Case 2018CV003122 Document 562 Filed 05-10-2023 PDF
STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY
Vs. Case No. 18CV3122
JAMES FETZER, et al.,
(PROCEEDINGS WERE HELD VIA ZOOM VIDEO CONFERENCE)
DATE: March 17, 2023
BEFORE: The Honorable FRANK D. REMINGTON
PROCEEDINGS: Garnishment Hearing
APPEARANCES: RANDY J. PFLUM and EMILY M.
FEINSTEIN, Attorneys at Law,
Quarles & Brady, Madison,
Wisconsin, and JACOB S. ZIMMERMAN,
The Zimmerman Firm, St. Paul,
Minnesota, appeared on behalf of
JAMES FETZER, Defendant, appeared
JANICE FETZER also appeared.
ANN M. ALBERT, RMR, CRR
P R O C E E D I N G S
THE COURT: This is 18 CV 3122, Leonard Pozner
versus James Fetzer. I see Mr. and Mrs. Fetzer here
both appearing by Zoom. May I have the appearance for
the remaining people on this call?
MR. PFLUM: Good morning, your Honor. Attorney
Randy Pflum of Quarles & Brady appears on behalf of
plaintiff Leonard Pozner.
MS. DAVENPORT: Good morning, your Honor.
Andrea Davenport appears on behalf of State Bank of
MS. FEINSTEIN: Good morning, your Honor.
Attorney Emily Feinstein, and I’ll also — from
Quarles & Brady also on behalf of the plaintiff, and
I’ll also make an appearance for Attorney Jacob
Zimmerman, who’s also here on behalf of plaintiff.
THE COURT: Welcome, everyone. Thank you, Ms.
Davenport, for logging in. I don’t think — let’s
see. Mr. Pflum, are you going to do most of the
MR. PFLUM: Yes, your Honor.
THE COURT: I don’t think that the State Bank of
Cross Plains is really an issue in this because the
amount of money is below $5,000. The focus of today’s
hearing and the objection of the creditor to the
debtor’s answer was on the UW Credit Union where
apparently the retirement funds and Social Security
funds are deposited. Is that right, Mr. Pflum?
MR. PFLUM: Yes, your Honor.
THE COURT: Do we need Ms. Davenport? I’m sure
she’s got a million things to do on St. Patrick’s Day.
MS. DAVENPORT: Yes, your Honor. I don’t need
to stay on. I was joining out of an abundance of
caution. But my understanding was the same. So I
certainly don’t need to delay the proceedings or
distract anybody if my client is not gonna come up at
THE COURT: You are welcome to stay on. It’s an
open and public proceeding. But you’re certainly
welcome to take your leave. Nobody, I think — my
understanding is that neither party — well,
Mr. Fetzer, do you want the State Bank of Cross Plains
to remain in this hearing?
MR. FETZER: No. That’s fine, your Honor. Not
THE COURT: Do you agree, Mr. Pflum?
MR. PFLUM: Yes, your Honor. I agree.
THE COURT: Thanks, Ms. Davenport. You can stay
or go, whatever you choose.
MS. DAVENPORT: Thanks, everyone. Have a great
day. I’ll log off.
THE COURT: All right. So let me just recap
where we are here this morning on this matter.
The plaintiff, we’ll call the creditor, is
seeking funds from the defendant, the debtor, and it
is seeking funds through the garnishment proceedings
set forth in Wisconsin Statutes as to three accounts.
Two of those accounts are not germane to the hearing
this morning, the creditor not objecting to the
The question for the Court this morning is what
to do, if anything, with the debtor’s answer with
regard to the funds in the UW Credit Union. I
understand the issue is actually fairly clear and I
Mr. Pflum, I did research. This is not an area
in which I’m intimately familiar, but I have concluded
the following legal principles. And you can correct
me if I’m wrong.
It is, I believe, generally accepted, if not
undisputed, that Social Security money to an
individual is not subject to garnishment. Do you
MR. PFLUM: Yes, your Honor. We would agree on
THE COURT: Second, that other retirement funds,
401k or pensions, may be subject to garnishment. Mr.
Pflum, that’s your position?
MR. PFLUM: Yes, your Honor. But if I may —
THE COURT: Please.
MR. PFLUM: It’s — we certainly recognize that
Dr. Fetzer has asserted certain exemptions that may
apply, and we acknowledge and agree that Social
Security income is — under 407a of the United States
Code is not subject to garnishment.
However, the way his answer — we just simply
could not tell from what was filed whether or not the
other retirement — other retirement funds are
commingled with those Social Security benefits where
we can’t tell exactly what Social Security benefits
which are subject to the exemption and what other
retirement benefits that he receives, which certainly
may not be subject to the exemption.
And I will note that similar to tax exemptions,
the burden of proof is on the party seeking the
exemption. And I will also note that since opening
his GiveSendGo account, which I believe is
Dr. Fetzer’s legal defense donation account, it
appears that he’s received approximately $17,865.
THE COURT: How about we make — Mr. Pflum, I
understand the burden is on the debtor, but in the
interest of real expediency, rather than — hear from
Ms. Fetzer, who Mr. — Dr. Fetzer says is most
knowledgeable about the monies. I think a succinct
set of questions will get right to the heart of the
matter, if you’re willing.
Ms. Fetzer, would you please raise your right
Do you solemnly swear the testimony you’re about
to give will be the truth, the whole truth and nothing
but the truth, so help you God?
MS. FETZER: I do.
THE COURT: Ms. Fetzer, I’m gonna allow Mr.
Pflum to ask you a set of questions. And I just want
to give you background.
I think everyone is in agreement Social Security
funds are not subject to garnishment. It appears that
the UW Credit Union is a depository for more than
Social Security funds. It appears. We don’t know for
sure. That’s the purpose of today’s hearing. Or any
other source of funds. Mr. Pflum is gonna ask you
some questions that will allow him and the Court to
more accurately define the exemptions available under
the law for you and your husband in the UW Credit
Union account. I’ll let him ask you some questions.
You can answer them to the best of your ability, fine.
And then I’ll let you tell me what additional
information you would like me to consider on the
The ultimate question on this hearing is whether
I should allow or overrule the objection and allow
this creditor to take monies out of the UW Credit
Go ahead, Mr. Pflum, with your
direct-examination to Ms. Fetzer.
Ms. Fetzer, could you state your full name,
MS. FETZER: Janice Elaine Fetzer.
THE COURT: All right. Mr. Pflum.
MR. PFLUM: Good morning. Thank you, your
JANICE ELAINE FETZER,
called as a witness, having been first duly
sworn, was examined and testified as follows:
DIRECT-EXAMINATION BY MR. PFLUM:
Q Good morning, Mrs. Fetzer. Thank you for appearing
today in today’s — thank you for appearing this
morning in today’s hearing.
Do you remember back, you and I, we had — I took
your supplemental exam with Dr. Fetzer I believe in
March of 2020, which seems to be a long time ago now.
Are you — are you aware of your husband’s legal
defense fund with GiveSendGo?
A I know he has one.
Q And how are those monies paid to Dr. Fetzer?
A He receives through the mail. People send him a
MR. FETZER: If I might interject, State Bank of
Cross Plains is the recipient, your Honor.
THE COURT: Dr. Fetzer, this is your wife’s turn
here this morning, and she’s the one that’s going to
talk. And if you want to testify later, you’ll have
that opportunity. But let her speak.
MS. FETZER: I know he has an account. People
send him a check, and he will deposit it in that
account. But I have — he takes care of that
completely by himself. I don’t do anything with that
THE COURT: Okay. Dr. Fetzer — Dr. Fetzer, no
whispering to your wife in her ear. She’s doing the
best she can to answer the questions.
Go ahead, Mr. Pflum.
MR. PFLUM: Thank you, your Honor.
Q Have you — do you know where the funds for that legal
defense fund were made? Do you know where he —
A The State Bank of Cross Plains, I believe.
Q Do you know when he receives those monies?
Q When. Yes.
A Whenever anyone sends him a check.
Q Have you ever performed accounting of the funds
deposited in the State Bank of Cross Plains?
A I keep a record of the people who send him money.
Q And do you know how those funds were spent?
A He uses them for his legal defense. He pays the
lawyer and he pays to do his filings.
Q But he’s — he currently doesn’t have an attorney
right now; correct?
A He has — he has an attorney, but we’ve not been going
to him, his past attorney.
Q Has Dr. Fetzer — since Dr. Fetzer is primarily
involved with handling the GiveSendGo, we’ll just call
it the legal defense fund, are you aware of any
deposit of those funds in the UW Credit Union
accounts, account or accounts?
A The only time anything from that account has gone into
the UW account is he has a lot of expenses for the
lawsuit. And he — the legal defense fund has no
credit card or debit card. It only has a checking
account. So when he’s done xeroxing to send filings
or he’s paid, you know, all this kind of stuff, he
puts it on our credit card. And then some of the time
he has paid me back out of the defense fund to pay for
the stuff for the case. Only for the case.
Q How much?
A I can give you different times that he’s given me
Q Yes. Please do.
A Okay. I’ve just done the taxes. And all the expenses
that he has done for the year come out to $3,239.25.
Now, he has given me — he gave me — one time he
gave me $391.05.
Q Do you know when that was?
A Um, May 6th.
Q Of 2022?
Q And then so do you deposit — so when Dr. Fetzer gives
you — gave you the $391.50, what did you do with that
money? Did you deposit it?
A I put it in — I put it in the retirement account
because that’s the account that I pay my UW credit
card bill out of.
Q So is it — am I understanding — so is it fair to say
that, yes, certain funds of the legal defense fund has
trickled into the UW Credit account?
A Money he has owed me to pay for the our UW credit card
he has given me back, and I have paid that money to
the credit union account.
Q Do you deposit any other funds into the UW Credit
A Well, any funds I have for — all I — okay. The only
money we get to live on is some retirement money of
$1,700 a month and our Social Security. Now, I put
other money — I put a federal tax return I put in the
account. My daughter and I go to Costco, and I have a
card; she doesn’t. When I — when she puts it on my
card, she writes me a check. I deposit that. I
deposit money from our retirement minimum distribution
account. And then my one daughter sent me birthday
money, and I put that in my account. Mainly tax
returns, that kind of stuff. No — we — no other
income to go into those two accounts. And Jim gives
me — he pays me back what he has spent for the legal
defense that he has put on our credit card so that I
can use it to pay off the credit card. Otherwise, I
wouldn’t be able to pay off the credit card very
Q Can you tell us exactly how much he has paid for the
A To me?
Q Overall, either to you or, if you know — if you know,
overall, and then I’ll ask a follow-up question to
So do you know how much he has paid his attorneys
out of the legal defense?
A No, I don’t. I don’t do that account. I have nothing
to do with it. He takes care of it completely. I
have — I have just the amounts he has given me to pay
me back for, like, FedEx. He spent — several times
he xeroxed and sends through FedEx, and he puts it on
the credit card, and then he gives me the money so I
can pay the credit card bill.
I gave you the $391.
Q And that’s — that’s —
A That’s not the only one.
Q Can you please — yes. Can you tell us exactly how
much Dr. Fetzer has paid you —
Q — for the legal defense, not this year, I mean over
the course of the — since he has opened it?
A Oh, okay. I have another one for September 2nd of
2022 was $94.96. And then 12-1 of 2022 he gave me
$1,000. That was — I have all the FedEx bills that
he gave me to pay for.
Let’s see. I’m trying to find — okay. He did
give me from another account that he — I deposited in
3 — March 3rd of 2022, he gave me $180, which was
also FedEx. I believe those are the only ones he gave
me out of the three — I guess there were three of
them or four of ’em that he gave me to pay for the —
for his legal stuff.
Q Thank you. Circling back, you said tax returns get
deposited into that account as well. How much was
your tax return?
A My tax return? Ah, let’s see. Wisconsin, $1,486.
And federal I think we had to pay $521. We didn’t get
any money back on that one, on the federal.
Q And sorry. I know I’m jumping around, Ms. Fetzer, and
I apologize. Has Dr. Fetzer paid you back for any
other expenses that you have deposited in the UW
Credit Union account?
A Yes. He did pay me back for a computer that he
bought, a laptop computer. It was $1,400.
A And I think — I think that’s — that’s all.
A I wrote down everything that — all the deposits I
have made that was not retirement money or Social
Security money, and those are the ones that Jim paid
me for. Nothing else.
Q And what’s — what’s the total? I mean, what’s the
grand, I guess the end, you know, end total of the
monies that Dr. Fetzer has paid you that are — that
you’ve deposited into the UW Credit Union account that
is not — that is not Social Security money-related?
A I’m sorry. I don’t understand. You mean of the total
I gave you just now?
Q Yes. Did you —
A I haven’t totaled it. I just wrote it out on my
A So it was $391.94, $1,400 for the computer, and $180
for xeroxing also. So I have, you know, the
retirement account and then the Social Security
account, the two accounts, and we have no other
Q So you said that you get approximately $1,700 from
Q Is that from — is that money from a 401k that then
gets deposited into your — into this account, into
the UW account?
A It’s an IRA, I believe.
Q Okay. But the UW Credit — the UW Credit Union
account that you deposit the $1,700 into, that is not
A I believe it was. He had a retirement — well, I’m
not sure. We had a retirement account through
TIAA-CREF, and we transferred some of it, most of it,
into Schwab, and it was — I think it was an IRA,
before tax, money that was in his account before he
paid federal and paid any taxes on it. So anything
taken out we pay taxes on.
Q So you have an IRA — to your knowledge, you have an
IRA account at Schwab?
A Yes. I think it’s an IRA.
Q And that’s separate — that is entirely from the —
from your UW Credit Union account?
A Yes. Schwab — Schwab sends us a check the first of
every month for $1,700. We live on that with Social
Q And then looking solely at the UW Credit Union
account, I believe there’s 11,700-some-odd dollars in
A No. I can give you the exact amount.
Q We’re — particularly for this hearing, we are
concerned with once a garnishment is filed, it’s like
a snapshot of your account, and this garnishment would
be subject to that $11,700 that UW Credit Union filed
an answer on.
A Okay. Well, we don’t have that — we don’t have that
amount in now.
A I think we have about $8,000, maybe, a little over
$8,000. Our garage door went out, had to get a new
garage door opener for $500. My dishwasher went out
the same day. I had a $600 dishwasher.
THE COURT: Welcome to the joys of home
ownership, Ms. Fetzer. We’re less concerned with your
bills like the rest of us.
Any other questions, Mr. Pflum?
MR. PFLUM: No, your Honor. No, your Honor.
Not at this time.
THE COURT: Seems to me that the whole purpose
of this inquiry, Mr. Pflum, is to determine whether
the nonexempt funds are fairly traceable in the UW
Credit Union. I’m not sure they are. What is your
position, now having heard from Ms. Fetzer as to
monies? I do know — I think I was unaware that
there’s now an additional account from Schwab that’s
not the subject of this garnishment proceeding. What
are you asking me to do, if anything, this morning?
MR. PFLUM: Your Honor, what we would like is
the account history for the UW Credit Union account
that we can review it — so that we can review it to
determine, yes, this is all Social Security subject to
the exemption whereby we would remove, we would lift
But according to Dr. — according to Ms.
Fetzer’s testimony today, it appears that these —
that these funds are pretty — are regularly
commingled with other payments that she receives from
Dr. Fetzer, payments that she receives as a
reimbursement from her daughter, tax returns that get
deposited into the UW Credit —
THE COURT: Okay. So you want her bank records
from UW Credit Union.
MR. PFLUM: Yes, your Honor.
THE COURT: For what period of time?
MR. PFLUM: We would ask 30 days. For what
period of time as a look-back?
THE COURT: Right.
MR. PFLUM: Six months from — six months of
THE COURT: Ms. Fetzer, so the purpose of
today’s hearing is to determine, they were asking me
to basically take part of your UW Credit Union
Here’s what I know so far. In the UW Credit
Union account, you have Social Security monies going
in. You have monies that transferred over from State
Bank of Cross Plains. And then you have this monthly
distribution of the Schwab account.
Ultimately, the debtor has the obligation of —
well, I think you’ve established, it’s undisputed,
these funds are all commingled. Whether they’re
fairly traceable, the term “fairly traceable” means,
like, we want to protect the integrity and sanctity of
your Social Security funds because the creditors can’t
take those. The question is is whether in almost a
forensic look-back, the Court or the creditor would be
able to determine, or how would it determine that what
money is going into your account are fairly traceable.
The burden would rest on you.
The creditor says for purposes of today’s
hearing, all they want now is 30 days back on your UW
— what did you say?
MR. PFLUM: So sorry, your Honor. If I —
sorry, your Honor. If we could have all of 2022
payment — deposit history for the UW Credit Union
account, and we would have — we would get 30 days to
review all those deposits — deposit history, and then
perhaps we could set this hearing — if I may, perhaps
we could set this hearing over, and we would — by
that set-over date we would either withdraw our
objection or say, your Honor, here are the — here are
the funds we believe are subject to our garnishment.
THE COURT: Did you ask the Fetzers for these
documents in connection with a supplemental
MR. PFLUM: We did, your Honor. But that was
thee years ago.
THE COURT: Well, I’m not sure under the
garnishment laws, we sort of, once we grab ’em by sort
of the pants leg we can hang on to ’em. I mean, I
think you have the right to ask for this information
in a supplemental examination and then with that
information commence another garnishment proceedings.
Ms. Fetzer, do you — do you still — because I
have money in the UW Credit Union. Most of it’s
electronic. Do you get these records from UW Credit
Union on paper still?
MS. FETZER: Yes, I do. I do have two accounts.
The retirement money goes into a separate account from
the Social Security money. I do not have them
commingled, those two.
THE COURT: Okay. I did not know that. Did you
know that, Mr. Pflum?
MR. PFLUM: No, I did not know that, your Honor.
MS. FETZER: I have — I have the $1,700 goes
into one account and the Social Security money goes
into a different account. So I have two accounts. I
keep the retirement money separate from the Social
Security money. We were told to do that when we got
the lawsuit against Jim.
THE COURT: So in the retirement account, that’s
the account that you deposit your Schwab monthly
MS. FETZER: Yes.
THE COURT: Is the only money going into that
account the monthly payment from Schwab?
MS. FETZER: As far as income, yes. I put in
money from my daughter. I mean, what am I gonna do
with it when she pays me a check? Do I need a third
THE COURT: Well, again, the question in
garnishment, Ms. Fetzer, so you understand, is we’re
trying to trace money to make sure nobody’s taking
your Social Security funds. So far, I don’t know what
the answer is, but — and there’s nothing wrong with
commingling. Everybody does that. The question is is
whether in a retrospective analysis we can figure out
how to — what money is coming from where and into
Mr. Pflum, I think — well, first of all, Ms.
MS. FETZER: Yes.
THE COURT: — well, actually, Mr. Pflum, I’m
not sure you really need the bank records for the,
well, I’ll call it the commingled UW Credit Union
account. I think if in fact Ms. Fetzer deposits the
Schwab in a separate, distinct account, certainly then
we’re not worried about commingling the Social
Security money. And I don’t know that you have that
information from the UW Credit Union. Did they
disclose that they had two separate accounts?
MR. PFLUM: I don’t believe — let me just
quickly pull up their answer, your Honor.
They said that they have a savings and checking
too, and then they don’t provide any other information
other than that they’re holding gross assets, gross
value of assets of $11,305.72. And then UW Credit
Union says that there is an exemption of $11,798. But
once again, we — our position is that those — that
that exemption, while that may apply, we think that,
you know, as I argued before, as I argued earlier, we
believe those funds, that there’s commingling with
those funds that may be —
THE COURT: Mr. Pflum — I’m sorry to rush you;
I do have a 9:30 — what are you asking me to do this
MR. PFLUM: Once again, your Honor, we would
like Dr. Fetzer — we would like the bank records for
the UW Credit Union account so that we can review them
and either, again, withdraw — either withdraw our
objection to the answer —
THE COURT: Fine. Ms. Fetzer, this is — I’m
not gonna make any decision today. If you are
willing, Ms. Fetzer, would you please make a photocopy
of your UW Credit Union bank statements. Now, those
statements should have all your accounts, maybe two
accounts or three accounts.
MS. FETZER: It has two. It has both.
THE COURT: Could you then please make a copy of
the last, let’s say, 12 months starting with the most
recent account, so not all of 2022, but just give me
— if they come monthly, give me the last 12 that you
have, not give me, but send those to Mr. Pflum.
MS. FETZER: I will. But now, on my bank
statement, when the bank sends ’em, it just gives a
deposit of so much money. It doesn’t say where it’s
THE COURT: Don’t worry about it. That’s
Mr. Pflum’s problem to interpret that. Then Mr.
Pflum — Ms. Fetzer, please provide those to Mr. Pflum
in the next two weeks. Today is the 17th. I’m gonna
ask that you send those to him no later than the end
of the month, March 31st.
MS. FETZER: Okay.
THE COURT: I’m gonna then continue this
hearing. Mr. Pflum, then after you receive these
statements, I’m gonna ask you within the next 30 days
thereafter to apprise the Court what, if anything, you
want me to do, either reconvene and then continue the
examination to determine whether the funds are fairly
traceable out of the specific account or not, or
whether the plaintiff wants to sort of start over,
regroup and come back with a new garnishment with a
little bit better information.
MR. PFLUM: Thank you, your Honor.
THE COURT: I won’t schedule anything today.
We’ll wait and see after Mr. and Mrs. Fetzer, after
the — after Mr. Pflum gets these records what the
plaintiff wants to do next.
Thank you very much for coming this morning.
MR. PFLUM: Thank you, your Honor.
THE COURT: We’re adjourned.
STATE OF WISCONSIN )
COUNTY OF DANE )
I, ANN M. ALBERT, Court Reporter, do hereby
certify that I reported in stenographic machine
shorthand the hearing held in the above-entitled
matter before the Honorable FRANK D. REMINGTON, on the
17th day of March, 2023, and that the foregoing is an
accurate and complete transcript of my shorthand notes
and the whole thereof.
Dated this 10th day of May, 2023.
Electronically signed by:
Ann M. Albert