Chapter 846

846.16   Notice of sale; sale; confirmation; transfer.

846.162   Disposition of surplus.

846.165   Application for confirmation of sale and for deficiency judgment.

846.18   Tardy confirmation of sale.

846.25   Discharge after foreclosure.

846.30   Redemption period for land contracts.

846.40   Regulation of foreclosure reconveyances.

846.45   Regulation of foreclosure consultants.

846.01 846.01 Foreclosure judgment.

846.01(1) (1) Except as provided in sub. (2), in actions for the foreclosure of mortgages upon real estate, if the plaintiff recover, the court shall render judgment of foreclosure and sale, as provided in this chapter, of the mortgaged premises or so much of the premises as may be sufficient to pay the amount adjudged to be due upon the mortgage and obligation secured by the mortgage, with costs.

846.01(2) (2) A judgment of foreclosure and sale shall not be entered until 20 days after the lis pendens has been filed.

846.01 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.01; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.01; 1997 a. 254.

846.01 Cross-reference Cross-reference: See s. 840.10 as to requirement of filing of lis pendens.

846.01 Annotation The defense of laches, consisting of unreasonable delay by the mortgagee in commencing the action, its actual or constructive knowledge of the transfer and acquiescence therein, and prejudice to the mortgagor asserting the defense, is in itself a sufficient basis that it would be inequitable under the circumstances to decree foreclosure. Mutual Federal Savings & Loan Assoc. v. American Medical Services, 66 Wis. 2d 210, 223 N.W.2d 921 (1974).

846.01 Annotation The trial court could enter judgment against a codefendant who received an excess payment of sheriff sale proceeds from another defendant. The trial court’s authority in a foreclosure action is equitable in nature and not limited to that expressly granted by statute. The court’s discretion extends even after confirmation of sale, if necessary to provide that no injustice be done to any of the parties. Harvest State Bank v. ROI Investments, 228 Wis. 2d 733, 598 N.W.2d 571 (Ct. App. 1999), 98-2320.

846.01 Annotation In accordance with this section and the court’s equitable powers, the circuit court order “forever barred and foreclosed of all right, title, interest, lien or equity of redemption in and to said mortgaged premises.” A condominium association policy could not survive a foreclosure action to the extent it restricts a current owner’s use of condominium facilities based on the failure of the prior owners to pay their debts. Such a policy ties the debts of the prior owners to the units, in violation of well-established foreclosure. Walworth State Bank v. Abbey Springs Condominium Association, Inc. 2016 WI 30, 368 Wis. 2d 72, 878 N.W.2d 170, 14-0940.

846.01 Annotation When a lender does not validly accelerate payment of the amount due under a note and a foreclosure action brought on the borrower’s default on an installment payment under the note has been dismissed with prejudice, claim preclusion does not bar the lender from bringing a subsequent foreclosure action based upon the borrower’s continuing default on the same note. Federal National Mortgage Association v. Thompson, 2018 WI 57, 381 Wis. 2d 609, 912 N.W.2d 364, 16-1496.

846.01 Annotation Mortgage foreclosure as fraudulent conveyance: Is judicial foreclosure an answer to the Durrett problem? 1984 WLR 195.

846.01 Annotation Advising Clients Facing Foreclosure. Cummisford. Wis. Law. Dec. 2007.

846.01 Annotation Beyond Robo-signing: Mortgage Foreclosure Defense Basics. Nora. Wis. Law. April 2011.

846.02 846.02 Foreclosure; defendant may have assignment of mortgage.

846.02(1) (1) In a mortgage foreclosure action, any defendant may upon payment to the plaintiff or the plaintiff’s attorney, of the amount then owing thereon for principal, together with interest and all costs up to such time, demand the assignment of such mortgage to the defendant. The plaintiff shall upon such demand and a tender of the amount owing for principal, interest and costs, assign the mortgage to such defendant and the plaintiff shall be barred from further prosecuting such action. If dispute shall arise over the amount due for costs, application to fix the costs accrued shall be made to the court in which such action is pending.

846.02(2) (2) If such demand and tender is made after judgment, the plaintiff or the plaintiff’s assignee shall assign such judgment to such defendant.

846.02 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.02; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.02; 1993 a. 486.

846.04 846.04 Deficiency, judgment for.

846.04(1) (1) The plaintiff may, in the complaint, demand judgment for any deficiency that may remain due the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage. Judgment may be rendered for any deficiency remaining after applying the proceeds of sale to the amount due. The judgment for deficiency shall be ordered in the original judgment and separately rendered against the party liable on or after the confirmation of sale. The judgment for deficiency shall be entered in the judgment and lien docket and, except as provided in subs. (2) and (3), enforced as in other cases. A mortgage foreclosure deficiency judgment entered on or after October 14, 1997, on property under agricultural use, as defined in s. 91.01 (2), for at least 12 consecutive months during the preceding 36-month period shall be recorded as an agriculture judgment.

846.04(2) (2) Except as provided in sub. (3), if a mortgage foreclosure deficiency judgment is entered on property under agricultural use, as defined in s. 91.01 (2), for at least 12 consecutive months during the preceding 36-month period, an action on the deficiency judgment shall be commenced within 10 years after the date on which the mortgage foreclosure deficiency judgment is entered or be barred.

846.04(3) (3) If a mortgage foreclosure deficiency judgment was entered before January 1, 1990, on property devoted primarily to agricultural use, as defined in s. 91.01 (5), an action on the deficiency judgment shall be commenced within 2 years after October 14, 1997, or be barred. If the deficiency judgment remains unsatisfied in a mortgage foreclosure deficiency judgment action entered before October 14, 1997, the defendant in that action shall notify the clerk of circuit court of the existence of that deficiency judgment and of the date that an action on that deficiency judgment shall be commenced or be barred. Not later than 60 days prior to 2 years after October 14, 1997, if notified of an unsatisfied deficiency judgment by the defendant in that action, the clerk of each circuit court in which a mortgage foreclosure deficiency judgment on property devoted primarily to agricultural use, as defined in s. 91.01 (5), was entered before January 1, 1990, and remains unsatisfied, shall, upon payment by the defendant in that action of the costs of the publication and certified mail, do all of the following:

846.04(3)(a) (a) Publish a notice as a class 1 notice under ch. 985, in the official newspaper of the county where the mortgage foreclosure deficiency judgment was entered, stating that the party holding the mortgage foreclosure deficiency judgment is required to commence an action on the deficiency judgment prior to 2 years after October 14, 1997, or be barred from any further action on that deficiency judgment.

846.04(3)(b) (b) Notify by certified mail the primary plaintiff in the action for the mortgage foreclosure deficiency judgment that the plaintiff is required to commence an action on the deficiency judgment prior to 2 years after October 14, 1997, or be barred from any further action on that deficiency judgment.

846.04 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.04; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.04; 1993 a. 486; 1995 a. 224; 1997 a. 27; 2009 a. 28.

846.04 Annotation “Personally liable for the debt secured by the mortgage” has the same meaning in ss. 846.103 (2) and 846.04. “Personally liable” is a term of art used to distinguish the borrower’s liability, which is a personal obligation, from the mortgagor’s liability, which is an obligation limited to the property used to secure the note debt. Bank Mutual v. S.J. Boyer Construction, Inc. 2010 WI 74, 326 Wis. 2d 521, 785 N.W.2d 462, 08-0912.

846.04 Annotation There is no reasonable way to read sub. (1) and s. 846.101 to mean that a money judgment obtained on a second mortgage and note should count as a deficiency judgment for purposes of a foreclosure action on a separate indebtedness secured by a first mortgage. Harbor Credit Union v. Samp, 2011 WI App 40, 332 Wis. 2d 214, 796 N.W.2d 813, 10-0974.

846.05 846.05 Foreclosure for nonpayment of installment. An action for the foreclosure of a mortgage upon which there shall be due any interest or any installment of the principal and there shall be other installments to become due shall be dismissed upon the defendant’s bringing into court, before judgment, the principal and interest due, with the costs. If after judgment is entered in such case the defendant shall bring into court the principal and interest due, with the costs, proceedings on the judgment shall be stayed; but the court may enforce the judgment by a further order, upon a subsequent default in the payment of any installment of the principal, or of any interest thereafter to grow due.

846.05 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.05; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.05.

846.06 846.06 Sale in parcels. If in the cases mentioned in s. 846.05 the defendant shall not, before judgment, bring into court the amount so due with costs the court before rendering judgment shall ascertain by reference or otherwise the situation of the mortgaged premises and whether they can be sold in parcels without injury to the interests of the parties; and if it shall appear that they can be so sold the judgment shall direct a sale in parcels, specifying them, or so much thereof as will be sufficient to pay the amount due for principal, interests and costs; and such judgment shall remain as security for any subsequent default.

846.06 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.06; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.06.

846.07 846.07 Order of sale for other defaults. If, in the case mentioned in s. 846.06, there shall be any default subsequent to judgment in the payment of any installment or of any interest due upon such mortgage the court may, upon petition of the plaintiff, direct a sale of enough of the mortgaged premises, to be made under the judgment, to satisfy the amount due, with the costs of such petition and the proceedings thereon; and like proceedings shall be had as often as a default shall happen.

846.07 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.07; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.07.

846.08 846.08 Judgment for sale of whole; adjustment of parties’ rights. If, in any case mentioned in ss. 846.06 and 846.07 it shall appear that the mortgaged premises are so situated that they cannot be sold in parcels without injury to the interests of the parties or that the sale of the whole will be most beneficial to them the court may adjudge the sale of the whole in which case the proceeds of sale, after deducting the costs of the action and of sale, shall be applied to the payment of the sums due and to become due deducting from all sums not due, which do not bear interest, interest from the time of payment to the time when the same are payable or the court may direct the balance of the proceeds of sale, after paying the sum then due with such costs, to be placed at interest for the benefit of the plaintiff, to be paid to the plaintiff as such subsequent payments or installments shall become due, with the interest thereon. The surplus, after paying the amount due the plaintiff and costs, shall be paid to the party entitled thereto on the order of the court.

846.08 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.08; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.08; 1993 a. 486.

846.09 846.09 Amendments as to parties; process and pleading. In any action for the foreclosure of a mortgage, at any time after judgment and before a sale pursuant thereto, the plaintiff may be granted leave to amend the summons, complaint and all the proceedings in the action by making as defendant any person who is a proper or necessary party thereto. Such person so made a party shall be served with the summons in like manner as if originally a party, and may answer and defend, and all matters and proceedings as to the person shall be had and taken in like manner as if the person had been originally made a party thereto. After such person has been thus made a party and served, and the person’s rights adjudicated upon, the original judgment may be so amended as to bar and foreclose the person thereby, or to make any provisions in regard to the person’s rights and interests in like manner as it could have done had the person been made originally a party.

846.09 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.09; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.09; 1993 a. 486.

846.10 846.10 Foreclosure.

846.10(1) (1) If the plaintiff recovers the judgment shall describe the mortgaged premises and fix the amount of the mortgage debt then due and also the amount of each installment thereafter to become due, and the time when it will become due, and whether the mortgaged premises can be sold in parcels and whether any part thereof is a homestead, and shall adjudge that the mortgaged premises be sold for the payment of the amount then due and of all installments which shall become due before the sale, or so much thereof as may be sold separately without material injury to the parties interested, and be sufficient to pay such principal, interest and costs; and when demanded in the complaint, direct that judgment shall be rendered for any deficiency against the parties personally liable and, if the sale is to be by referee, the referee must be named therein.

846.10(2) (2) 

846.10(2)(a) (a) Any party may become a purchaser. Except for a sale under s. 846.101 or 846.102 and except as provided in pars. (b) and (c), no sale involving a one-family to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church, or a tax-exempt nonprofit charitable organization may be held except as follows:

846.10(2)(a)1. 1. If the mortgage was executed before April 27, 2016, upon the expiration of 12 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under s. 846.16 (1) and may be given within the 12-month period, except that the first printing of the notice shall not be made less than 10 months after the date when the judgment is entered, and except that the sale of a farm shall not be made or advertised until the expiration of one year from the date when the judgment is entered.

846.10(2)(a)2. 2. If the mortgage was executed on or after April 27, 2016:

846.10(2)(a)2.a. a. Except as provided in subd. 2. b., upon the expiration of 6 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under s. 846.16 (1) and may be given within the 6-month period, except that the first printing of the notice shall not be made less than 4 months after the date when the judgment is entered, and except that the sale of a farm shall not be made or advertised until the expiration of 6 months from the date when the judgment is entered.

846.10(2)(a)2.b. b. Upon motion of the mortgagor before judgment is entered, if the court finds that the mortgagor is attempting in good faith to sell the mortgaged premises and has entered into a listing agreement with a real estate broker licensed under ch. 452 to sell the mortgaged premises, upon the expiration of 8 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under s. 846.16 (1) and may be given within the 8-month period, except that the first printing of the notice shall not be made less than 6 months after the date when the judgment is entered, and except that the sale of a farm shall not be made or advertised until the expiration of 8 months from the date when the judgment is entered.

846.10(2)(b) (b) In all cases the parties may, by stipulation filed with the clerk, consent to an earlier sale.

846.10(2)(c) (c) Sales under foreclosure of mortgages given by any railroad corporation may be made immediately after the rendition of the judgment.

846.10(3) (3) The proceeds of every sale shall be applied to the discharge of the debt adjudged to be due and the costs awarded; and if there shall be any surplus it shall be subject to the order of the court. If any surplus remains in the court for 3 months, without being applied for, the court shall direct the same to be put out at interest for the benefit of the party entitled thereto to be paid to the party upon the order of such court.

846.10(4) (4) The court may order in the judgment of foreclosure that all sums advanced by the plaintiff for insurance, necessary repairs and taxes not included in the judgment may be added to the judgment by order at any time after the entry thereof.

846.10 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.10; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.10; 1977 c. 304; 1993 a. 486; 2015 a. 376; 2017 a. 104, 208.

846.10 Annotation A judgment of foreclosure and sale is a final judgment appealable as a matter of right under s. 808.03 (1). An appeal from an order confirming the sale does not enable the appellant to challenge the judgment of foreclosure. Shuput v. Lauer, 109 Wis. 2d 164, 325 N.W.2d 321 (1982).

846.10 Annotation There is no statutory requirement that sale proceeds be applied first to the portion of the debt that is guaranteed. Crown Life Insurance Co. v. LaBonte, 111 Wis. 2d 26, 330 N.W.2d 201 (1983).

846.10 Annotation In a foreclosure action under s. 703.16 (8) based on a failure to pay condominium fees, sub. (1) could not be applied sensibly to require a statement of installments to become due because monthly assessments were in varying amounts. The 12-month redemption period under s. 846.10 (2) is applicable to such foreclosures. Geneva National Community Association, Inc. v. Friedman, 228 Wis. 2d 572, 598 N.W.2d 600 (Ct. App. 1999), 98-1010.

846.10 Annotation Although a judgment must state whether any part of the property is homestead, if the evidence establishes a property is nonhomestead, the judgment need not state that fact. Geneva National Community Association, Inc. v. Friedman, 228 Wis. 2d 572, 598 N.W.2d 600 (Ct. App. 1999), 98-1010.

846.10 Annotation No statute provides that a creditor may not foreclose on a mortgage because the creditor has, in a prior action, obtained a judgment of foreclosure on another mortgage securing the same debt and a deficiency judgment. Bank of Sun Prairie v. Marshall Development Co. 2001 WI App 64, 242 Wis. 2d 355, 626 N.W.2d 319, 00-1076.

846.10 Annotation The Federal Farmers Home Administration is not subject to state exemption laws in the foreclosure of its mortgages. U.S. v. Einum, 821 F. Supp. 1283 (1993).

846.101 846.101 Foreclosure without deficiency; 20-acre parcels.

846.101(1) (1) If the mortgagor has agreed in writing at the time of the execution of the mortgage to the provisions of this section, and the foreclosure action involves a one-family to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church, or a tax-exempt nonprofit charitable organization, the plaintiff in a foreclosure action of a mortgage on real estate of 20 acres or less, which mortgage is recorded subsequent to January 22, 1960, may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage, and to consent that the mortgagor, unless he or she abandons the property, may remain in possession of the mortgaged premises and be entitled to all rents, issues, and profits therefrom to the date of confirmation of the sale by the court.

846.101(2) (2) 

846.101(2)(a) (a) When the plaintiff so elects, judgment shall be entered as provided in this chapter, except that no judgment for deficiency may be ordered nor separately rendered against any party who is personally liable for the debt secured by the mortgage.

846.101(2)(b) (b) If the mortgage was executed before April 27, 2016, the sale of the mortgaged premises shall be made upon the expiration of 6 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under s. 846.16 (1) and may be given within the 6-month period, except that the first printing of the notice shall not be made less than 4 months after the date when the judgment is entered.

846.101(2)(c) (c) If the mortgage was executed on or after April 27, 2016, the sale of the mortgaged premises shall be made as follows:

846.101(2)(c)1. 1. Except as provided in subd. 2., upon the expiration of 3 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under s. 846.16 (1) and may be given within the 3-month period, except that the first printing of the notice shall not be made less than one month after the date when the judgment is entered.

846.101(2)(c)2. 2. Upon motion of the mortgagor before judgment is entered, if the court finds that the mortgagor is attempting in good faith to sell the mortgaged premises and has entered into a listing agreement with a real estate broker licensed under ch. 452 to sell the mortgaged premises, upon the expiration of 5 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under s. 846.16 (1) and may be given within the 5-month period, except that the first printing of the notice shall not be made less than 3 months after the date when the judgment is entered.

846.101 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.101; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.101; 1977 c. 304; 2009 a. 180; 2015 a. 376; 2017 a. 104, 208.

846.101 Annotation An election by a mortgagee to foreclose under s. 816.101, [now s. 846.101] on one or more mortgages securing a debt does not bar foreclosure upon the remaining mortgages but does bar pursuit of a personal deficiency. Glover v. Marine Bank of Beaver Dam, 117 Wis. 2d 684, 345 N.W.2d 449 (1984).

846.101 Annotation There is no reasonable way to read s. 846.04 (1) and this section to mean that a money judgment obtained on a second mortgage and note should count as a deficiency judgment for purposes of a foreclosure action on a separate indebtedness secured by a first mortgage. Harbor Credit Union v. Samp, 2011 WI App 40, 332 Wis. 2d 214, 796 N.W.2d 813, 10-0974.

846.101 Annotation In a foreclosure was under s. 846.101, the Veterans Administration was not estopped from pursuing a deficiency against a veteran under an agreement to indemnify the VA for the VA’s loss on a loan guaranty. U.S. v. Davis, 961 F.2d 603 (1992).

846.102 846.102 Abandoned premises.

846.102(1) (1) In an action for enforcement of a mortgage lien, and upon motion of the plaintiff or the city, town, village, or county where the mortgaged premises are located, if the court makes an affirmative finding upon proper evidence being submitted that the mortgaged premises have been abandoned by the mortgagor and the mortgagor’s assigns, judgment shall be entered as provided in sub. (3). In this section, “abandoned” means the relinquishment of possession or control of the mortgaged premises whether or not the mortgagor or the mortgagor’s assigns have relinquished equity and title.

846.102(2) (2) In addition to the parties to the action to enforce a mortgage lien, a representative of the city, town, village, or county where the mortgaged premises are located may provide testimony or evidence to the court under sub. (1) relating to whether the premises have been abandoned by the mortgagor. In determining whether the mortgaged premises have been abandoned, the court shall consider the totality of the circumstances, including the following:

846.102(2)(a) (a) Boarded, closed, or damaged windows or doors to the premises.

846.102(2)(b) (b) Missing, unhinged, or continuously unlocked doors to the premises.

846.102(2)(c) (c) Terminated utility accounts for the premises.

846.102(2)(d) (d) Accumulation of trash or debris on the premises.

846.102(2)(e) (e) At least 2 reports to law enforcement officials of trespassing, vandalism, or other illegal acts being committed on the premises.

846.102(2)(f) (f) Conditions that make the premises unsafe or unsanitary or that make the premises in imminent danger of becoming unsafe or unsanitary.

846.102(3) (3) 

846.102(3)(a) (a) If the court finds that the mortgaged premises have been abandoned under sub. (1), judgment shall be entered as provided in s. 846.10, except that the plaintiff shall, no later than 12 months from the date when the judgment is entered, do one of the following:

846.102(3)(a)1. 1. Hold a sale of the mortgaged premises and have the sale confirmed under s. 846.16 (2m). Any sale of the mortgaged premises may be held at any time after the expiration of 5 weeks from the date when the judgment is entered. Notice of the time and place of sale shall be given under s. 846.16 (1) and may be given at any time within the 12-month period.

846.102(3)(a)2. 2. Release or satisfy the mortgage lien and vacate the judgment of foreclosure. If the plaintiff presents evidence that the mortgage lien has been released or satisfied and requests that the judgment of foreclosure be vacated, the court shall vacate the judgment of foreclosure with prejudice.

846.102(3)(b) (b) If, 12 months after the date when the judgment is entered, the plaintiff has not completed an action under par. (a) 1. or 2., any party to the action or the city, town, village, or county where the mortgaged premises are located may petition the court for an order compelling a sale of the mortgaged premises.