Chapter 409

409.626(1)(a) (a) A secured party need not prove compliance with the provisions of this subchapter relating to collection, enforcement, disposition, or acceptance unless the debtor or a secondary obligor places the secured party’s compliance in issue.

409.626(1)(b) (b) If the secured party’s compliance is placed in issue, the secured party has the burden of establishing that the collection, enforcement, disposition, or acceptance was conducted in accordance with this subchapter.

409.626(1)(c) (c) Except as otherwise provided in s. 409.628, if a secured party fails to prove that the collection, enforcement, disposition, or acceptance was conducted in accordance with the provisions of this subchapter relating to collection, enforcement, disposition, or acceptance, the liability of a debtor or a secondary obligor for a deficiency is limited to an amount by which the sum of the secured obligation, expenses, and attorney fees exceeds the greater of:

409.626(1)(c)1. 1. The proceeds of the collection, enforcement, disposition, or acceptance; or

409.626(1)(c)2. 2. The amount of proceeds that would have been realized had the noncomplying secured party proceeded in accordance with the provisions of this subchapter relating to collection, enforcement, disposition, or acceptance.

409.626(1)(d) (d) For purposes of par. (c) 2., the amount of proceeds that would have been realized is equal to the sum of the secured obligation, expenses, and attorney fees unless the secured party proves that the amount is less than that sum.

409.626(1)(e) (e) If a deficiency or surplus is calculated under s. 409.615 (6), the debtor or obligor has the burden of establishing that the amount of proceeds of the disposition is significantly below the range of prices that a complying disposition to a person other than the secured party, a person related to the secured party, or a secondary obligor would have brought.

409.626(2) (2) Nonconsumer transactions; no inference. The limitation of the rules in sub. (1) to transactions other than consumer transactions is intended to leave to the court the determination of the proper rules in consumer transactions. The court may not infer from that limitation the nature of the proper rule in consumer transactions and may continue to apply established approaches.

409.626 History History: 2001 a. 10.

409.627 409.627 Determination of whether conduct was commercially reasonable.

409.627(1) (1) Greater amount obtainable under other circumstances; no preclusion of commercial reasonableness. The fact that a greater amount could have been obtained by a collection, enforcement, disposition, or acceptance at a different time or in a different method from that selected by the secured party is not of itself sufficient to preclude the secured party from establishing that the collection, enforcement, disposition, or acceptance was made in a commercially reasonable manner.

409.627(2) (2) Dispositions that are commercially reasonable. A disposition of collateral is made in a commercially reasonable manner if the disposition is made:

409.627(2)(a) (a) In the usual manner on any recognized market;

409.627(2)(b) (b) At the price current in any recognized market at the time of the disposition; or

409.627(2)(c) (c) Otherwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.

409.627(3) (3) Approval by court or on behalf of creditors. A collection, enforcement, disposition, or acceptance is commercially reasonable if it has been approved:

409.627(3)(a) (a) In a judicial proceeding;

409.627(3)(b) (b) By a bona fide creditors’ committee;

409.627(3)(c) (c) By a representative of creditors; or

409.627(3)(d) (d) By an assignee for the benefit of creditors.

409.627(4) (4) Approval under sub. (3) not necessary; absence of approval has no effect. Approval under sub. (3) need not be obtained, and lack of approval does not mean that the collection, enforcement, disposition, or acceptance is not commercially reasonable.

409.627 History History: 2001 a. 10.

409.628 409.628 Nonliability and limitation on liability of secured party; liability of secondary obligor.

409.628(1) (1) Limitation of liability of secured party for noncompliance with chapter. Unless a secured party knows that a person is a debtor or obligor, knows the identity of the person, and knows how to communicate with the person:

409.628(1)(a) (a) The secured party is not liable to the person, or to a secured party or lienholder that has filed a financing statement against the person, for failure to comply with this chapter; and

409.628(1)(b) (b) The secured party’s failure to comply with this chapter does not affect the liability of the person for a deficiency.

409.628(2) (2) Limitation of liability based on status as secured party. A secured party is not liable because of its status as secured party:

409.628(2)(a) (a) To a person that is a debtor or obligor, unless the secured party knows:

409.628(2)(a)1. 1. That the person is a debtor or obligor;

409.628(2)(a)2. 2. The identity of the person; and

409.628(2)(a)3. 3. How to communicate with the person; or

409.628(2)(b) (b) To a secured party or lienholder that has filed a financing statement against a person, unless the secured party knows:

409.628(2)(b)1. 1. That the person is a debtor; and

409.628(2)(b)2. 2. The identity of the person.

409.628(3) (3) Limitation of liability if reasonable belief that transaction not a consumer-goods transaction or consumer transaction. A secured party is not liable to any person, and a person’s liability for a deficiency is not affected, because of any act or omission arising out of the secured party’s reasonable belief that a transaction is not a consumer-goods transaction or a consumer transaction or that goods are not consumer goods, if the secured party’s belief is based on its reasonable reliance on:

409.628(3)(a) (a) A debtor’s representation concerning the purpose for which collateral was to be used, acquired, or held; or

409.628(3)(b) (b) An obligor’s representation concerning the purpose for which a secured obligation was incurred.

409.628(4) (4) Limitation of liability for statutory damages. A secured party is not liable to any person under s. 409.625 (3) (b) for its failure to comply with s. 409.616.

409.628(5) (5) Limitation of multiple liability for statutory damages. A secured party is not liable under s. 409.625 (3) (b) more than once with respect to any one secured obligation.

409.628 History History: 2001 a. 10.

subch. VII of ch. 409 SUBCHAPTER VII

TRANSITION

409.702 409.702 Savings clause.

409.702(1) (1) Preeffective-date transactions or liens. Except as otherwise provided in this subchapter, 2001 Wisconsin Act 10 applies to a transaction or lien within its scope, even if the transaction or lien was entered into or created before July 1, 2001.

409.702(2) (2) Continuing validity. Except as otherwise provided in sub. (3) and ss. 409.703 to 409.709:

409.702(2)(a) (a) Transactions and liens that were not governed by ch. 409, 1999 stats., were validly entered into or created before July 1, 2001, and would be subject to 2001 Wisconsin Act 10 if they had been entered into or created on or after July 1, 2001, and the rights, duties, and interests flowing from those transactions and liens remain valid on and after July 1, 2001; and

409.702(2)(b) (b) The transactions and liens may be terminated, completed, consummated, and enforced as required or permitted by 2001 Wisconsin Act 10 or by the law that otherwise would apply if this paragraph had not taken effect.

409.702(3) (3) Preeffective-date proceedings. 2001 Wisconsin Act 10 does not affect an action, case, or proceeding commenced before July 1, 2001.

409.702 History History: 2001 a. 10.

409.703 409.703 Security interest perfected before effective date.

409.703(1) (1) Continuing priority over lien creditor: perfection requirements satisfied. A security interest that is enforceable immediately before July 1, 2001, and would have priority over the rights of a person that becomes a lien creditor at that time is a perfected security interest under 2001 Wisconsin Act 10 if, on July 1, 2001, the applicable requirements for enforceability and perfection under 2001 Wisconsin Act 10 are satisfied without further action.

409.703(2) (2) Continuing priority over lien creditor: perfection requirements not satisfied. Except as otherwise provided in s. 409.705, if, immediately before July 1, 2001, a security interest is enforceable and would have priority over the rights of a person that becomes a lien creditor at that time, but the applicable requirements for enforceability or perfection under 2001 Wisconsin Act 10 are not satisfied as of July 1, 2001, the security interest:

409.703(2)(a) (a) Is a perfected security interest until one year after July 1, 2001;

409.703(2)(b) (b) Remains enforceable on and after one year after July 1, 2001, only if the security interest becomes enforceable under s. 409.203 before one year after July 1, 2001; and

409.703(2)(c) (c) Remains perfected on and after one year after July 1, 2001, only if the applicable requirements for perfection under 2001 Wisconsin Act 10 are satisfied before one year after July 1, 2001.

409.703 History History: 2001 a. 10.

409.704 409.704 Security interest unperfected before effective date. A security interest that is enforceable immediately before July 1, 2001, but which would be subordinate to the rights of a person that becomes a lien creditor at that time:

409.704(1) (1) Remains an enforceable security interest for one year after July 1, 2001;

409.704(2) (2) Remains enforceable on and after one year after July 1, 2001, if the security interest becomes enforceable under s. 409.203 on July 1, 2001, or within one year thereafter; and

409.704(3) (3) Becomes perfected:

409.704(3)(a) (a) Without further action, on July 1, 2001, if the applicable requirements for perfection under 2001 Wisconsin Act 10 are satisfied before or at that time; or

409.704(3)(b) (b) When the applicable requirements for perfection are satisfied if the requirements are satisfied after that time.

409.704 History History: 2001 a. 10, 104.

409.705 409.705 Effectiveness of action taken before effective date.

409.705(1) (1) Preeffective-date action; one-year perfection period unless reperfected. If action, other than the filing of a financing statement, is taken before July 1, 2001, and the action would have resulted in priority of a security interest over the rights of a person that becomes a lien creditor had the security interest become enforceable before July 1, 2001, the action is effective to perfect a security interest that attaches under 2001 Wisconsin Act 10 before July 1, 2001. An attached security interest becomes unperfected one year after July 1, 2001, unless the security interest becomes a perfected security interest under 2001 Wisconsin Act 10 before one year after July 1, 2001.

409.705(2) (2) Preeffective-date filing. The filing of a financing statement before July 1, 2001, is effective to perfect a security interest to the extent that the filing would satisfy the applicable requirements for perfection under 2001 Wisconsin Act 10.

409.705(3) (3) Preeffective-date filing in jurisdiction formerly governing perfection. 2001 Wisconsin Act 10 does not render ineffective an effective financing statement that, before July 1, 2001, is filed and satisfies the applicable requirements for perfection under the law of the jurisdiction governing perfection as provided in s. 409.103, 1999 stats. However, except as otherwise provided in subs. (4) and (5) and s. 409.706, the financing statement ceases to be effective at the earlier of:

409.705(3)(a) (a) The time the financing statement would have ceased to be effective under the law of the jurisdiction in which it is filed; or

409.705(3)(b) (b) June 30, 2006.

409.705(4) (4) Continuation statement. The filing of a continuation statement on or after July 1, 2001, does not continue the effectiveness of the financing statement filed before July 1, 2001. However, upon the timely filing of a continuation statement on or after July 1, 2001, and in accordance with the law of the jurisdiction governing perfection as provided in subch. III, the effectiveness of a financing statement filed in the same office in that jurisdiction before July 1, 2001, continues for the period provided by the law of that jurisdiction.

409.705(5) (5) Application of sub. (3) (b) to transmitting utility financing statement. Subsection (3) (b) applies to a financing statement that, before July 1, 2001, is filed against a transmitting utility and satisfies the applicable requirements for perfection under the law of the jurisdiction governing perfection as provided in s. 409.103, 1999 stats., only to the extent that subch. III provides that the law of a jurisdiction other than the jurisdiction in which the financing statement is filed governs perfection of a security interest in collateral covered by the financing statement.

409.705(6) (6) Application of subch. V. A financing statement that includes a financing statement filed before July 1, 2001, and a continuation statement filed on or after July 1, 2001, is effective only to the extent that it satisfies the requirements of subch. V for an initial financing statement.

409.705 History History: 2001 a. 10.

409.706 409.706 When initial financing statement suffices to continue effectiveness of financing statement.

409.706(1) (1) Initial financing statement in lieu of continuation statement. The filing of an initial financing statement in the office specified in s. 409.501 continues the effectiveness of a financing statement filed before July 1, 2001, if:

409.706(1)(a) (a) The filing of an initial financing statement in that office would be effective to perfect a security interest under 2001 Wisconsin Act 10;

409.706(1)(b) (b) The preeffective-date financing statement was filed in an office in another state or another office in this state; and

409.706(1)(c) (c) The initial financing statement satisfies sub. (3).

409.706(2) (2) Period of continued effectiveness. The filing of an initial financing statement under sub. (1) continues the effectiveness of the preeffective-date financing statement:

409.706(2)(a) (a) If the initial financing statement is filed before July 1, 2001, for the period provided in s. 409.403, 1999 stats., with respect to a financing statement; and

409.706(2)(b) (b) If the initial financing statement is filed on or after July 1, 2001, for the period provided in s. 409.515 with respect to an initial financing statement.

409.706(3) (3) Requirements for initial financing statement under sub. (1). To be effective for purposes of sub. (1), an initial financing statement must:

409.706(3)(a) (a) Satisfy the requirements of subch. V for an initial financing statement;

409.706(3)(b) (b) Identify the preeffective-date financing statement by indicating the office in which the financing statement was filed and providing the dates of filing and file numbers, if any, of the financing statement and of the most recent continuation statement filed with respect to the financing statement; and

409.706(3)(c) (c) Indicate that the preeffective-date financing statement remains effective.

409.706 History History: 2001 a. 10.

409.707 409.707 Amendment of preeffective-date financing statement.

409.707(1) (1) Preeffective-date financing statement. In this section, “preeffective-date financing statement” means a financing statement filed before July 1, 2001.

409.707(2) (2) Applicable law. On or after July 1, 2001, a person may add or delete collateral covered by, continue or terminate the effectiveness of, or otherwise amend the information provided in, a preeffective-date financing statement only in accordance with the law of the jurisdiction governing perfection as provided in subch. III. However, the effectiveness of a preeffective-date financing statement also may be terminated in accordance with the law of the jurisdiction in which the financing statement is filed.