Chapter 425

425.202 History History: 1971 c. 239; 1975 c. 407; 2005 a. 255.

425.203 425.203 Enforcement of merchant’s rights in collateral and leased goods.

425.203(1) (1) At any time after default (s. 425.103) and the expiration of the period for cure of default (s. 425.105), if applicable, a merchant may commence an action to recover collateral or goods subject to a consumer lease pursuant to s. 425.205, or reduce the claim to a judgment by any available judicial procedure.

425.203(2) (2) In any action for a judgment under sub. (1) other than an action pursuant to s. 425.205, the judgment may provide for the right to possession of the collateral or leased goods by the merchant and for a deficiency, if the merchant would not be precluded from a deficiency judgment under s. 425.209 had the merchant initially proceeded against the collateral and if the judgment includes a finding that the merchant has the right to possession of any collateral securing the consumer credit transaction or goods subject to a consumer lease. Upon determining such judgment under this subsection the merchant shall have the right to:

425.203(2)(a) (a) Have execution issue to require the sheriff in the county where the collateral or leased goods may be to take the same from the defendant and deliver it to the plaintiff; or

425.203(2)(b) (b) Immediately exercise the right to nonjudicial recovery of the collateral or leased goods, subject to s. 425.206.

425.203(3) (3) Following recovery of collateral pursuant to a judgment under sub. (2), the merchant may either retain the collateral in full satisfaction of the customer’s obligation pursuant to ss. 409.620 to 409.624, in which event the merchant shall satisfy the judgment obtained pursuant to sub. (2); or shall dispose of the collateral pursuant to subch. VI of ch. 409, in which event:

425.203(3)(a) (a) The merchant shall apply to the court which entered the judgment pursuant to sub. (2) to confirm the sale or other disposition of the collateral upon 8 days’ notice to all parties named in such action, either personally or by certified or registered mail directed to the last-known address of the parties. Such notice shall state, in addition to any other matter required by law, the time and place of the hearing, the amount of the judgment, the proceeds received upon disposition of the collateral, the fair market value of the collateral claimed by the merchant if such standard is applicable under s. 425.210, the reasonable expenses incurred in disposition of collateral, the net amount proposed to be credited against the judgment, and any deficiency remaining. In addition, the notice directed to the customer shall conspicuously advise the customer of the right to appear at such hearing and to contest any matter set forth in the notice.

425.203(3)(b) (b) At such a hearing on confirmation, the court shall determine on the basis of the evidence presented by the parties, by affidavit or otherwise, the commercial reasonableness of the merchant’s disposition of the collateral, the reasonable expenses incurred by the merchant in disposition of the collateral, the compliance with s. 425.210 if applicable, the resulting amount to be credited against the judgment and the remaining deficiency. Following such hearing and determinations, the court shall enter an appropriate order to satisfy the judgment and provide such other relief as may be appropriate. Where the underlying transaction is a consumer credit sale of goods or services or a consumer loan in which the lender is subject to defenses arising from s. 422.408, this hearing shall be considered a proceeding for a deficiency judgment pursuant to s. 425.209 (1).

425.203(4) (4) Following recovery of goods subject to a consumer lease pursuant to a judgment under sub. (2), no deficiency shall be allowable unless the merchant disposes of the leased goods and applies the proceeds to the customer’s obligation, in which event:

425.203(4)(a) (a) The merchant shall apply to the court which entered the judgment pursuant to sub. (2) to confirm the sale or other disposition of the leased goods upon 8 days’ notice to all parties named in the action, either personally or by certified or registered mail directed to the last-known address of the parties. Such notice shall state, in addition to any other matter required by law, the time and place of the hearing, the amount of the judgment, the proceeds received upon disposition of the leased goods, the reasonable expenses incurred in disposition of the leased goods, the net amount proposed to be credited against the judgment, and any deficiency remaining. In addition, the notice directed to the customer shall conspicuously advise the customer of the right to appear at such hearing and to contest any matter set forth in the notice.

425.203(4)(b) (b) At such a hearing on confirmation, the court shall determine on the basis of evidence presented by the parties, by affidavit or otherwise, the commercial reasonableness of the merchant’s disposition of the leased goods, the reasonable expenses incurred by the merchant in disposition of the leased goods, and the resulting amount to be credited against the judgment entered pursuant to sub. (2). Following such hearing and determinations, the court shall enter an appropriate order to satisfy the judgment and provide such other relief as may be appropriate.

425.203 History History: 1971 c. 239; 1975 c. 407, 421; 2001 a. 10.

425.204 425.204 Voluntary surrender of collateral.

425.204(1) (1) Notwithstanding a waiver by the creditor of the security interest in collateral under s. 425.203 (2) or any other law, the customer shall have the right at any time to voluntarily surrender all of the customer’s rights and interests in the collateral to the merchant.

425.204(2) (2) The rights and obligations of the merchant and customer with respect to collateral voluntarily surrendered as defined in this section shall be governed by subch. VI of ch. 409, and are not subject to this subchapter.

425.204(3) (3) The surrender of collateral by a customer is not a voluntary surrender if it is made pursuant to a request or demand, other than a notice under s. 425.205 (1g) (a), by the merchant for the surrender of the collateral, or if it is made pursuant to a threat, statement, or notice, other than a notice under s. 425.205 (1g) (a), by the merchant that the merchant intends to take possession of the collateral.

425.204 History History: 1971 c. 239; 1991 a. 316; 2001 a. 10; 2005 a. 255.

425.204 Cross-reference Cross-reference: See also s. DFI-WCA 1.67, Wis. adm. code.

425.204 Annotation Under the facts of the case, the customer did not “voluntarily surrender” collateral under sub. (3). Wachal v. Ketterhagen Motor Sales, Inc., 81 Wis. 2d 605, 260 N.W.2d 770 (1978).

425.205 425.205 Action to recover collateral.

425.205(1) (1) Except as provided in s. 425.206, a creditor seeking to obtain possession of collateral or goods subject to a consumer lease shall commence an action for replevin of the collateral or leased goods. Those actions shall be conducted in accordance with ch. 799, notwithstanding s. 799.01 (1) (c) and the value of the collateral or leased goods sought to be recovered, except that:

425.205(1)(a) (a) Notwithstanding ss. 799.05 (2) and 799.06 (2), process shall be issued by the clerk of court, and such action shall be commenced upon the request of an officer or employee of a merchant on the merchant’s behalf;

425.205(1)(b) (b) The summons shall be in the form prescribed in sub. (2), and a complaint in the form described in sub. (3) shall be served with the summons;

425.205(1)(c) (c) When service is made pursuant to s. 799.12 (3) certified mail with return receipt requested shall be employed;

425.205(1)(d) (d) On the return date of the summons or any adjournment date thereof the customer shall have the right to a hearing on the issue of default or other matter which questions the validity of the merchant’s claim to the collateral or leased goods, and the customer may answer, move to dismiss under s. 802.06 (2) or otherwise plead to the complaint orally, but if the customer fails to appear on the return day, judgment may be entered by the clerk or judge in accordance with the demands of the verified complaint, or upon an affidavit of the facts, or sworn testimony or other evidence to the clerk or judge; and

425.205(1)(e) (e) Judgment in such action shall determine only the right to possession of the collateral or leased goods, but such judgment shall not bar any subsequent action for damages or deficiency to the extent permitted by this subchapter.

425.205(1g) (1g) 

425.205(1g)(a) (a) A merchant may not take possession of motor vehicle collateral or goods subject to a motor vehicle consumer lease under s. 425.206 (1) (d), unless the merchant gives, by mail, the customer a notice containing all of the following information:

425.205(1g)(a)1. 1. The name, address, and telephone number of the merchant, a brief identification of the consumer credit transaction, and a brief description of the collateral or goods.

425.205(1g)(a)2. 2. A statement that, as a result of the customer’s default on the consumer credit transaction, the merchant may have the right to take possession of the collateral or goods without further notice or court proceeding.

425.205(1g)(a)3. 3. A statement that if the customer is not in default or objects to the merchant’s right to take possession of the collateral or goods, the customer may, no later than 15 days after the merchant has given the notice, demand that the merchant proceed in court by notifying the merchant in writing.

425.205(1g)(a)4. 4. A statement that if the merchant proceeds in court, the customer may be required to pay court costs and attorney fees.

425.205(1g)(b) (b) The information required under par. (a) may be combined with any other notice, except that if the customer has a right to cure under s. 425.105, the information required under par. (a) shall be combined with the notice of right to cure under s. 425.104.

425.205(1g)(c) (c) A merchant is presumed to have given notice under par. (a) if the merchant sent the notice by certified or registered mail. A merchant who fails to give notice under par. (a) by certified or registered mail is subject to the penalties specified in s. 425.302 (1), but such failure does not constitute a failure to comply with s. 425.206 (1) (d).

425.205(2) (2) The summons in such actions shall be in the following form:

State of Wisconsin

Circuit Court

.... County

A. B. Plaintiff

v.

C. D. Defendant

SUMMONS (Small Claim)

THE STATE OF WISCONSIN

To said Defendant:

The Plaintiff named above has commenced an action to recover possession of the following property:

[Description of Collateral or Leased Goods]

This claim arises under a consumer credit transaction under which you are alleged to be in default, as described in the attached complaint.

IF YOU ARE NOT IN DEFAULT OR HAVE AN OBJECTION TO THE PLAINTIFF’S TAKING THE PROPERTY LISTED ABOVE, YOU MAY ARRANGE FOR A HEARING ON THESE ISSUES BY APPEARING IN THE CIRCUIT COURT OF .... COUNTY, IN THE COURTHOUSE LOCATED IN ...., (municipality), BEFORE JUDGE .... OR ANY OTHER JUDGE TO WHOM THE ACTION MAY BE ASSIGNED, ON .... (date), AT .... (time). IF YOU DO NOT APPEAR AT THAT TIME, JUDGMENT WILL BE RENDERED AGAINST YOU FOR DELIVERY OF THE PROPERTY TO THE PLAINTIFF.

DATED ...., .... (year)

E.F.

Clerk of Circuit Court

[or]

Plaintiff’s Attorney

Plaintiff’s P. O. Address

....

....

Plaintiff’s Attorney (if any)

....

....

Defendant’s P. O. Address

....

....

425.205(3) (3) The complaint in such action shall conform with the requirements of s. 425.109.

425.205(4) (4) Upon the written request of the customer under s. 425.109 (2), the merchant shall produce an accurate copy of writings evidencing the customer’s obligation pursuant to an open-end credit plan upon which the merchant’s claim is made, and default judgment shall not be entered for the merchant unless the merchant does so. The writings requirement under this subsection is satisfied if the merchant provides the customer with a copy of the billing statement referenced in s. 425.109 (1) (d) 1. addressed to the customer reflecting the total outstanding balance on the customer’s account at the time this billing statement was issued. If this billing statement is attached to the complaint, then the statement under s. 425.109 (1) (h) is not required to be included in the complaint.

425.205(5) (5) Upon entry of judgment for the plaintiff, the plaintiff shall have the right to:

425.205(5)(a) (a) Have execution issue to require the sheriff of the county where the collateral or leased goods may be to take the same from the defendant and deliver it to the plaintiff; or

425.205(5)(b) (b) Immediately exercise the right to nonjudicial recovery of the collateral or leased goods, subject to s. 425.206.

425.205(6) (6) Action pursuant to this section may be commenced at any time after the customer is in default, but the return day of process may not be set prior to the expiration of the period for cure of the default by the customer (s. 425.105), if applicable.

425.205 History History: 1971 c. 239; Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975); 1975 c. 407, 421; 1977 c. 449 s. 497; 1979 c. 32 s. 92 (16); 1981 c. 317; 1981 c. 391 s. 210; 1983 a. 389; 1989 a. 31; 1993 a. 246; 1997 a. 250; 2005 a. 255; 2015 a. 155.

425.205 Annotation Sub. (1g) (a) requires a creditor to give notice to the debtor that includes that the creditor may repossess the car without going to court unless the debtor demands within 15 days of the notice that the creditor proceed to court. Under s. 421.201(8), the debtor’s address is established by any writing signed by the debtor in connection with the transaction and is presumed to be unchanged until the creditor knows or has reason to know of a different address. Given the debtor’s failure to provide her new address to the creditor, the debtor failed to show that the creditor’s notice by registered mail to the address that it had on file did not comply with this section. Molinski v. Chase Auto Finance Corp., 2013 WI App 101, 349 Wis. 2d 687, 837 N.W.2d 166, 12-2184.

425.205 Annotation Wisconsin’s New Automobile Repossession Law: Creditors in the Driver’s Seat. Anderson & Meili. Wis. Law. Feb. 2007.

425.206 425.206 Nonjudicial enforcement limited.

425.206(1) (1) Notwithstanding any other provision of law, no merchant may take possession of collateral or goods subject to a consumer lease in this state except when any of the following apply:

425.206(1)(a) (a) The customer has surrendered the collateral or leased goods.

425.206(1)(b) (b) Judgment for the merchant has been entered in a proceeding for recovery of collateral or leased goods under s. 425.205, or for possession of the collateral or leased goods under s. 425.203 (2).

425.206(1)(c) (c) The merchant has taken possession of collateral or leased goods pursuant to s. 425.207 (2).

425.206(1)(d) (d) For motor vehicle collateral or goods subject to a motor vehicle consumer lease, the customer has not made a demand as specified in s. 425.205 (1g) (a) 3. and, no sooner than 15 days after the merchant gives the notice specified in s. 425.205 (1g) (a), the merchant has taken possession of the collateral or goods in accordance with sub. (2).

425.206(2) (2) In taking possession of collateral or leased goods, no merchant may do any of the following:

425.206(2)(a) (a) Commit a breach of the peace.

425.206(2)(b) (b) Enter a dwelling used by the customer as a residence except at the voluntary request of a customer.

425.206(3) (3) A violation of this section is subject to s. 425.305.

425.206 History History: 1971 c. 239; 1975 c. 94 s. 3; 1975 c. 407; 1979 c. 10; 1995 a. 225; 1997 a. 302; 2005 a. 255.

425.206 Annotation Under the facts of the case, the customer did not voluntarily surrender collateral under sub. (1) (a). Wachal v. Ketterhagen Motor Sales, Inc., 81 Wis. 2d 605, 260 N.W.2d 770 (1978).

425.206 Annotation Notwithstanding s. 421.201 (5), this section governed repossessions outside the state when the contract provided for enforcement under the “internal law” of Wisconsin. First Wisconsin National Bank of Madison v. Nicolaou, 85 Wis. 2d 393, 270 N.W.2d 582 (Ct. App. 1978).

425.206 Annotation A “breach of the peace” under sub. (2) has the same meaning as in s. 409.503. Repossession in disregard of the debtor’s oral protest is a breach of the peace. Punitive damages may be appropriate as the result of the breach of the peace. Hollibush v. Ford Motor Co., 179 Wis. 2d 799, 508 N.W.2d 449 (Ct. App. 1993).

425.206 Annotation Repossession under an invalid judgment violates this section. Kett v. Community Credit Plan, Inc., 228 Wis. 2d 1, 596 N.W.2d 786 (1999), 97-3620.

425.206 Annotation The definition of “dwelling used by the customer as a residence” in sub. (2) (b) does not depend on whether the customer has the right to exclude others from a particular area or whether the customer has a reasonable expectation of privacy in a particular area under the 4th amendment. Dwelling generally refers to an entire building in which people live and includes a garage attached to the residential building in which the customer lives. Nothing in the language “dwelling used by the customer as a residence” suggests that the protections in sub. (2) (b) are limited to only the integral parts of a residence or the areas with indicia of residential use. Duncan v. Asset Recovery Specialists, Inc., 2022 WI 1, 400 Wis. 2d 1, 968 N.W.2d 661, 19-1365.

425.206 Annotation The modifier “used by the customer as a residence” is best understood as imposing a limitation on which dwelling sub. (2) (b) protects—the dwelling this customer uses as a residence—not what parts of the dwelling it protects. The phrase distinguishes the customer’s dwelling from all other dwellings. Duncan v. Asset Recovery Specialists, Inc., 2022 WI 1, 400 Wis. 2d 1, 968 N.W.2d 661, 19-1365.