Chapter 425

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

E.F.

Clerk of Circuit Court

[or]

Plaintiff’s Attorney

Plaintiff’s P. O. Address

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Plaintiff’s Attorney (if any)

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Defendant’s P. O. Address

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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.

425.206 Annotation A lender, not its repossessors, falls within the definition of “merchant” under s. 421.301 (25) and is therefore covered by sub. (2) (a). In this case, it was the lender’s authority to repossess the debtor’s car that the repossession company was exercising. That the lender chose to authorize the repossession company to exercise the lender’s right under Wisconsin law to take possession of its collateral extra-judicially does not mean the lender can avoid liability for actions taken on its behalf and at its request. Gable v. Universal Acceptance Corp. (WI), 338 F. Supp. 3d 943 (2018).

425.206 Annotation The Abolition of Self-Help Repossession: The Poor Pay Even More. White. 1973 WLR 503.

425.206 Annotation The Impact of Denying Self-Help Repossession of Automobiles: A Case Study of the Wisconsin Consumer Act. Whitford & Laufer. 1975 WLR 607.

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

425.2065 425.2065 Notice to law enforcement.

425.2065(1) (1) In this section, “law enforcement agency” means the police department, combined protective services department under s. 60.553, 61.66, or 62.13 (2e), or sheriff, that has primary responsibility for providing police protection services in the city, village, or town in which a repossession is expected to occur.

425.2065(2) (2) A merchant who repossesses motor vehicle collateral or goods subject to a motor vehicle consumer lease under s. 425.206 (1) (d), or a person who repossess such collateral or goods on behalf of the merchant, shall notify, verbally or in writing, the law enforcement agency about the repossession. The notification shall include the names of the customer, merchant, and, if applicable, the person who repossesses the collateral or goods on behalf of the merchant. The notification shall also include a description of the collateral or goods. Notification under this subsection shall be made before the repossession occurs.

425.2065(3) (3) Failure to comply with this subsection does not constitute a failure to comply with s. 425.206 (1) (d).

425.2065 History History: 2005 a. 255; 2011 a. 32.

425.207 425.207 Restraining order to protect collateral or leased goods; abandoned property.

425.207(1) (1) If the court finds that the merchant probably will recover possession of the collateral or goods subject to a consumer lease, and the customer is acting, or is about to act, with respect to the collateral or leased goods in a manner which substantially impairs the merchant’s prospect for realization of the merchant’s security interest or the merchant’s interest in the leased goods, the court may issue an order pursuant to s. 813.02 restraining the customer from so acting with respect to the collateral or leased goods, and need not require a bond by the merchant, notwithstanding s. 813.06.

425.207(2) (2) A merchant who reasonably believes that a customer has abandoned collateral or goods subject to a consumer lease may take possession of such collateral or leased goods and preserve it. However, the customer may recover such collateral or leased goods upon request unless at the time of request the merchant has perfected the right to possession under s. 425.206 (1) (a), (b), or (d). A merchant taking possession of collateral or leased goods pursuant to this section shall promptly send notification to the customer’s last-known address of such action and of the customer’s right to recover such collateral or leased goods under this section. If the collateral or leased goods are recovered by the customer pursuant to this section, it shall be returned to the customer at the location where the merchant took possession of such collateral or leased goods pursuant to this section or, at the option of the merchant, at such other location designated by the customer; and any expense incurred by the merchant in taking possession of, holding and returning the collateral or leased goods to the customer shall be borne by the merchant. If after taking possession of collateral or leased goods pursuant to this subsection, the merchant perfects the right to possession under s. 425.206 (1) (a), (b), or (d), the customer is liable for the expenses set forth in s. 409.615 (1). In determining such expenses, leased goods shall be considered collateral under s. 409.615 (1). However, a customer is not liable for expenses of holding the collateral or leased goods from the time the merchant takes possession until the merchant perfects the right to possession in the manner provided in this subsection.

425.207 History History: 1971 c. 239; Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975); 1975 c. 407, 421, 422; 1979 c. 10; 1981 c. 314 s. 146; 1997 a. 302; 2001 a. 10; 2005 a. 255.

425.208 425.208 Customer’s right to redeem.

425.208(1) (1) For a period of 15 days following exercise by the creditor of nonjudicial enforcement rights (s. 425.206) or issuance of process (s. 425.205) with regard to the collateral, the customer shall be entitled to redeem the goods by tendering:

425.208(1)(a) (a) The total of all unpaid amounts, including any unpaid delinquency or deferral charges due at the time of tender, without acceleration; plus

425.208(1)(b) (b) Performance necessary to cure any default other than nonpayment of amounts due; plus

425.208(1)(c) (c) Any court costs, filing and service fees, and bond premium charges incurred by the creditor; plus

425.208(1)(cm) (cm) If a writing evidencing the consumer credit transaction so provides, expenses the creditor is entitled to recover under s. 422.413 (2g) (a) and (b); plus

425.208(1)(d) (d) Whichever of the following is less:

425.208(1)(d)1. 1. A performance deposit, in the amount of 3 scheduled installments, or minimum payments in the case of an open-end credit plan.

425.208(1)(d)2. 2. One-third of the total obligation remaining unpaid with respect to the consumer credit transaction.

425.208(2) (2) Tender of the payment and performance pursuant to sub. (1) restores to the customer the customer’s rights under the agreement as though all payments and performance had been made as scheduled.

425.208(3) (3) Upon such redemption, any process under which the collateral has been held shall be vacated, any pending action shall be dismissed, and the collateral shall be returned to the customer.

425.208(4) (4) The performance deposit shall be held by the merchant to secure, and may be applied at any time to, the remaining obligations of the customer under the consumer transaction.

425.208(5) (5) The existence of the deposit does not cure any subsequent default of the customer, and the deposit need not be credited to the customer’s account until the remaining unpaid balance of the transaction becomes equal to the deposit. In the event of a subsequent default, prepayment, or other occurrence (except deferral) which requires the computation under chs. 421 to 427 of the outstanding obligation of the customer, the deposit shall be credited to the amount paid for the purposes of such computation.

425.208(6) (6) The creditor shall not dispose of the collateral or enter into a contract for the disposition of the collateral, until the expiration of the period for redemption provided in this section, unless the collateral is perishable or threatens to decline speedily in value. Upon the expiration of such period any disposition of the collateral shall be subject to subch. VI of ch. 409, except that the customer may be liable for a deficiency only to the extent provided in ss. 425.209 and 425.210.

425.208 History History: 1971 c. 239; 1979 c. 10, 89; 1983 a. 389; 1991 a. 316; 1997 a. 302; 1999 a. 85; 2001 a. 10.

425.209 425.209 Restrictions on deficiency judgments.

425.209(1) (1) This section applies to a deficiency on a consumer credit sale of goods or services and on a consumer loan in which the lender is subject to defenses arising from sales (s. 422.408); a customer is not liable for a deficiency unless the merchant has disposed of the goods in good faith and in a commercially reasonable manner.

425.209(2) (2) If the merchant repossesses or accepts voluntary surrender of goods which were the subject of the sale and in which the merchant has a security interest, the customer is not personally liable to the merchant for the unpaid balance of the debt arising from the sale of a commercial unit of the goods of which the amount owing at the time of default was $1,000 or less, and the merchant is not obligated to resell the collateral unless the customer has paid 60 percent or more of the cash price and has not signed after default a statement renouncing the customer’s rights in the collateral.

425.209(3) (3) If the merchant repossesses or accepts voluntary surrender of goods which were not the subject of the sale but in which the merchant has a security interest to secure a debt arising from a sale of goods or services or a combined sale of goods and services and the amount owing at the time of default was $1,000 or less, the customer is not personally liable to the merchant for the unpaid balance of the debt arising from the sale, and the merchant’s duty to dispose of the collateral is governed by the provisions on disposition of collateral under chs. 401 to 411.

425.209(4) (4) If the lender takes possession or accepts voluntary surrender of goods in which the lender has a security interest to secure a debt arising from a consumer loan in which the lender is subject to defenses arising from sales (s. 422.408) and the amount owing at the time of default of the loan paid to or for the benefit of the customer were $1,000 or less, the customer is not personally liable to the lender for the unpaid balance of the debt arising from the loan and the lender’s duty to dispose of the collateral is governed by the provisions on disposition of collateral under chs. 401 to 411.

425.209(5) (5) The customer may be liable in damages to the merchant if the customer has wrongfully damaged the collateral or if, after judgment for the creditor has been entered in a proceeding for recovery of collateral under s. 425.205, the customer has wrongfully failed to make the collateral available to the merchant.

425.209(6) (6) If the merchant elects to bring an action against the customer for a debt arising from a consumer credit sale of goods or services or from a consumer loan in which the lender is subject to defenses arising from sales (s. 422.408), when under this section the merchant would not be entitled to a deficiency judgment if the merchant took possession of the collateral, and obtains judgment:

425.209(6)(a) (a) The merchant may not take possession of the collateral; and

425.209(6)(b) (b) The collateral is not subject to levy or sale on execution or similar proceedings pursuant to the judgment.

425.209 History History: 1971 c. 239; 1973 c. 2, 3; 1991 a. 148, 304, 315, 316.

425.209 Cross-reference Cross-reference: See also ss. DFI-WCA 1.70 and 1.71, Wis. adm. code.

425.209 Annotation Proof of disposal of goods in accordance with sub. (1) must be made by a merchant to obtain a deficiency judgment. Failure to do so need not be asserted as an affirmative defense. Shoeder’s Auto Center, Inc. v. Teschner, 166 Wis. 2d 198, 479 N.W.2d 203 (Ct. App. 1991).

425.209 Annotation Consistent with Shoeder’s Auto Center, 166 Wis. 2d 198 (Ct. App. 1991), in order to make a prima facie case for summary judgment for a deficiency judgment, the merchant is required to present evidence demonstrating that the collateral was disposed of in a commercially reasonable manner. Gemini Capital Group, LLC v. Jones, 2017 WI App 77, 378 Wis. 2d 614, 904 N.W.2d 131, 16-2123.

425.210 425.210 Computation of deficiency. If the creditor is entitled to a deficiency judgment pursuant to s. 425.209 (1), the creditor shall be entitled to recover from the customer the deficiency, if any, remaining after deducting the fair market value of the collateral from the unpaid balance.

425.210 History History: 1971 c. 239.

subch. III of ch. 425 SUBCHAPTER III

CUSTOMER’S REMEDIES

425.301 425.301 Remedies to be liberally administered.

425.301(1) (1) The remedies provided by this subchapter shall be liberally administered to the end that the customer as the aggrieved party shall be put in at least as good a position as if the creditor had fully complied with chs. 421 to 427. Recoveries under chs. 421 to 427 shall not in themselves preclude the award of punitive damages in appropriate cases.

425.301(2) (2) Any right or obligation declared by chs. 421 to 427 is enforceable by action unless the provision declaring it specifies a different and limited effect.

425.301(3) (3) Notwithstanding any other section of chs. 421 to 427, a customer shall not be entitled to recover specific penalties provided in s. 425.302 (1) (a), 425.303 (1), 425.304 (1) or 425.305 (1) if the person violating chs. 421 to 427 shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.