standard.             J.L.        Phillips   &

Assocs. v. E & H Plastic Corp., 217 Wis. 2d 348, 365, 577 N.W.2d

13 (1998).        An erroneous exercise of discretion occurs when the

circuit court fails to exercise discretion, the facts fail to

support the court's decision or the circuit court applies the

wrong legal standard.            Id. at 364-65.

                   B.   General Debtor/Creditor Principles

    ¶23      By    entering       a     judgment       in       the    judgment          and    lien

docket, a judgment creditor obtains a ten-year statutory lien on

real property of the debtor located in the county in which the

judgment     was    docketed.           Wis.        Stat.       § 806.15(1).              However,

entering a judgment in the judgment and lien docket does not

create   a   statutory        lien      on     the    debtor's         personal          property.

Instead,     a    judgment       creditor       obtains         an    unsecured,          inchoate
interest with regard to the debtor's personal property, tangible

and intangible, against which to levy.                                As such, a judgment

creditor will typically "have to take further steps to enforce

the judgment."          Robert A. Pasch, 12 Wisconsin Practice Series:

Wisconsin        Collection       Law     § 14:1,          at    286        (2d     ed.     2006).

Execution, garnishment and turnover orders applying property in

satisfaction       of   a   judgment         are     all    methods          of    levying      the

judgment debtor's personal property.


                                               10
                                                                        No.     2011AP2597



                                     1.    Levy

      ¶24    Wisconsin statutes provide several different methods

by which to levy, but each "require[s] reachable, non-exempt,

assets of the debtor."              Pasch, supra, § 14:1, at 287.                       One

method used to judicially enforce money judgments is execution.

Black's     Law   Dictionary       650    (9th   ed.   2009);       see    Wis.    Stat.

§ 815.02 ("A judgment which requires the payment of money or the

delivery     of   property    may    be    enforced       in    those     respects       by

execution.").      For instance, a judgment creditor can execute on

specific,     non-exempt       personal        property        of   the       debtor     by

obtaining an order to have the sheriff seize the property.                             Wis.

Stat. § 815.05(6).

      ¶25    If a judgment creditor locates specific, non-exempt

personal property belonging to the debtor or owed to the debtor

in the control of a third party, the judgment creditor may be

able to levy that property through garnishment.                               Wis. Stat.

§ 812.01.     Garnishment is entirely statutory.7                   Therefore, "[i]n

the   absence     of    specific    statutory     authorization,          garnishment
does not lie."         Moskowitz v. Mark, 41 Wis. 2d 87, 91, 163 N.W.2d

175 (1968).




      7
       Garnishment actions vary in type and requirements.   For
example, under certain circumstances, a garnishment action may
be commenced prior to judgment.   See Wis. Stat. § 812.02; Wis.
Stat. § 812.05. In addition, the filing of a garnishment action
does not assure that other creditors do not have a superior
claim to the property the garnishee holds.      See Wis. Stat.
§ 812.11(5).

                                          11
                                                                                No.     2011AP2597



       ¶26        Finally,    a     creditor        may    levy     specific,         non-exempt

personal      property        by    obtaining        a    court    order       to     apply    that

property in satisfaction of the judgment.                           Wis. Stat. § 816.08.

A supplemental receiver may obtain such a turnover order on a

creditor's behalf.                Id.; Candee v. Egan, 84 Wis. 2d 348, 361,

267    N.W.2d       890    (1978)       ("A   receiver       in    aid    of    execution        is

authorized to collect those assets revealed by the examination

of    the    debtor,       take     possession       of     them,    apply      them     to     the

satisfaction         of    the     judgment,        and    return    the       excess     to    the

judgment debtor.").

       ¶27        Because each of these statutory collection procedures

requires a creditor to identify specific, non-exempt property of

the debtor to levy, judgment collection can be cumbersome and

expensive if the details of a debtor's property are not known to

the    judgment          creditor.         Supplemental           proceedings         provide     a

mechanism by which to obtain information in aid of judgment

collection.

                             2.    Supplemental proceedings
       ¶28        Wisconsin        Stat.      ch.     816    is      entitled          "Remedies

Supplementary to Execution."                    Supplementary proceedings are a

"form of discovery . . . used where the judgment creditor is

uncertain of the nature, location, extent, and amount of the

debtor's property."                Pasch, supra, § 16:1, at 318.                       Wisconsin

Stat.       ch.    816    vests     a    supplemental        court       commissioner          with

certain powers to aid in enforcement of the judgment against the

judgment debtor's property.                   For instance, a supplemental court
commissioner can compel a judgment debtor who has been served
                                                12
                                                                                    No.     2011AP2597



with an order in compliance with Wis. Stat. § 816.035 to appear

to answer questions concerning his or her property.                                       Wis. Stat.

§ 816.03.             If it appears that there is danger of a judgment

debtor leaving the state or if the judgment debtor has property

he    or    she       unjustly       refuses       to     apply       to    the    judgment,       the

commissioner may require the debtor to give a bond and refrain

from disposing of property not exempt from execution.                                              Wis.

Stat. § 816.07.               If supplemental proceedings reveal non-exempt

personal property, a court commissioner or judge may order that

the property be applied toward the judgment, sometimes through

the use of a supplemental receiver, rather than having a sheriff

seize the property.                Wis. Stat. § 816.04; Wis. Stat. § 816.08.

                                             3.    Liens

       ¶29       No statute grants a judgment creditor a lien on the

judgment         debtor's      personal       property          simply       by    docketing       the

judgment.          However, in Badger Lines, we mentioned a lien that

had    as    one       of    its    underpinnings          a    docketed          money    judgment.

There,      the       United       States    Court        of    Appeals       for     the    Seventh
Circuit certified the following question that arose in a dispute

in federal bankruptcy court:                      "Does Wisconsin law require that a

lien        obtained          by     a      judgment           creditor        who        institutes

supplementary               proceedings        under           Wis.        Stat.     § 816.04        be

perfected, and if so, how is the lien to be perfected?"                                       Badger

Lines, 224 Wis. 2d at 649 n.2.                      When we decided Badger Lines, we

assumed,         as    did     the    certified         question,           that     the    judgment

creditor had a lien, and we answered that "a creditor's lien is
valid      and    superior         against        other    creditors          at    the     time   the
                                                   13
                                                                   No.    2011AP2597



creditor    serves   the   debtor     with   a    summons   to   appear    at   the

supplementary proceeding under Wis. Stat. § 816.03(1)(b)."                      Id.

at 649.     We now take a closer look at when a lien may arise and

to which personal property such a lien may attach.

    ¶30     Kellogg v. Coller, 47 Wis. 649, 3 N.W. 433 (1879),

involved two judgment creditors who sought to employ Wis. Stat.

§ 3030 and Wis. Stat. § 3031 (1878) when the executions of their

individual judgments were returned unsatisfied.                  Id. at 657.     To

some extent, Kellogg's discussion is helpful to determining when

a judgment creditor may obtain a lien.              There, we explained:

         In several summary proceedings supplementary to
    executions   against    the    same    debtor,   returned
    unsatisfied   (R.   S.,    secs.    3028-3038),——such   a
    proceeding being a substitute for a creditor's bill,——
    the creditor who first commences his proceeding and
    obtains service of process upon the debtor, and
    prosecutes the proceeding with proper diligence to the
    appointment of a receiver, obtains a prior lien upon
    the assets of the debtor.
Id. at 649 (emphasis added).            This passage appears to be the

source of the common law receiver's lien discussed in Candee,

which we cited in Badger Lines, and Badger Lines itself.                    Badger
Lines, 224 Wis. 2d at 654.

    ¶31     However, Kellogg says nothing about a blanket judgment

creditor's    lien   on    all   of    the       judgment   debtor's      personal

property.    In addition, it is somewhat problematic to argue too

strongly from cases as old as Kellogg because the statutes they

employ differ from current legislative enactments, and the ever

developing body of case law and code can shade what at the
moment of decision once seemed so clear.

                                       14
                                                                           No.      2011AP2597



       ¶32    Furthermore, there is a "diversity of opinion as to

[the] real character" of judgment creditor's liens relating to

execution      that     dates     back    much     farther        than     Candee.        For

instance, in Bank of Commerce v. Elliott, 109 Wis. 648, 660-61,

85    N.W.    417    (1901),      we    examined       the    rights      of    a   judgment

creditor who had initiated a garnishment action.                           In attempting

to ascertain the creditor's rights in relation to a bankruptcy

trustee, we noted:

            The courts have uniformly said . . . that the
       service of a garnishee process is an equitable levy
       upon the property of the debtor in the hands of the
       garnishee, and that the interest thereby obtained in
       such property is at least in the nature of an
       equitable lien, and has been commonly called a lien.
       In many cases it has been called a lien without
       qualification, in others an equitable lien, and in
       some a mere inchoate or incipient lien,——the mere
       commencement of proceedings to obtain a lien in
       fact. . . . Some . . . authorities are to the effect
       that a garnishee levy creates a specific lien. Others
       are directly to the contrary.

Id.    at     660-61    (emphasis        added).         As       we     have    explained,

garnishment creates a lien due to the seizure of the debtor's
property      that     is   in    the    hands    of    the       garnishee      defendant.

Morawetz v. Sun Ins. Office, 96 Wis. 175, 178, 71 N.W. 109

(1897)       ("[G]arnishment       is    a   seizure         in    the     hands     of   the

garnishee by notice to him, creating an effectual lien upon the

garnished property to satisfy whatever judgment").

       ¶33    The judgment creditors in both Kellogg and Bank of

Commerce levied the debtor's property in order to affix common
law   liens——Kellogg         by    attempted      execution         that    was     returned


                                             15
                                                                          No.       2011AP2597



unsatisfied and then securing the appointment of a receiver, who

applied the debtor's personal property to the judgment debt, and

Bank of Commerce by prosecuting a garnishment action, wherein

the specific personal property in the hands of a third party was

levied.      Kellogg, 47 Wis. at 656; Bank of Commerce, 109 Wis. at

661.       The    conclusion     that      a        judgment    creditor        who    first

identifies and levies specific, non-exempt personal property of

a judgment debtor has a superior interest in regard to other

judgment creditors who have taken no such actions in regard to

the    identified        property         is    consistent        with     our        earlier

decisions.8

       ¶34       For example, in Alexander v. Wald, 231 Wis. 550, 286

N.W. 6 (1939), we examined the rights of a supplemental receiver

vis-a-vie a bankruptcy trustee.                     Id. at 551.        We held that the

receiver, who had discovered and executed on intangible personal

property         consisting    of     a   real       estate     mortgage,       a     chattel

mortgage,        and   certain      personal        property    that    the     debtor    had

fraudulently conveyed, had an interest superior to that of the
bankruptcy trustee with respect to that property because the

receiver had been appointed and levied more than four months

before commencement of the bankruptcy.                    Id.




       8
       It should be noted that when two judgment creditors with
docketed money judgments each attempt to levy identified, non-
exempt personal property, or when a perfected secured party's
rights are at issue, further analysis may be necessary to
determine relative priorities.

                                               16
                                                                   No.     2011AP2597



    ¶35      In Holton v. Burton, 78 Wis. 321, 47 N.W. 624 (1890),9

we reached a consistent result.                Holton concerned a judgment

creditor who had initiated supplemental proceedings, but had not

levied any specific property.             An assignment for the benefit of

creditors was made after supplemental proceedings were begun,

but before a supplemental receiver was appointed.                    Id. at 322.

We reasoned that the judgment creditor did not have a superior

interest,    but    instead   had    to    take   a   pro   rata   share    of   the

debtor's personal property in the insolvency proceeding because

the judgment creditor had not timely levied specific personal

property to avoid the effect of the insolvency proceedings.                      Id.

at 327-28.

    ¶36      It    is   reasonable   to    conclude     that   the   results      in

Alexander and Holton, where judgment creditors were in disputes

with insolvency trustees, were at least partially due to the

different steps the judgment creditors took and the timing of

those steps.       When the judgment creditor exercised rights to the

debtor's property by timely levying specific property well in
advance of the insolvency proceedings, the creditor prevailed.

When the creditor did nothing more than initiate supplemental

proceedings prior to an insolvency proceeding, the creditor did

not prevail.        Stated otherwise, a judgment creditor obtained a

superior interest in identified personal property of a judgment

debtor that could defeat the claim of a trustee in insolvency or

    9
       While the reasoning in Holton v. Burton, 78 Wis. 321, 47
N.W. 624 (1890), is interesting, I note that the statutes then
employed have been changed significantly.

                                          17
                                                                No.   2011AP2597



bankruptcy proceedings when the judgment creditor or a receiver

acting on the judgment creditor's behalf levied that property

before the trustee obtained an interest in the property.10

      ¶37   At first glance, Kellogg may appear to cast doubt on

this interpretation.        In Kellogg, two judgment creditors, who

had   executions      returned    unsatisfied,     initiated     supplemental

proceedings     and    obtained     appointments    of    two    supplemental

receivers.11          The   first    judgment      creditor     to    initiate

supplemental proceedings was second to properly serve the debtor

with an order to appear for supplemental proceedings because of

a technical problem with its first service.              Kellogg, 47 Wis. at

651-52.     By the time the first judgment creditor properly served

the debtor, the second judgment creditor had served the debtor

and the debtor had assigned his property to the second judgment

creditor's receiver in aid of execution of the second creditor's


      10
       Early New York cases are particularly persuasive because
Wisconsin adopted its supplemental proceeding statutes from New
York.   Robert S. Moss, Supplementary Proceedings in Wisconsin,
23 Marq. L. Rev. 49, 51 (1939).     These cases also support our
interpretation.   While the New York and Wisconsin supplemental
proceeding statutes were still comparable, the New York rule was
"to give the creditor a lien on the debtor's equitable assets
which was [an] 'inchoate' [lien] at the time the examination
order was served."    See Isadore H. Cohen, Collection of Money
Judgments in New York: Supplementary Proceedings, 35 Colum. L.
Rev. 1007, 1015-17 (1935) (citing Edmonstone v. McLoud, 16 N.Y.
543 (N.Y. 1858); Lynch v. Johnson, 48 N.Y. 27 (N.Y. 1871)).
      11
        We ultimately held that "where different judgment
creditors are prosecuting supplementary proceedings against the
same debtor at the same time," only one receiver should be
appointed.   Kellogg v. Coller, 47 Wis. 649, 657, 3 N.W. 433
(1879).

                                      18
                                                                No.     2011AP2597



judgment.     Id.    Despite the assignment, we concluded that "under

all of the circumstances of the case, [the second creditor's]

proceeding [wa]s inoperative to give [the second creditor] a

prior lien."       Id. at 657.

      ¶38   Read in light of its facts, Kellogg established the

judgment creditor for whose benefit a supplemental receiver must

act, i.e., which judgment creditor had priority to money that

the   supplemental       receiver       recovered,      regardless     of     which

creditor had the receiver appointed.                Under Kellogg, the first

judgment creditor who made a "bona fide attempt to serve" an

order to appear for supplemental proceedings and also prosecuted

"with proper diligence" to the appointment of a supplemental

receiver     had    priority     to    assets     the   supplemental    receiver

recovered,     even     if     the     receiver     was   appointed     in     the

supplemental proceedings of a different judgment creditor.                      Id.

at 656-57.12       The equities of the underlying facts also may have

impacted our decision in Kellogg because the second judgment

creditor and her attorney "had actual notice that [Kellogg] had
previously     commenced       [supplemental        proceedings]"      when     she

instituted her proceeding.            Id. at 652.

      ¶39   However, it is significant that two judgment creditors

remained free to pursue collection on their docketed judgments


      12
        See also Alexander v. Wald, 231 Wis. 550, 552, 286 N.W. 6
(1939) ("bankruptcy proceedings had not displaced the lien
acquired by the receiver upon his appointment"); Cohen, supra
note 10, at 1016 (in New York, it was only upon appointment of a
receiver that a creditor's interest "ripen[ed] into a full
lien").

                                         19
                                                                       No.     2011AP2597



at   the     same    time.       Id.     at    658    ("different     [supplemental]

proceedings         may    be   pending       at     the    same    time,     the    only

restriction         upon    a   junior    proceeding        being    that     creditors

prosecuting prior proceedings shall be notified of the pendency

thereof, and that but one receiver shall be appointed. . . . the

plaintiff in the junior proceeding should be allowed to proceed

. . . without regard to priorities").

       ¶40    Furthermore, our conclusion that a superior judgment

creditor's interest in specific personal property may arise when

that property is seized has been the statutory directive of the

legislature since at least 1864.                   As we explained so long ago in

Knox v. Webster, 18 Wis. 426 (*406) (1864), when interpreting a

prior statute, "'[p]ersonal property shall be bound from the

time of its seizure on execution.'                    Before seizure there is no

lien[;] . . . [t]he lien takes effect from the date of the levy

and by virtue thereof."            Id. at 429-30 (*409) (internal citation

omitted).         In this regard, the current statute states the same

legal principle:            "Personal property shall be bound from the
time   it    is     seized."      Wis.    Stat.      § 815.19(1).       Accordingly,

seizure, often referred to as levying, of personal property is

necessary to create a lien in favor of an unsecured judgment

creditor.

       ¶41    Having       explained   the     common      law   foundation    and    the

statutory foundation for when a judgment creditor's lien may




                                              20
                                                                              No.    2011AP2597



arise in identified personal property,13 we briefly return to

Badger Lines.          Badger Lines arose in a priority contest between

a judgment creditor, Emerald Industrial Leasing Corporation, and

a trustee in bankruptcy.                  Badger Lines, 224 Wis. 2d at 649-50.

A trustee in bankruptcy has, by federal statute, all the rights

of a judgment creditor.                   11 U.S.C. § 544(a).                A supplemental

receiver had been appointed to administer Badger Lines' property

for the benefit of Emerald before the case made its way to us.

Prior      to    the   appointment         of   the       receiver,    Emerald       also   had

docketed its judgment.                   Badger Lines, 224 Wis. 2d at 649-50.

And   subsequent          to    said     docketing,         Emerald    served        an   order

directing         Badger       to      appear     for      a   ch.     816     supplemental

proceeding.         Id. at 650.

      ¶42        Docketing        a    creditor's         judgment     is     a      condition

precedent to establishing the priority of a judgment creditor's

interest because a judgment must be docketed before an execution

against the property of a judgment debtor can issue.                                Wis. Stat.

§ 815.05(1g)(a)6.              (requiring       that      an   execution      shall       state,
"[t]he time of entry in the judgment and lien docket in the

county      to    which     the       execution      is    issued").        Furthermore,      a

judgment         creditor      must     levy    specifically         identified       personal




      13
       See In re Badger Lines, Inc., 140 F.3d 691, 694-95 (7th
Cir. 1998) (finding that Kellogg's omission of a perfection
requirement is "too thin a reed on which to rest [an] important
[priority] determination, especially in light of the significant
changes which have occurred in debtor/creditor law in the 120
years since" that decision).

                                                21
                                                                   No.   2011AP2597



property of the debtor before a lien can arise in that property.

Knox, 18 Wis. 2d at 429-30; Wis. Stat. § 815.19(1).

        ¶43     In Badger Lines, the trustee in bankruptcy attempted

to declare Emerald's interest a preference, whereby he could

place Emerald's money judgment among all of the other unsecured

creditors' claims.            Badger Lines, 224 Wis. 2d at 650-51.               Of

course, Emerald had no interest in sharing the assets it had

uncovered with other creditors.                However, if Emerald's lien was

created within 90 days of filing the bankruptcy, it would be

held to be an avoidable preference and Emerald would lose to the

trustee.         Id. at 651.       Therefore, instead of focusing on the

creation        of   its   lien,   Emerald     shifted   the   court's   focus   to

"perfection" of its lien.              Emerald did so because if perfection

occurred more than 90 days before the filing of the bankruptcy,

Emerald could possibly prevail.

        ¶44     In Badger Lines, we did not have a full record that

displayed        all   the    issues    that     we   might    have   considered;

therefore, it differed significantly from the case now before
us.14        Badger Lines' statement that the date of service on Badger

        14
       At least one commentator seemed to view the Badger Lines
as a departure from older case law, noting that:

        The Wisconsin Supreme Court, In re Badger Lines, Inc.,
        224 Wis. 2d 646, 590 N.W.2d 270 (1999), held that
        service upon the debtor of an order to appear at a
        supplemental examination under Chapter 816 establishes
        at the time of service a lien in favor of the creditor
        without requiring the creditor to take additional
        steps to perfect the lien . . . The court rejected
        arguments   that,  to  avoid   a  secret   lien,  some
        additional action should be required of a judgment
        creditor. The court also rejected arguments that the
                                          22
                                                                       No.    2011AP2597



Lines of the order to appear for supplemental proceedings was

the date of "perfection" must be limited to the context in which

it arose.     That context did not include an assertion that common

law liens do not require "perfection," but rather, liens arise

in specifically identified, non-exempt personal property when

that property is levied.

      ¶45   Accordingly, it must be recognized that service of an

order to appear for supplemental proceedings will not create an

interest that is superior to the interest of a docketed judgment

creditor    who    has    levied       specific       personal   property      of   the

debtor.     Merely serving an order to appear for supplemental

proceedings     also     will    not    create    a    common    law   lien    on   the

debtor's personal property nor will it give a judgment creditor

an   interest     superior      to   that   of    a   secured    creditor     who   has




      lien should not arise until a supplemental receiver is
      appointed or the court issues a turnover order as to
      the debtor's assets; the court held that the lien
      arises at an earlier stage, when the judgment debtor
      is served with the order to appear at the supplemental
      examination.   See Holton v. Burton, 78 Wis. 321, 47
      N.W. 624 (1890).

Robert A. Pasch, 12 Wisconsin Practice Series:         Wisconsin
Collection Law § 16:13, at 330-31 (2d ed. 2006).      Pasch also
noted the breadth of the decision, explaining that the case
"references the lien as a 'receiver's lien,' [but] . . . appears
to have broader application to the lien of a judgment creditor
pursuing supplemental proceedings." Id. at 331.

                                            23
                                                                        No.    2011AP2597



timely proceeded according to the directives of Wis. Stat. ch.

409.15

                     4.   Statutory collection procedures

       ¶46     To conclude, as Decade asserts, that simply serving a

judgment       debtor     with   an    order        to   appear   at     supplemental

proceedings gives a judgment creditor the exclusive right to

pursue collection from all of the debtor's personal property

would improperly "impinge on the purview of the legislature" by

eviscerating its statutory scheme for judgment collection.                            See

Crown Castle USA, Inc. v. Orion Constr. Group, LLC, 2012 WI 29,

¶17,     339   Wis. 2d    252,   811       N.W.2d    332    (refusing     to   find   an

implied right to compel a third party to appear at supplemental

proceedings because Wis. Stat. ch. 816 did not provide for one).

       ¶47     For   example,    if    a    judgment       creditor    were    able   to

encumber all of a judgment debtor's personal property simply by


       15
       Wisconsin Stat. ch. 409 governs voluntarily given
security interests, rather than creditors' rights represented by
a judgment. Wis. Stat. § 409.109(4)(i) (chapter does not apply
to "assignment of a right represented by a judgment, other than
a judgment taken on a right to payment that was collateral").
Under this system of secured transactions, a creditor obtains a
security interest in property the debtor has assigned as
collateral   that   is   enforceable   against   the   debtor   when
"attachment" occurs pursuant to Wis. Stat. § 409.203.            The
creditor's security interest is valid against the claims of
other creditors when it perfects that interest by meeting "all
of the applicable requirements for perfection in ss. 409.310 to
409.316."      Wis.    Stat.   § 409.308.       These    "applicable
requirements" vary depending on the type of collateral, but the
general rule is that "a financing statement must be filed to
perfect all security interests."     § 409.310(1).   See Attorney's
Title Guaranty Fund, Inc. v. Town Bank, 2014 WI 63, __ Wis. 2d
__, __ N.W.2d __.

                                            24
                                                                        No.    2011AP2597



serving      an   order    to    appear        for     supplemental      proceedings,

alternate statutory processes such as execution, ch. 815, and

garnishment,      ch.     812,   and    turnover        orders    would       be    nearly

useless for collection of money judgments.                      A judgment creditor

who   does    nothing     more   than     initiate      supplemental      proceedings

could stop another judgment creditor who has located specific,

non-exempt personal property from having the sheriff seize the

asset under a valid execution order.                      Similarly, a judgment

creditor who discovered a judgment debtor's bank account could

be    prevented   from     garnishing         that    account    once    an    order       to

appear for supplemental proceedings was served.                     And since state

law determines priority in bankruptcy, a judgment creditor who

does nothing more than serve a debtor with an order to appear at

supplemental proceedings outside of the bankruptcy preference

period could thereby defeat the claim of a bankruptcy trustee

(and the unsecured creditors he or she represents) to all of the

debtor's personal property.               If those results were to occur,

they would directly contradict the legislature's directive that
"[p]ersonal property shall be bound from the time it is seized."

Wis. Stat. § 815.19(1).

       ¶48   Moreover,     by    granting       the    judgment   creditor          with    a

docketed     judgment      who    first       levies     on   non-exempt           personal

property a superior interest in that property, "[t]he law justly

rewards the diligent creditor who by his timely efforts succeeds

in    discovering       assets   of     the    debtor     which    are    inequitably

withheld from his creditors."                   John W. Smith,          The Equitable
Remedies of Creditors § 235, at 243 (Chicago, Callaghan & Co.
                                          25
                                                                               No.    2011AP2597



1899).       Rather than encouraging diligence, the kind of blanket

lien Decade asks us to recognize would remove incentives for a

judgment      creditor          to    locate          and    levy   a    debtor's     personal

property.         The facts of this case aptly demonstrate some of the

problems this would present.

                      5.    Article 9 secured transactions

       ¶49    A    blanket           lien    on       a     judgment     debtor's     personal

property      also    would          frustrate         the    legislature's         goal   of   a

uniform      system        of        secured          transactions.           The    Wisconsin

Legislature adopted the Uniform Commercial Code in 1965 in order

to     "simplify,       clarify,            and       modernize         the   law    governing

commercial transactions."                   Wis. Stat. § 401.103(1)(a).

       ¶50    Chapter      409        governs         secured   transactions         and   works

toward these stated goals by prescribing the steps a party must

take    to   obtain     and      perfect          a    security     interest    in    personal

property.16        Wis. Stat. § 409.203; Wis. Stat. § 409.301 et. seq.;

see generally Smith & Spidahl Enters., Inc. v. Lee, 206 Wis. 2d

663, 673, 557 N.W.2d 865 (Ct. App. 1996) ("Fashioning equitable
solutions to mitigate the hardship of [statutory] requirements

on particular creditors undermines [the system's] purpose. . . .

[R]elaxing [statutory] requirements does not . . . justify the


       16
       Article 9 of the Uniform Commercial Code is contained in
Wis. Stat. ch. 409. Nat'l Operating, L.P. v. Mut. Life Ins. Co.
of N.Y., 2001 WI 87, ¶31, 244 Wis. 2d 839, 630 N.W.2d 116
("Wisconsin has adopted each section of the U.C.C. relevant to
this case. This includes all of Article 9, which is embodied in
Chapter 409 of the Wisconsin Statutes.     Chapter 409 does not
vary in any material respect from the uniform law.").

                                                  26
                                                                          No.    2011AP2597



uncertainty and inconsistency that would result from such an

approach.").

    ¶51    Article 9 does not apply to the present case.                               Wis.

Stat.   § 409.109(4)(i).               Judgment          creditors       are     unsecured

creditors with regard to a debtor's personal property.                             Still,

the impact of a blanket lien on the statutory scheme for secured

transactions provides additional understanding of the conflicts

that such a lien would create.                   We explain in more detail the

implications     a   blanket        lien    would        have    on   lending,     paying

particular attention to Wis. Stat. ch. 409 in Attorney's Title

Guaranty Fund v. Town Bank, 2014 WI 63, ¶¶30-36, __ Wis. 2d __,

__ N.W.2d __, released today.

    ¶52    And finally, we conclude that if a judgment creditor

were to have a blanket lien on all the personal property of a

judgment   debtor       that   precludes         other    creditors      from     pursuing

collection,      that     is    a    policy       choice        better    left    to     the

legislature than to the courts.                   Compare Cal. Civ. Proc. Code

§ 708.110(d)     (providing          for    a    lien     on     non-exempt       personal
property   for    one    year       from   service       of     notice   to     appear    at

supplemental      proceedings);            735    ILCS        5/2-1402(m)        (judgment




                                            27
                                                     No.   2011AP2597



"becomes a lien" on non-exempt personal property when citation

from the clerk is served).17

                         C.    Application

     ¶53   Decade contends that because it served an order to

appear for supplemental proceedings, it has a blanket lien on

all of Collier's non-exempt personal property.     However, Decade

does not explain how it acquired this lien.      Instead, it skips

that step in the analysis and discusses perfection of its lien.

     ¶54   SB1 asserts that "neither Decade nor Keierleber had

any interest in actually recovering money from Collier."        This

view is supported by "the record[, which] suggests that Collier


     17
       Wisconsin is not the first state to face problems
regarding the idea of a common law lien arising out of
supplemental proceedings. Illinois courts were split on whether
the issuance of a "citation to discover assets," a procedure
akin to supplemental examination, created a lien, until the
legislature expressly provided for the creation of a lien.
Prior v. Farm Bureau Oil Co., 176 B.R. 485, 492 (Bankr. S.D.
Ill. 1995); see Francis Edward Stepnowski, Less Than Perfected:
Uncertainty in Illinois Judgment Lien Law, 13 N. Ill. U. L. Rev.
33, 41 (1992) (before the legislature provided for the lien,
Illinois case law created uncertainty, "whereas today's business
climate requires bright-line rules to determine priority among
creditors"). The New York legislature similarly provided for a
lien upon "secur[ing of] an order for delivery of, payment of,
or appointment of a receiver of, a debt owed to the judgment
debtor or an interest of the judgment debtor in personal
property" in order "to avoid the confusion of . . . former law."
N.Y. C.P.L.R. § 5202 (Consol. 2013) and Advisory Committee Notes
subd. (b); see Cohen, supra note 10, at 1015-17.    Finally, the
California legislature has provided for a lien on personal
property that is compatible with Article 9. See Cal. Civ. Proc.
Code § 697.510(a)    (providing judgment creditors with the
equivalent of a security interest in a debtor's personal
property when the creditor files notice of a judgment in the
state's central filing system).

                                 28
                                                                               No.    2011AP2597



evaded   service       from    SB1     for    months        and       that     Decade's       six

lawsuits were filed as a dilatory tactic."                        Associated Bank, No.

2011AP2597,      unpublished       slip      op.,    at     ¶18.         Should       we    adopt

Decade's position, we would be affirming Decade's ability to

shelter Collier's assets from SB1 and other creditors.                                        SB1

asserts that if Decade's contention were correct, by serving

Collier with an order to appear, Decade could prevent other

creditors from executing on Collier's personal property while

Decade   itself       took    no   steps     to     apply       Collier's       property       in

satisfaction of Decade's judgment.                  Therefore, as long as Decade

continued to take no action to collect, Collier would remain in

possession       of    his    personal       property,           flouting          the     "noble

proposition that debtors ought to pay."                           David Gray Carlson,

Critique    of    Money      Judgment      (Part     Two:             Liens    on     New   York

Personal Property), 83 St. John's L. Rev. 43, 44 (2009).

    ¶55     SB1's argument has a lot of merit.                          SB1 has not only

docketed its money judgment and served Collier with an order to

appear     for    supplemental         proceedings,             SB1     also       obtained    a
turnover    order      through     a    receiver       for       Collier's           identified

personal property thereby levying that property.                                Accordingly,

SB1 has a lien on that levied property that is superior to other

unsecured judgment creditors.

    ¶56     In addition, we conclude that Decade does not have the

exclusive    right     to     pursue    collection        from         Collier's         personal

property    simply      by    serving      him    with      a    notice       to     appear   at

supplemental      proceedings        because      Decade        had     not    docketed       its


                                             29
                                                                        No.    2011AP2597



judgment and proceeded in its collection efforts sufficient to

acquire a lien on any of Collier's personal property.

      ¶57      Before     concluding,      we     briefly        address        Decade's

contention       that    the   circuit    court     erroneously      exercised        its

discretion when it refused to give Decade priority over SB1 in

regard to Collier's personal property.                   Decade contends that the

circuit court should have employed its equitable powers and held

its judgment was docketed because the failure in docketing was

due to the error of the clerk.             Again, we disagree.

      ¶58      First,    if    Decade    suffered      any    damages    due     to   the

clerk's error, the legislature has provided a statutory remedy

for that error in Wis. Stat. § 806.10(3).                      Second, the circuit

court       balanced    Decade's   lawsuits      and     supplemental         proceeding

with Collier's apparent evasion of service of SB1's order to

appear and concluded that Decade's failure to docket should not

be accorded an equitable remedy.               Third, we agree with the court

of appeals that serving an order to appear for supplemental

proceedings is not the equivalent of docketing a money judgment.
"In     a    race-notice       jurisdiction      such     as    Wisconsin,       prompt

docketing       of     judgments   is    needed     to       establish    the    proper

priority of claims."           S. Milwaukee Sav. Bank v. Barrett, 2000 WI

48, ¶40, 234 Wis. 2d 733, 611 N.W.2d 448.                       Fourth, a properly

docketed judgment is required to obtain a statutory lien on real

property.       Wis. Stat. § 806.15; Builder's Lumber Co. v. Stuart,

6 Wis. 2d 356, 364, 94 N.W.2d 630 (1959).                        No less should be

required for personal property.                 Accordingly, we conclude that


                                          30
                                                                           No.   2011AP2597



the circuit court did not erroneously exercise its discretion

when it refused to grant Decade equitable relief.

                                 III.      CONCLUSION

       ¶59    We conclude that supplemental proceedings under ch.

816    are    a    discovery     tool      in     aid    of    judgment      collection.

Decade's      serving        Collier       with    an     order       to     appear     for

supplemental proceedings did not give rise to a blanket lien on

all    of    Collier's   personal         property      that    prevented        SB1   from

pursuing collection.           A judgment creditor obtains an interest in

a   judgment      debtor's     identified,        non-exempt         personal     property

superior to other unsecured creditors when it dockets its money

judgment, identifies specific personal property and levies that

property.          Levying    may    be     accomplished        by    at    least      three

different means:          (1) by executing against specific personal

property with the assistance of a sheriff; (2) by serving the

garnishee defendant in a garnishment action to seize specific

property in the hands of the garnishee defendant; or (3) by

obtaining an order to apply specific personal property to the
satisfaction of the judgment, which a creditor may do with the

assistance of a supplemental receiver.                     Wis. Stat. § 815.05(6);

Wis. Stat. § 812.01; Wis. Stat. § 816.08.

       ¶60    Here,    SB1    was    the    first       judgment      creditor      with   a

docketed money judgment to levy specific, non-exempt personal

property of Collier.            It did so by obtaining a court order to

turn   over       specifically      identified      property         to    its   receiver.

Accordingly, we affirm the decision of the court of appeals that
concluded that SB1 has priority over Decade in regard to the
                                            31
                                                                 No.     2011AP2597



specific personal property SB1 identified and levied.                    However,

insofar as the decision of the court of appeals can be read to

recognize a blanket lien in favor of SB1 that prevents other

creditors    from   pursuing      collection    from     Collier's       personal

property,   we    modify   that    decision     because    no    blanket      lien

exists.

    By    the    Court.—The    decision    of   the    court    of     appeals   is

modified and as modified, affirmed.

    ¶61     DAVID T. PROSSER, J., did not participate.




                                      32
                                                                 No.     2011AP2597.ssa


     ¶62    SHIRLEY      S.     ABRAHAMSON,         C.J.    (dissenting).            The

majority    opinion      reaches      its    erroneous      conclusion       today   by

operating in its own imaginary world, divorced from reality.

     ¶63    In the real world, our courts have recognized for the

last 150 years a judgment creditor's common-law equitable lien,

superior to other creditors, created by service of notice of a

supplementary proceeding upon a judgment debtor on the debtor's

non-exempt personal property.               In the real world, creditors and

debtors    have   relied      upon    this       judgment   creditor's    common-law

equitable lien.         In the real world, the parties in the instant

case dispute the applicability of this common-law equitable lien

to the undisputed facts.

     ¶64    In    the   world    of    the       majority   opinion,     a   judgment

creditor's common-law equitable lien and the issues raised by

the parties simply have not existed and will not exist in the

future.1

     1
       According to the majority opinion, a lien on a judgment
debtor's non-exempt personal property turns on the judgment
creditor's "levying" on non-exempt personal property after
identifying the property and docketing the judgment.  Majority
op., ¶3.

     Docketing the judgment is mentioned in only one place in
chapter 815, entitled "Execution":      Section 815.05(1g)(a)6.
provides that the execution "shall intelligibly refer to the
judgment stating," inter alia, "the time of entry in the
judgment and lien docket in the county to which the execution is
issued."

     With regard to execution, Wis. Stat. § 806.06(4) provides
that "[n]o execution shall issue until the judgment is perfected
or until the expiration of the time for perfection." (emphasis
added).   A judgment is perfected "by the taxation of costs and
the insertion of the amount thereof in the judgment."       Wis.
Stat. § 806.06(1)(c). Perfection does not relate to docketing.

                                             1
                                                                       No.    2011AP2597.ssa


       ¶65     The issue in this case as presented by the parties is

whether Decade Property obtained a common-law equitable lien on

Jack Collier's personal property superior to SB1's interest when

Decade       Property,   the     judgment        creditor,      served       Collier,   the

judgment      debtor,    with    an    order      to   appear     at    a     supplemental

examination but the clerk of circuit court failed to docket the

judgment.2

       ¶66     SB1 asserts a superior common-law equitable lien on

Jack       Collier's    non-exempt     personal        property      even      though   SB1

served       Collier    notice    of   the       supplementary       proceeding       after

Decade Property served Collier, but SB1's judgment was docketed

before Decade Property's judgment was docketed.                               The circuit

court and court of appeals agreed with SB1.

       ¶67     Rather    than    address     the       issue    of     how    a    judgment

creditor       obtains    a    common-law        equitable      lien,        the   majority

opinion       broadly     and    surprisingly           holds     that        supplemental

     Furthermore, Wis. Stat. § 815.04(1)(a) permits execution to
issue "within 5 years of the rendition of the judgment.
Section 806.06(1)(a) provides that "[a] judgment is rendered by
the court when it is signed by the judge or by the clerk at the
judge's written direction" (emphasis added).

     The circuit court and court of appeals do not always use
the words "perfecting" a judgment, "entering" a judgment, and
"docketing" a judgment as these words are used in the statutes.
       2
       The Petition for Review states the issue as follows: "Is
a creditor's right to obtain a common law Creditor's/Receiver's
Lien against a judgment debtor's personal property conditioned
upon docketing the judgment in the Judgment and Lien Docket
under Wis. Stat. § 806.10(1)?"

     The circuit court concluded, and the court of appeals
affirmed, that docketing the judgment was a prerequisite for a
common-law creditor's lien. See majority op., ¶19.

                                             2
                                                                 No.   2011AP2597.ssa


proceedings do not give rise to any lien whatsoever on any of

the   debtor's        personal       property.      "[S]upplemental     proceedings

under     ch.     816     are    a    discovery     tool   in   aid    of    judgment

collection."          Majority       op.,   ¶3.     "Supplementary      proceedings

provide a mechanism by which to obtain information in aid of

judgment collection."            Majority op., ¶27.

      ¶68   According to the majority opinion, a judgment creditor

obtains an interest in a judgment debtor's identified non-exempt

personal property superior to other unsecured creditors when the

judgment creditor (1) dockets its money judgment, (2) identifies

specific, non-exempt personal property, and (3) "levies" (by at

least one of three enumerated means) the specific non-exempt

personal property it has identified.                Majority op. ¶¶3, 23, 33.

      ¶69   The         long-recognized         judgment   creditor's        equitable

common-law lien arising from supplementary proceedings simply

does not exist in the world created by the majority opinion.

Yet in the real world, creditors and debtors have long relied on

the court's recognition of the common-law equitable lien.3                          In
writing the common-law creditor's lien out of Wisconsin legal

history,        the     majority      opinion     mischaracterizes      or    ignores

existing case law.

      ¶70   To put the majority opinion's rewriting of history and

case law in proper perspective, I first review the law regarding

the judgment creditor's common-law equitable lien arising on a

      3
       See Attorney's Title Guaranty Fund v. Town Bank, 2014 WI
63, ___ Wis. 2d ___, ___N.W.2d ___ (a judgment creditor acted
under the assumption that a common-law equitable lien existed on
the judgment debtor's property).

                                             3
                                                                     No.    2011AP2597.ssa


debtor's      personal        non-exempt         property       in         supplementary

proceedings.     I then discuss our most recent case, In re Badger

Lines, Inc., 224 Wis. 2d 646, 590 N.W.2d 270 (1999), a case that

the majority opinion in effect overrules without confronting the

doctrine of stare decisis.

       ¶71   Before I tackle these two issues, I enumerate a few

other flaws in the majority opinion (not necessarily in order of

significance), but I do not address each in great detail.

       ¶72   First, the majority opinion is confused and confusing

as it describes its holding in different ways in different parts

of the opinion.        Compare majority op., ¶¶3, 20, 33, 42, 45, 47,

48, 52, 60.

       ¶73   Second,    the     majority       opinion   entangles          the   law   on

liens on real property and personal property.                    See majority op.,

¶58;    Associated       Bank     N.A.     v.        Collier,     No.        2011AP2597,

unpublished slip op., ¶14 (Wis. Ct. App. Nov. 28, 2012).

       ¶74   Third,     "levying"     is       the   important       concept      in    the

majority     opinion,    yet     it   is   undefined.            According        to    the
majority     opinion,    a    lien    on   a     judgment   debtor's         non-exempt

personal property turns on the judgment creditor's "levying" on

the non-exempt personal property.               Majority op., ¶3.

       ¶75   Yet service of notice of a supplementary proceeding

has been characterized           by the court as an "equitable levy."

Supplementary proceeding on the debtor "operates as an equitable

levy, and creates a lien in equity upon the effects of the

judgment debtor, and every species of property belonging to [the
debtor] may be reached and applied to the satisfaction of his

                                           4
                                                             No.    2011AP2597.ssa


debts."    Bragg v. Gaynor, 85 Wis. 468, 486, 55 N.W. 919 (1893)

(emphasis added).4      See also In re Milburn, 59 Wis. 24, 34, 17

N.W. 965 (1883) (service of the notice of the supplementary

proceeding "operates as an equitable levy and creates a lien in

equity . . . ").

     ¶76    Without     discussion      or   explanation,         the    majority

opinion    ignores    case   law    describing   service     of    notice   of   a

supplementary proceeding as an         "equitable levy."

     ¶77    Fourth, the majority opinion appears to conflict with

various statutes.       Contrary to the majority opinion, a judgment

creditor need not always docket the judgment to obtain a lien

and priority on non-exempt personal property of the debtor.5

     ¶78    For   example,      a    judgment     creditor        may,   without

docketing the judgment, obtain a lien on a debtor's property by

use of garnishment.          On service of the garnishment complaint,

the garnishment lien has priority.               Wis. Stat. § 812.18.6           A

garnishee is liable as to debts due "or to become due" at the

time of service of the garnishment summons and complaint.7
     4
       See also Candee v. Egan, 84 Wis. 2d 348, 360, 267
N.W.2d 890 (1978) (service of notice of the supplementary
proceeding serves as an equitable levy on the unknown property
of the debtor "to preserve the debtor's nonexempt property for
the benefit of the specific judgment creditors . . . .").
     5
       Liens may be perfected in many different ways. The manner
in which a lien is perfected depends on both the type of lien
asserted, e.g., a judgment lien, a statutory lien, an equitable
lien, and the type of property against which the lien is
asserted, e.g., real or personal.
     6
       See also Robert A. Pasch, 12 Wisconsin Practice Series:
Wisconsin Collection Law § 17:15, at 349 (2d ed. 2006).
     7
         Wis. Stat. § 812.18.
                                       5
                                                                           No.     2011AP2597.ssa


       ¶79        The court has spoken of garnishment as an equitable

levy       upon    the     property      of   the    debtor      in    the      hands     of    the

garnishee, just as it has spoken of service of notice of a

supplementary            proceeding      as   operating        as     an   equitable        levy.

Bragg, 85 Wis. at 486.

       ¶80        Fifth,    the     majority        opinion      voices         concern     about

"blanket liens" over a debtor's non-exempt personal property.8                                    I

agree       that    issues       exist    regarding       the    scope        of   a    judgment

creditor's common-law equitable lien on a debtor's non-exempt

personal property, including a lien on after-acquired property.

By eliminating the lien entirely, the majority opinion does not

tackle       the    more     nuanced      issues     involving         the      scope     of    the

common-law         equitable      lien    created        by   notice       of    supplementary

proceedings, an issue raised by the parties in the instant case.

       ¶81        Sixth,    by    subverting        the       longstanding         rule    on     a

judgment          creditor's      common-law        equitable         lien,      the    majority

opinion       ignores         the     policy        of    this        court        to     promote

predictability,             efficiency,        and       uniformity           in    commercial
transactions.            The majority opinion does not consider whether it

should "sunburst" its opinion to maintain the predictability and

efficiency of the law governing economic transactions.9

       8
           See majority op., ¶¶3, 20, 51, 52-55.
       9
         The decision to apply a new rule of law only
       prospectively, or to "sunburst" the new rule of law,
       is driven by our attempt to alleviate the unsettling
       effects of a party justifiably relying on a contrary
       view of the law. [State ex rel. Buswell v. Tomah Area
       Sch. Dist., 2007 WI 71, ¶ 46, 301 Wis. 2d 178, 732
       N.W.2d 804]. Accordingly, in determining whether to
       apply a new rule of law prospectively instead of
       retrospectively,  we  consider  three   factors:  (1)
                                 6
                                                            No.    2011AP2597.ssa


     ¶82   Accordingly, I dissent.

                                    I

     ¶83   I   begin   by   discussing   the   case   law    on     a   judgment

creditor's     common-law      equitable       lien   in          supplementary

proceedings.

     ¶84   Since the early days of statehood, our statutes and

case law have recognized that when a judgment creditor properly

serves notice upon a debtor of a supplementary proceeding to

identify property to satisfy its judgment, the judgment creditor

obtains a common-law equitable lien on the debtor's property.10

     ¶85   The judgment creditor's common-law equitable lien has

a long robust history in our state.            It can be traced to the


     whether our holding establishes a new rule of law,
     either by overruling clear past precedent on which
     litigants may have relied, or by deciding an issue of
     first impression, the resolution of which was not
     clearly   foreshadowed;    (2)   whether  retroactive
     application would further or impede the operation of
     the new rule; and (3) whether retroactive application
     could produce substantial inequitable results. Id.,
     ¶47; see also [Kurtz v. City of Waukesha, 91
     Wis. 2d 103, 109, 280 N.W.2d 757 (1979)].

Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶45, 339
Wis. 2d 125, 810 N.W.2d 465 (footnote omitted).
     10
       See, e.g., Kellogg v. Coller, 47 Wis. 649, 656 (1879); In
re Milburn, 49 Wis. 24, 17 N.W. 965 (1883); Bragg v. Gaynor, 85
Wis. 468, 486, 55 N.W. 919 (1893); In re Badger Lines, Inc., 224
Wis. 2d 646, 654 (citing Candee, 84 Wis. 2d at 360).

     Wisconsin creditors and debtors, including both parties in
the instant case, point to the judgment creditor's common-law
equitable lien on a debtor's property created by a subpoena or
notice to appear at a supplementary hearing.      See Brief of
Intervening Defendant-Appellant at 31-39; Brief of the Co-
Plaintiff-Respondent at 16.

                                    7
                                                                 No.   2011AP2597.ssa


creditor's bill in equity.            In 1856 the Wisconsin legislature

adopted the precursor to chapter 816 of the Wisconsin Statute

governing      supplementary       proceedings11        "with    the    intent     to

substitute     supplementary       proceedings     for    the    relief    formerly

obtainable in equity by a creditor's bill."12                   The supplementary

proceedings are the "statutory equivalent of a creditor's bill

in equity at common law and follow essentially the same rules of

law."13

      ¶86    The court has routinely used the common-law principles

of the creditor's bill in equity to interpret the supplementary

proceedings     statutes.      A    supplementary        proceeding,      the   court

declared, "is a substitute for a creditor's bill in equity, and

is governed by the same rules of law in respect to the rights

and   priorities    of   parties     affected      by    the    proceeding      which

control the equitable action. . . . [T]he creditor who, after

filing his bill, obtained the first service of the subpoena upon

the judgment debtor,        thereby obtained a prior lien upon the

equitable assets of such debtor."14
      11
           Ch. 120, §§ 200-213, Laws of 1856.
      12
       Robert S. Moss, Supplementary Proceedings in Wisconsin,
23 Marq. L. Rev. 49, 49 (1939). Moss urged clarification of the
principles and practices governing supplementary proceedings.
23 Marq. L. Rev. at 58.
      13
       In re Badger         Lines,    Inc.,     224     Wis. 2d 646,      654,    590
N.W.2d 270 (1999).

     If a lien existed at common law, the mere existence of
other lien statutes does not abrogate the common-law lien.
Moynihan Associates, Inc. v. Hanisch, 56 Wis. 2d 185, 190, 201
N.W.2d 534 (1972).
      14
           Kellogg v. Coller, 47 Wis. 649, 655-56 (1879).

                                        8
                                                                  No.   2011AP2597.ssa


      ¶87    The creditor's bill in equity existed as a remedy at

equity     for   creditors     when    no   remedy     at   law   existed.15        The

creditor's       bill   in    equity   arose      to   address    the   problem     of

judgment creditors of debtors who had died.                   At common law, the

debtor's property at death no longer belonged to the debtor for

purposes    of    execution;     the     property      instead    belonged    to    the

debtor's heirs and assigns.16                   The creditor's bill in equity

allowed the creditor to reach the assets of the deceased debtor

by providing a separate action for the creditor against the

estate, heirs, or assigns of the deceased debtor.

      ¶88    Additionally, the creditor's bill in equity provided

an equitable remedy if a judgment debtor concealed assets from

the   debtor      and   the    sheriff      was    forced   to    return     with   an

execution unsatisfied, leaving the creditor with no remedy at

law to satisfy his or her judgment.17


      15
       Robert S. Moss, Supplementary Proceedings in Wisconsin,
23 Marq. L. Rev. 49, 50 (1939).

     For an extensive discussion of the creditor's bill in
equity,   see  C.C.   Langdell,   A   Brief  Survey of Equity
Jurisdiction, Part VI, 4 Harv. L. Rev. 99 (1890).
      16
       At common law, when the debtor died, the creditor was
unable to execute on the debtor's property.  Langdell, supra
note 15, at 119.
      17
        As in the creditor's bill, an appeal was made to the
      conscience of the defendant to discover upon oath
      whether he had property covered up or concealed beyond
      the reach of an execution, so in this proceeding, the
      judgment debtor is required to state, under oath,
      whether he has not property somewhere concealed, which
      should be applied in payment of his debts.

In re Remington, 7 Wis. 541, 548 (1858).

                                            9
                                                                  No.   2011AP2597.ssa


      ¶89    The common-law lien functioned as an "equitable levy"

precisely because the property could not be levied on at law.18

The   majority      opinion    gets    it     backwards    when    it   rules     that

service      of    notice     of   a     supplementary          proceeding     cannot

constitute a lien and that a judgment creditor must levy on the

property in order to establish a lien and priority.19                         Rather,

the   purpose      of   the   supplementary      proceeding       was   to   allow   a

judgment creditor to obtain a superior lien, without meeting the

statutory requirements of execution or other levy at law.

      ¶90    Our    longstanding       case    law   teaches     that   a    judgment

creditor's        service     of   notice       upon      the     debtor     of    the

supplementary       proceeding     creates      a    judgment     creditor's      lien

against the non-exempt personal property of the debtor.                        "[T]he

filing of the bill and a bona fide attempt to serve the subpoena

give the complainant priority of right to the equitable assets

of the judgment debtor . . . ."20

      ¶91    The rule that a lien superior to other creditors is

created from the time of the judgment creditor's service of




      18
           Langdell, supra note 15, at 109-118).
      19
           Majority op., ¶3.
      20
           Kellogg v. Coller, 47 Wis. 649, 655, 3 N.W. 433 (1879).

                                         10
                                                                               No.    2011AP2597.ssa


notice of the supplementary proceeding upon the debtor has been

continuously reiterated and reinforced by this court.21

       ¶92        In In re Milburn, 59 Wis. 24, 34, 17 N.W. 965 (1883),

the    court        stated      that      the        service       of    the    notice       of    the

supplementary           proceeding        "operates          as    an    equitable         levy,   and

creates       a    lien    in    equity     upon          the     effects      of    the    judgment

debtor":

       As   in  a   creditor's   bill,  so  in   supplementary
       proceedings:   the commencement of them by the service
       of process or notice operates as an equitable levy,
       and creates a lien in equity upon the effects of the
       judgment debtor, and every piece of property belonging
       to him may be reached and applied to the satisfaction
       of his debts.
       ¶93        The   Milburn      holding is echoed in later cases.                              In

Bragg, 85 Wis. at 486, the court cited Milburn and reiterated

that        service       of    process         or        notice    of    the        supplementary

proceeding         serves       as   an    equitable            levy     on    all     a    judgment

debtor's property and creates a lien in equity on the judgment

debtor's property:

       When commenced by service of process or notice, [the
       supplementary proceeding] operates as an equitable
       levy, and creates a lien in equity upon the effects of
       the judgment debtor, and every species of property
       belonging to him may be reached and applied to the
       satisfaction of his debts.


       21
       The majority opinion at ¶40 relies on Knox v. Webster, 18
Wis. 426 (1864), for the rule that "[p]ersonal property shall be
bound from the time of its seizure on execution."           This
declarative statement is true, but it does not mean that seizure
is always necessary to create a lien. The Knox case dealt with
two creditors who attempted to seize the same property.      The
court held that executions should be levied according to the
order in which the sheriff received the executions.

                                                     11
                                                                No.    2011AP2597.ssa


       ¶94     Kellogg v. Coller, 47 Wis. 649, 3 N.W. 433 (1879), is

also        instructive.        The   majority     opinion       cites      Kellogg

approvingly but views the case as establishing the rule that a

lien's perfection requires "the appointment of a receiver, who

then applied the debtor's specified personal property to the

judgment debt."        Majority op., ¶33.22

       ¶95     The   majority    opinion's    commentary        on     Kellogg    is

contrary to the facts and reasoning of Kellogg.

       ¶96     In    Kellogg,   two   judgment     creditors         attempted    to

satisfy their judgments against a debtor.                 The first creditor,

Kellogg, obtained an order of a supplementary proceeding and

served the order upon the debtor.             Due to a scrivener's error,

the affidavit of the sheriff was defective and service of notice

of    the     supplementary     proceeding   was    not   completed.          Thus,

Kellogg did not appoint a receiver, secure a turnover order, or

identify specific property of the debtor.

       ¶97     The second creditor, Coller, instituted supplementary

proceedings against the debtor and served the debtor with notice
of the proceeding.           The debtor appeared and disclosed a life

insurance       policy.         Subsequently,      the    court       commissioner

appointed a receiver for the assets of the debtor identified at

the    hearing.        The   debtor   then   assigned     all    his    non-exempt

personal property to the receiver.




       22
       The summary set forth in the majority opinion at ¶33 does
not appear in the text of Kellogg v. Coller, 47 Wis. 649, 656, 3
N.W. 433 (1879).

                                        12
                                                                      No.    2011AP2597.ssa


       ¶98   The first creditor had a receiver appointed after the

second creditor's receiver took possession of the property of

the debtor.

       ¶99   The   first    creditor        completed       none     of     the    majority

opinion's requirements for obtaining priority on the debtor's

property:    no    statutory       levy,       no    execution,      no     receiver,      no

specification or identification of property before the second

creditor acted.      The second creditor in Kellogg completed all of

the majority opinion's requirements for obtaining priority on

the    debtor's    property       prior    to       the   first     creditor:      she   had

identified specific property; a receiver had been appointed and

turnover     required;      and     the     debtor's        property        was    properly

executed against.

       ¶100 If the majority opinion's interpretation of                             Kellogg

were    correct,    that    a   creditor        cannot      obtain     a    lien    on   the

debtor's     personal      property       by    mere      service    of     notice    of    a

supplementary proceeding, the first creditor should have lost.

       ¶101 Yet in Kellogg, the first creditor won.                          The Kellogg
court   explicitly      rejected      the      reasoning      the    majority       opinion

adopts in the present case.           The Kellogg court stated:

       As in a creditor's suit the filing of the bill and a
       bona fide attempt to serve the subpoena give [the
       first creditor] priority of right to the equitable
       assets   of  the   judgment debtor,  so,  under  the
       circumstances of this case, the bona fide attempt to
       serve the order issued by the commissioner at the
       instance of [the first creditor] must be held to
       confer upon them like priority of right over [the
       second creditor], although the order obtained by her
       was served before service of [the first creditor's]
       order was perfected.
Kellogg, 47 Wis. at 656 (emphasis added).
                                13
                                                                No.    2011AP2597.ssa


       ¶102 In other words, the Kellogg court gave priority over

the debtor's personal property to the first creditor, based on

the first creditor's bona fide attempt to serve the debtor in

the    supplementary   proceeding.    It     determined      that       the   second

creditor's "proceeding is inoperative to give her a prior lien

on the equitable assets of the judgment debtor."                       Kellogg, 47

Wis. at 657.

       ¶103 The   longstanding     rule    that      the   perfection         of   the

creditor's lien depends on "first service of the subpoena upon

the    judgment   debtor"    was   applied      in    Kellogg     to     "give     the

complainant priority of right to the equitable assets of the

judgment debtor."      Kellogg, 47 Wis. at 656.

       ¶104 Kellogg stands in direct contradiction of the majority

opinion's assertion that "service of an order to appear for

supplemental proceedings will not create an interest that is

superior to the interest of a docketed judgment creditor who has

levied specific personal property of the debtor."                     Majority op.,

¶48.      Under   Kellogg,     service     of     notice    of        supplementary
proceedings creates a superior interest in a judgment debtor's

property.

       ¶105 The court has interpreted Kellogg as I do.                   In Candee

v. Egan, 84 Wis. 2d 348, 360, 267 N.W.2d 890 (1978), the court,

citing Kellogg, reiterated that "[a] judgment creditor who first

begins supplementary proceedings against a particular judgment

debtor obtains an equitable lien upon the debtor's nonexempt




                                     14
                                                                         No.      2011AP2597.ssa


property that        is     prior    to    the     equitable     lien        of    a    judgment

creditor who commences a supplementary proceeding thereafter."23

     ¶106 The same rule of law was confirmed in In re Badger

Lines, Inc., 224 Wis. 2d 646, 590 N.W.2d 270 (1999).                                   The court

stated     that      it    is    service      of    notice     of      the     supplementary

proceeding upon the debtor by which a judgment creditor perfects

a common-law equitable lien on the non-exempt personal property

of the debtor.            Badger Lines, 224 Wis. 2d at 658.

     ¶107 I now examine Badger Lines.

                                              II

     ¶108 The         majority       opinion       contorts      and    distorts          Badger

Lines     to   reach       its   result,      changing     the      baseline        rule    that

Badger Lines reiterated and upon which debtors and creditors

have relied.

     ¶109 The question in Badger Lines was presented to this

court     by   the    federal       Seventh      Circuit     Court     of     Appeals      as   a

question of state law necessary to resolve a federal bankruptcy

case.24        The following is a rough timeline of the events in
Badger Lines:



     23
       Citing Candee, 84 Wis. 2d at 360, and Alexander v. Wald,
231 Wis. 550, 286 N.W. 6 (1939), Robert Pasch writes: "[A]
judgment creditor who first begins a supplementary proceeding
against a debtor obtains an equitable lien on the debtor's non-
exempt property that is senior to any judgment creditor who
subsequently commences a supplementary proceeding."      Pasch,
supra note 6, § 16:13, at 329.   See also Pasch, supra note 6,
§ 17:15, at 349.
     24
       See Matter of Badger Lines, Inc., 140 F.3d 691 (7th Cir.
1998) (certifying a question of Wisconsin state law for
resolution by the Wisconsin Supreme Court).

                                              15
                                                             No.    2011AP2597.ssa


• October 18, 1991: A judgment of $82,120.26 was entered

  in    favor   of      Emerald     Industrial        Leasing       Corporation

  against Badger Lines, Inc. for services rendered and

  unpaid.

• October 21, 1991: Emerald Industrial's judgment was

  docketed.

• October    30,     1991:       Emerald         Industrial      served       Badger

  Lines    with      an    order       directing      it    to     appear      at   a

  supplementary hearing pursuant to Wis. Stat. § 816.03

  and     enjoining       Badger       Lines       from     transferring        its

  assets.

• December 17, 1991: The court commissioner appointed a

  supplementary           receiver           on     behalf         of        Emerald

  Industrial; issued a "turnover" order that instructed

  Badger Lines to turn over its assets; and enjoined

  Badger Lines from transferring its assets.

• February 11, 1992: Badger Lines filed for Chapter 7

  bankruptcy       in     the    Bankruptcy        Court    for     the      Eastern
  District of Wisconsin.

• March 1992: The receiver filed a proof of claim in

  bankruptcy asserting a receiver's lien on behalf of

  the Emerald Industrial.

• April    1995:        The     Chapter      7    trustee    issued       a    final

  report    distributing           the    remaining        assets       of    Badger

  Lines;     the     receiver          and       Emerald    Industrial         were

  treated as unsecured creditors.



                                  16
                                                                   No.   2011AP2597.ssa


       ¶110 The       federal     bankruptcy      and    district         courts    had

determined that Emerald Industrial had a common-law equitable

lien on the debtor's property.25               Thus, the federal court asked:

"Does Wisconsin law require that a lien obtained by a judgment

creditor       who   institutes     supplementary       proceedings       under    Wis.

Stat. § 816.04 be perfected, and if so, how is the lien to be

perfected?"26

       ¶111 The key dispute in the case was whether any additional

action besides notice to the debtor was required to perfect

Emerald Industrial's common-law equitable lien on Badger Lines'

assets.       Emerald Industrial argued that perfection of its lien

on    Badger    Lines'    assets    occurred     upon    service     of    notice    to

Badger Lines of the supplementary proceeding.                       The bankruptcy

trustee      argued,     however,    that      perfection     of    the     lien    was

accomplished either by the appointment of a receiver or the

issuance of a turnover order.27

       ¶112 If       Emerald    Industrial     were   correct      and    service    of

notice of the supplementary proceeding provided perfection of
the lien, then it would have priority over other creditors.                          If

the    bankruptcy       trustee    were   correct       and   Emerald      Industrial

       25
       See In re Badger Lines, Inc., 199 B.R. 934, 937-38
(Bankr. E.D. Wis. 1996) (recognizing the existence of the lien
created by supplementary proceedings); In re Badger Lines, Inc.,
1996 WL 33364962 (E.D. Wis. Mar. 14, 1996) (treating the common-
law lien as already in existence and ruling only on the question
of perfection of the lien).
       26
            Matter of Badger Lines, Inc., 140 F.3d 691, 699 (7th Cir.
1998).
       27
            In re Badger Lines, 224 Wis. 2d 646, 652, 590 N.W.2d 270
(1999).

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needed to take steps in addition to service of notice, then

Emerald Industrial's lien would have been perfected within the

90-day preference period in bankruptcy and could be avoided.

       ¶113 When    Badger    Lines    was   served       with   notice     of    the

supplementary      proceeding,   the    judgment     creditor      did    not    know

what    property     Badger   Lines    held.        The    "specific       personal

property" of Badger Lines was not identified until December 17,

1991, when the turnover order was issued.

       ¶114 Nevertheless, the Badger Lines court held that Emerald

Industrial obtained and perfected an equitable lien on October

30, 1991, the date of its service of notice of the supplementary

proceedings.

       ¶115 The     Badger    Lines    court    explicitly         rejected       the

bankruptcy trustee's argument that appointment of a receiver or

a turnover order were necessary to perfect a judgment creditor's

common-law equitable lien on the defendant's property:

       [R]equiring an additional step beyond service in order
       to obtain a superior lien removes any incentive for
       negotiation and settlement between the creditor and
       the debtor. . . . . Such imposed protraction benefits
       no one, wastes the parties' time and money, and
       burdens   the  courts   with  potentially  unnecessary
       hearings and proceedings.
Badger Lines, 224 Wis. 2d at 660.28

       ¶116 Badger    Lines   concluded      that   nothing      in    addition    to

service of notice to the debtor of a supplementary hearing was

required to perfect Emerald Industrial's common-law equitable

lien over Badger Lines' personal property:                 "Wisconsin law does


       28
            Id. at 660.

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                                                         No.   2011AP2597.ssa


not require a creditor to take additional steps to perfect a

receiver's lien beyond service on the debtor."29

     ¶117 Although     the   majority     opinion   frequently      cites   to

Attorney Pasch's treatise on collection law in Wisconsin,30 the

majority    opinion   conveniently    fails   to    reveal   that   Attorney

Pasch disagrees with the majority opinion's characterization of

Badger Lines.    Pasch explains Badger Lines as I do:

     The Wisconsin Supreme Court, In re Badger Lines, Inc.,
     224 Wis.2d 646, 590 N.W.2d 270 (1999), held that
     service upon the debtor of an order to appear at a
     supplemental examination under Chapter 816 establishes
     at the time of service a lien in favor of the creditor
     without requiring the creditor to take additional
     steps to perfect the lien. The court determined that a
     creditor who initiates a supplemental proceeding in
     Chapter 816 must not do anything more than serve the
     debtor with notice to appear at the supplemental
     examination so as to obtain a superior lien that
     cannot be overcome by another creditor. The court
     rejected arguments that, to avoid a secret lien, some
     additional action should be required of a judgment
     creditor. The court also rejected arguments that the
     lien should not arise until a supplemental receiver is
     appointed or the court issues a turnover order as to
     the debtor's assets; the court held that the lien
     arises at an earlier stage, when the judgment debtor
     is served with the order to appear at the supplemental
     examination. See Holton v. Burton, 78 Wis. 321, 47
     N.W. 624 (1890). Although the Badger Lines case
     references the lien as a "receiver's lien," the
     decision appears to have broader application to the
     lien of a judgment creditor pursuing supplemental
     proceedings.
Pasch, supra note 6, § 16:13 at 330-31 (emphasis added).




     29
          Id. at 661 (emphasis added).
     30
          See, e.g., majority op., ¶¶24, 28.

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                                                               No.    2011AP2597.ssa


     ¶118 Unlike       Pasch,   the    majority     opinion    resurrects       and

adopts    the   losing   party's      argument     in     Badger     Lines,    while

professing to follow the holding of Badger Lines.31

     ¶119 Thus, the majority opinion blithely overturns Badger

Lines     and   150    years    of    Wisconsin     jurisprudence,           leaving

creditors and debtors unsure of their rights.                      I cannot join

such an undertaking.

     ¶120 For the foregoing reasons, I dissent.

     ¶121 I     am    authorized     to    state   that    Justice     ANN    WALSH

BRADLEY joins this dissent.




     31
       The majority opinion asserts that in Badger Lines, the
court held that "liens arise in specifically identified, non-
exempt personal property when that property is levied."
Majority op., ¶44. This is flatly wrong. In Badger Lines, the
creditor Emerald Industrial had no knowledge of Badger's assets
at the time it served notice upon Badger of the supplementary
proceeding,   but    it   nonetheless   perfected   its   lien.
Additionally, the Badger Lines court specifically refused to
comment on the issue of levy (to the extent that "levy" means
possession of the property).   Badger Lines, 224 Wis. 2d at 658
n.5.

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