Chapter 218

218.0148 218.0148 Guaranteed asset protection agreements.

218.0148(1) (1) Definitions. In this section:

218.0148(1)(a) (a) “Administrator” means a person, other than an insurer or creditor, that performs administrative or operational functions pursuant to guaranteed asset protection waiver programs.

218.0148(1)(b) (b) “Borrower” means a retail buyer who purchases a motor vehicle under a retail installment contract, a lessee, or any other debtor to whom a creditor extends credit for the purchase or refinancing of a motor vehicle.

218.0148(1)(c) (c) “Creditor” means a sales finance company, including any motor vehicle dealer described in s. 218.0101 (34) (b), a lessor, or any other lender that extends credit to a borrower for the purchase or refinancing of a motor vehicle, but does not include a depository institution, as defined in 12 USC 1813 (c) (1), or any state or federal credit union.

218.0148(1)(d) (d) “Finance agreement” means any of the following:

218.0148(1)(d)1. 1. A retail installment contract.

218.0148(1)(d)2. 2. A loan agreement in which a creditor extends credit to a borrower for the purchase or refinancing of a motor vehicle.

218.0148(1)(d)3. 3. A consumer lease.

218.0148(1)(e) (e) “Guaranteed asset protection waiver” means a contractual obligation under which a creditor agrees, for a separate charge, to cancel or waive all or part of amounts due on a borrower’s finance agreement in the event of a total physical damage loss or unrecovered theft of the motor vehicle specified in the finance agreement.

218.0148(2) (2) Guaranteed asset protection waivers authorized.

218.0148(2)(a) (a) Subject to par. (b), guaranteed asset protection waivers may be offered and sold to borrowers in this state in compliance with the requirements under this section. A guaranteed asset protection waiver must be part of, or a separate addendum to, the finance agreement for the motor vehicle.

218.0148(2)(b) (b) A creditor may not require a borrower to purchase a guaranteed asset protection waiver.

218.0148(2)(c) (c) Guaranteed asset protection waivers may, at the option of the creditor, be offered and sold upon a single payment or with required periodic payments.

218.0148(2)(d) (d) A guaranteed asset protection waiver may be assigned and the guaranteed asset protection waiver remains a part of the finance agreement upon the assignment, sale, or transfer of the finance agreement by the creditor.

218.0148(2)(e) (e) Notwithstanding any other provision of law, any cost to the borrower for a guaranteed asset protection waiver entered into in compliance with the federal Truth in Lending Act, 15 USC 1601 et seq., and regulations adopted under that act, shall be separately stated and is not considered a finance charge or interest.

218.0148(2)(f) (f) A retail seller shall insure its guaranteed asset protection waiver obligations under a contractual liability or other insurance policy issued by an insurer. A creditor, other than a retail seller, may insure its guaranteed asset protection waiver obligations under a contractual liability policy or other such policy issued by an insurer. Any such insurance policy may be directly obtained by a creditor or retail seller or may be procured by an administrator to cover a creditor’s or retail seller’s obligations. However, if a retail seller is also a lessor, the retail seller is not required to insure obligations related to guaranteed asset protection waivers on motor vehicles leased under a consumer lease.

218.0148(2)(g) (g) Any creditor that offers a guaranteed asset protection waiver shall report the sale of, and forward funds received on, all guaranteed asset protection waivers to the designated party, if any, prescribed in any applicable administrative services agreement, contractual liability policy, other insurance policy, or other specified program documents.

218.0148(2)(h) (h) Funds received or held by a creditor or administrator and belonging to an insurer, creditor, or administrator, pursuant to the terms of a written agreement, shall be held by the creditor or administrator in a fiduciary capacity.

218.0148(2)(i) (i) Any borrower or potential borrower desiring a guaranteed asset protection waiver shall give a specific, separately signed, affirmative written indication of the borrower’s or potential borrower’s desire to purchase a guaranteed asset protection waiver after receiving the disclosures required in sub. (3). A separate indication includes a signed, written, affirmative indication within a guaranteed asset protection waiver that is an addendum to the finance agreement.

218.0148(2)(j) (j) A creditor may, as a provision within a guaranteed asset protection waiver, provide a discount or credit, or may waive or cancel an additional amount, as an incentive for purchasing, leasing, or financing a replacement vehicle. However, the creditor shall require the borrower to use the benefit on a purchase or lease from the retail seller that sold the original vehicle to the borrower, or with the creditor that financed the purchase or lease of the original vehicle. Inclusion of this provision does not cause the guaranteed asset protection waiver to be considered insurance. Notwithstanding any other provision of law, this paragraph also applies to any state or federally chartered bank or credit union.

218.0148(3) (3) Disclosure requirements for offering guaranteed asset protection waivers.

218.0148(3)(a) (a) No creditor may offer or sell to a borrower a guaranteed asset protection waiver in this state unless all of the following conspicuous written disclosures are provided prior to or concurrent with the execution of the guaranteed asset protection waiver agreement:

218.0148(3)(a)1. 1. That the purchase of the guaranteed asset protection waiver is optional and that neither the extension of credit, nor the terms of the credit, nor the terms of the related motor vehicle sale or lease may be conditioned upon the purchase of the guaranteed asset protection waiver.

218.0148(3)(a)2. 2. The cost and terms of the guaranteed asset protection waiver, including terms relating to the borrower’s right to cancel the waiver and obtain a full or partial refund as provided under sub. (4).

218.0148(3)(a)3. 3. The name and address of the initial creditor and the borrower at the time of the sale or lease, and the identity of any administrator if different from the creditor.

218.0148(3)(a)4. 4. The purchase price and the terms of the guaranteed asset protection waiver, including the requirements for protection, conditions, or exclusions associated with the guaranteed asset protection waiver.

218.0148(3)(a)5. 5. The procedure the borrower must follow, if any, to obtain guaranteed asset protection waiver benefits under the terms and conditions of the waiver, including a telephone number and address where the borrower may apply for waiver benefits.

218.0148(3)(b) (b) Each guaranteed asset protection waiver agreement shall indicate that the agreement is between the borrower and the creditor that sold the guaranteed asset protection waiver and, after any assignment, between the borrower and the assignee.

218.0148(4) (4) Termination or cancellation of guaranteed asset protection waiver.

218.0148(4)(a) (a) A guaranteed asset protection waiver may be canceled by the borrower at any time without penalty.

218.0148(4)(b) (b) A guaranteed asset protection waiver terminates no later than the earliest of the following events:

218.0148(4)(b)1. 1. Cancellation by the borrower.

218.0148(4)(b)2. 2. Payment in full by the borrower of the related credit transaction.

218.0148(4)(b)3. 3. Expiration of any redemption period after a repossession or surrender of the motor vehicle specified in the finance agreement.

218.0148(4)(b)4. 4. Upon total physical damage loss or unrecovered theft of the motor vehicle specified in the finance agreement, after the creditor has waived the gap amount or it is determined that no gap amount exists.

218.0148(4)(b)5. 5. Upon any other event that occurs earlier than the events listed in subds. 1. to 4., as specified in the guaranteed asset protection waiver.

218.0148(4)(c) (c) Subject to par. (d), upon cancellation or termination of a guaranteed asset protection waiver, the borrower is entitled to a refund as follows:

218.0148(4)(c)1. 1. If the cancellation or termination occurs within 30 days after the date the borrower purchased the guaranteed asset protection waiver, the borrower is entitled to a full refund of the guaranteed asset protection waiver cost or a full credit of the guaranteed asset protection waiver cost plus the amount of applicable finance charges.

218.0148(4)(c)2. 2. If the cancellation or termination occurs later than 30 days after the date the borrower purchased the guaranteed asset protection waiver, the borrower is entitled to a partial refund or credit of the guaranteed asset protection waiver cost. At a minimum, the partial refund shall be calculated by a method no less favorable to the borrower than the “rule of 78,” described generally in s. 422.209 (2) (a).

218.0148(4)(d) (d) No refund is required upon cancellation or termination of a guaranteed asset protection waiver if there has been a total physical damage loss or unrecovered theft of the motor vehicle specified in the finance agreement and the borrower has or will receive the benefit of the guaranteed asset protection waiver.

218.0148(4)(e) (e) When calculating the refunds for the unearned guaranteed asset protection waiver charges on agreements that contract for the “rule of 78” method, refunds shall be based on the number of full months earned from the contract date to the actual termination date, counting a fractional month of 16 days or more as a full month. When calculating refunds for the unearned guaranteed asset protection waiver charge on agreements that contract for a pro rata refunding method and a monthly pro rata method is used, the number of full months earned shall be counted in a similar manner.

218.0148(4)(f) (f) No cancellation fee, termination fee, or similar fee may be assessed in connection with the cancellation or termination of a guaranteed asset protection waiver.

218.0148(4)(g) (g) Upon cancellation or termination of a guaranteed asset protection waiver, the creditor shall make an appropriate refund or credit of the guaranteed asset protection waiver charge or shall cause to be made an appropriate refund or credit by instructing in writing the appropriate party to make the refund or credit.

218.0148(5) (5) Applicability of other law.

218.0148(5)(a) (a) In addition to any requirement applicable under this section, a creditor offering or selling to a borrower a guaranteed asset protection waiver in this state shall comply with any applicable requirement under chs. 421 to 427.

218.0148(5)(b) (b) Guaranteed asset protection waivers are not insurance and the insurance laws of this state do not apply to them.

218.0148(6) (6) Commercial installment sales. This section does not apply to a borrower who purchases a motor vehicle under a retail installment contract if, as provided in s. 218.0142 (11), s. 218.0142 does not apply to the retail installment sale of the motor vehicle. However, a guaranteed asset protection waiver offered or sold in conjunction with the purchase of a motor vehicle to be used primarily for business or commercial purposes, or in conjunction with the lease of a motor vehicle that is not a consumer lease, is not insurance.

218.0148(7) (7) Trailers. This section applies with respect to towed vehicles, including trailers not required to be registered under ch. 341, to the same extent it applies to motor vehicles, including that a guaranteed asset protection waiver offered or sold in connection with the sale or lease of a towed vehicle is not insurance.

218.0148 History History: 2017 a. 161.

218.0151 218.0151 Advisory committee. The licensor may appoint annually one or more local advisory committees and one general advisory committee, each consisting of not more than 9 members. The committees upon request of the licensor may advise and assist the licensor in the administration of ss. 218.0101 to 218.0163. The members of the committees shall receive no compensation for their services or expenses.

218.0151 History History: 1999 a. 31 s. 247.

218.0152 218.0152 Rules and regulations.

218.0152(1) (1) The licensor shall promote the interests of retail buyers and lessees of motor vehicles relating to default, delinquency, repossession or collection charges and the refund of the finance charge and insurance premium on prepayment of the installment contract or consumer lease. It may define unfair practices in the motor vehicle industry and trade between licensees or between any licensees and retail buyers, lessees or prospective lessees of motor vehicles, but may not limit the price at which licensees may sell, assign or transfer receivables, contracts or other evidence of any obligation arising out of an installment sale or consumer lease made under ss. 218.0101 to 218.0163.

218.0152(2) (2) 

218.0152(2)(a) (a) The division of banking, department of transportation and division of hearings and appeals shall have the power in hearings arising under this chapter to do all of the following:

218.0152(2)(a)1. 1. Determine the place, in this state, where the hearings shall be held.

218.0152(2)(a)2. 2. Subpoena witnesses and documents.

218.0152(2)(a)3. 3. Take and permit the taking of depositions of witnesses residing in or outside of this state and to otherwise permit the discovery and preservation of evidence before hearing, in the manner provided for in civil actions in courts of record.

218.0152(2)(a)4. 4. Pay the witnesses described in subd. 2 the fees and mileage for their attendance that are provided for witnesses in civil actions in courts of record.

218.0152(2)(a)5. 5. Administer oaths.

218.0152(2)(b) (b) If the licensor has reason to believe that a violation of ss. 218.0101 to 218.0163 has occurred, the licensor may issue subpoenas to compel the attendance of persons to be examined or the production of materials regarding the violation. Subpoenas shall be issued and served in accordance with ch. 885.

218.0152(2)(c) (c) A person providing information under this subsection may request that the information be designated as a trade secret, as defined in s. 134.90 (1) (c), or as confidential business information. The division of hearings and appeals or licensor shall approve the designation if the person providing the information demonstrates that the release of the information would adversely affect the person’s competitive position. At least 15 days before any information designated as a trade secret or as confidential business information is disclosed to any other person, the division of hearings and appeals or licensor shall notify the person providing the information. The person providing the information may seek a court order limiting or prohibiting the disclosure, in which case the court shall weigh the need for confidentiality of the information against the public interest in disclosure. Confidentiality is waived if the person providing the information consents in writing to disclosure.

218.0152(3) (3) The licensor may promulgate such rules as it considers necessary or proper for the effective administration and enforcement of ss. 218.0101 to 218.0163, but no licensee shall be subject to examination or audit by the licensor except as provided in s. 218.0116 (5).

218.0152 History History: 1999 a. 31 ss. 248 to 253.

218.0152 Cross-reference Cross-reference: See also chs. Trans 137, 138, 139, 140, and 144, Wis. adm. code.

218.0161 218.0161 Penalties; reporting violations.

218.0161(1) (1) Except for s. 218.0116 (1) (a), (b), (cm), (d), (f), (fm), (g), (jm), (m), (o) and (om), and except for violations for s. 218.0114 (1), 218.0119, or 218.0147, any person violating ss. 218.0101 to 218.0163 may be required to forfeit not less than $25 nor more than $500 for each violation.

218.0161(2) (2) The division of banking may report any enforcement action, any violation of this chapter or of an administrative rule or order, or other relevant information to the nationwide multistate licensing system and registry. Except as provided in s. 224.35 (4) (b) and (c), these reports to the nationwide multistate licensing system and registry shall be confidential and are not subject to public copying or inspection under s. 19.35 (1).

218.0161 History History: 1999 a. 31 s. 281; 1999 a. 138; 2001 a. 38; 2023 a. 267.

218.0162 218.0162 Commencement of action. Upon the request of the licensor, the department of justice or the district attorney may commence an action in the name of the state to recover a forfeiture under s. 218.0161. An action under s. 218.0161 (1) shall be commenced within 3 years after the occurrence of the unlawful act or practice which is the subject of the action.

218.0162 History History: 1999 a. 31 s. 282; 2023 a. 267.

218.0163 218.0163 Civil damages.

218.0163(1) (1) Without exhausting any administrative remedy available under an agreement or ss. 218.0101 to 218.0163, except as provided in ss. 218.0116 (7) and (8) and 218.0134, a licensee may recover damages in a court of competent jurisdiction for pecuniary loss, together with actual costs including reasonable attorney fees, if the pecuniary loss is caused by any of the following:

218.0163(1)(a) (a) A violation by any other licensee of s. 218.0116 (1) (bm), (f), (h), (hm), (i), (km), (L), (Lm), (mm), (pm), (q), (qm), (r), (rm), (s), (sm), (t), (u), (um), (v), (vm), (w), (wm), (x), (xm), (y), (ym), (ys), or (z).

218.0163(1)(b) (b) Any unfair practice found by a licensor or the division of hearings and appeals under s. 218.0152 (1).

218.0163(1)(c) (c) An affected grantor’s disapproval of a proposed action under s. 218.0134 (2) (b), if the division of hearings and appeals has determined that there is not good cause for not permitting the proposed action to be undertaken following a hearing under s. 218.0134 (2) (c). A dealer may recover under this paragraph even if the affected grantor complies with the order of the division of hearings and appeals under s. 218.0134 (3) (b). If a dealer recovers damages for pecuniary loss, actual costs under this paragraph also include actual costs, including reasonable attorney fees, incurred by the dealer in obtaining the division of hearings and appeals’ determination of good cause.

218.0163(1m) (1m) If a court finds that a violation or practice described in sub. (1) (a) or (b) is willful, a licensee shall recover damages in an amount equal to 3 times the pecuniary loss, together with actual costs including reasonable attorney fees.

218.0163(1q) (1q) In any action brought under this subsection, the burden of proof as to liability shall be the same as set forth in ss. 218.0114 (7) (d), 218.0116 (7) (b), and 218.0116 (8) (b) regarding complaints brought before the division of hearings and appeals, but the burden of proof as to damages shall be on the licensee seeking damages.

218.0163(1r) (1r) For purposes of subs. (1) and (1m), “licensee” means a person or entity holding a license at the time the cause of action arose regardless of whether the person or entity holds a license at the time an action under this section is commenced.

218.0163(2) (2) Any retail buyer, lessee or prospective lessee suffering pecuniary loss because of a violation by a licensee of s. 218.0116 (1) (bm), (c), (cm), (dm), (e), (em), (f), (im), (m) or (p) may recover damages for the loss in any court of competent jurisdiction together with costs, including reasonable attorney fees.

218.0163(3) (3) A complainant or petitioner who prevails against a manufacturer, importer, or distributor as a result of a complaint or petition filed with the division of hearings and appeals based on an alleged violation of ss. 218.0101 to 218.0163 or under s. 218.0116 (7) or (8) or 218.0134 shall have a cause of action against the manufacturer, importer, or distributor for reasonable expenses and attorney fees incurred by the complainant or petitioner in connection with all proceedings resulting from the complaint or petition. This subsection does not apply:

218.0163(3)(a) (a) If the division of hearings and appeals finds that the manufacturer, importer, or distributor was substantially justified or that special circumstances make an award of expenses and attorney fees unjust.

218.0163(3)(b) (b) To an action or proceeding under ss. 218.0114 (7) (d), 218.0131 (3) (c), and 218.0163 (1) and (1m).

218.0163 History History: 1999 a. 31 s. 283; 2001 a. 31; 2003 a. 77; 2005 a. 256; 2011 a. 91; 2013 a. 168 s. 21; 2019 a. 67.

218.0163 Annotation Only a licensee may recover under this section; a claim must be related to the scope of the license. Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 405 N.W.2d 354 (Ct. App. 1987).

218.0163 Annotation Sub. (2) authorizes recovery of reasonable costs and reasonable attorney fees by retail purchasers who prevail on claims under s. 218.0116. Sub. (2) and s. 218.0116 manifest a legislative purpose to provide recovery of the reasonable expenses of the litigation, and such an interpretation is necessary to harmonize otherwise conflicting provisions of sub. (2) and s. 814.04. Recovery of only s. 814.04 enumerated costs would discourage litigants with legitimate claims from seeking relief and undermine the statute’s effectiveness in suppressing prohibited mischief. Kolupar v. Wilde Pontiac Cadillac, Inc., 2007 WI 98, 303 Wis. 2d 258, 735 N.W.2d 93, 05-0935.

218.0163 Annotation A dealer’s refusal to sell the manufacturer’s products after filing a complaint under s. 218.01 (2) (bd) 2. [now s. 218.0114 (7) (d)] is a violation of that provision, and consequently of s. 218.01 (3) (a) 4. [now s. 218.0116 (1) (bm)], entitling the manufacturer to treble damages under s. 218.01 (9) (am) [now this section]. American Suzuki Motor Corp. v. Bill Kummer, Inc., 65 F.3d 1381 (1995).

218.0171 218.0171 Repair, replacement and refund under new motor vehicle warranties.