Section 1.08. Request for recovery proceeding.

 

(1)   Division filing. To initiate a recovery proceeding under subch. VII of ch. 126 , Stats., the trade and consumer protection division shall file all of the following with the secretary:

(a) A written request, signed by the division administrator, asking that a recovery proceeding be initiated.

(b) Copies of one or more producer claims alleging a financial default, or other evidence of default under subch. VII of ch. 126 , Stats.

(c) A proposed default claim filing order.

(2)   Claim filing order. Upon receiving documents from the trade and consumer protection division under sub. (1) , the secretary may initiate a recovery proceeding by issuing a default claim filing order. If the secretary issues a default claim filing order, the department shall publish the default claim filing order as required by subch. VII of ch. 126 , Stats.

Example: A claim filing order in a dairy plant default proceeding may be captioned as follows: - See PDF for table

(3)   Auditing claims; proposed decision. The trade and consumer protection division shall audit claims filed in response to the default claim filing order under sub. (2) . Based on its audit, the trade and consumer protection division shall file with the secretary a proposed decision determining claims. The proposed decision shall do all of the following:

(a) Specify proposed findings of fact, proposed conclusions of law and a proposed order determining claims and appropriate sources for payment of claims.

(b) Allow or disallow each default claim according to s. 126.70 (4) , Stats., and specify the amount of each allowed claim.

(c) Specify, for each allowed claim, the amount that the department is authorized to pay under s. 126.71 , Stats.

(d) Specify the method, under s. 126.71 , Stats., by which the department will pay the authorized amounts.

(e) Explain a claimant's right under s. 126.87 (4) , Stats., to seek court recovery of that portion of an authorized claim that is not paid by the department.

(f) Specify a date by which the contractor, claimant, surety or trade credit insurer may file written objections to the proposed decision.

(g) If a respondent is covered by the department's trade credit insurance policy, specify what claimants must do to qualify for coverage under the policy.

(h) Include other provisions, if any, that the division finds necessary for the just and orderly determination of claims under ch. 126 , Stats.

(4)   Notice and hearing.

(a) After the trade and consumer protection division files its proposed decision with the secretary under sub. (3) , the department shall hold a class 2 contested case hearing on the proposed decision. To initiate the contested case proceeding, the secretary shall issue a hearing notice under s. ATCP 1.20 .

(b) The notice under par. (a) shall include a copy of the proposed decision under sub. (3) . The notice shall invite affected parties to present their objections, if any, at the contested case hearing. The notice may require affected parties to file their objections in writing before the hearing, by a specified date.

(c) The notice under par. (a) shall be issued to all of the following parties:

1. The respondent who is alleged to have defaulted on payment obligations to producers.

2. Any financial institution, insurance company or surety who may be obligated as a result of the default to pay the department.

3. Each producer claimant who has filed a timely claim with the department.

(d) If any party files a timely objection to the division's proposed decision under sub. (3) , the administrative law judge shall hear that objection in the contested case hearing under par. (a) .

(e) If, upon hearing under par. (a) , there is no objection to the division's proposed decision and order under sub. (3) , the department may adopt that proposed decision and order as the department's final decision and order in the proceeding, without further notice to the parties.

Cr. Register, May, 1992, No. 437 , eff. 6-1-92; corrections in (1) (b) and (2) made under s. 13.93 (2m) b. 7., Stats., Register April 2003 No. 568 ; CR 09-054 : am. (title), (1), (2), (4) (c) 2., (d), r. and recr. (3) Register December 2010 No. 660 , eff. 1-1-11.