Chapter 846

846.11 846.11 Homestead, how sold. If any defendant appear and answer that any portion of the mortgaged premises is an exempt homestead the court shall ascertain whether such be the fact, and if so whether the part of the mortgaged premises not included in the exempt homestead can be sold separately therefrom without injury to the interests of the parties, and in that case shall direct in the judgment that the exempt homestead shall not be sold until all the other mortgaged lands have been sold.

846.11 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.11; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.11.

846.11 Annotation This statute gives the option to the mortgagor to insist that when a mortgage covers both homestead and nonhomestead property, the nonhomestead property be sold first. That issue is irrelevant if the entire mortgaged property is homestead. Anchor Savings & Loan Association v. Week, 62 Wis. 2d 169, 213 N.W.2d 737 (1974).

846.11 Annotation This section is inapplicable when separate mortgages cover homestead and nonhomestead property. Valley Bank v. Jennings, 198 Wis. 2d 857, 544 N.W.2d 243 (Ct. App. 1995), 94-3197.

846.11 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).

846.12 846.12 Interest; waste. The amount adjudged due shall draw interest at the rate provided to be paid on the mortgage debt, but shall not exceed the minimum rate prevailing immediately prior to the default on which the foreclosure is based, until the date of sale or payment, and all the installments which shall become due after the date of such judgment shall draw interest at the same rate from the time the same become due. The judgment may enjoin the defendants and all persons claiming under them from committing waste or doing any act that may impair the value of the mortgaged premises.

846.12 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.12; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.12.

846.13 846.13 Redemption from and satisfaction of judgment. The mortgagor, the mortgagor’s heirs, personal representatives or assigns may redeem the mortgaged premises at any time before the sale by paying to the clerk of the court in which the judgment was rendered, or to the plaintiff, or any assignee thereof, the amount of such judgment, interest thereon and costs, and any costs subsequent to such judgment, and any taxes paid by the plaintiff subsequent to the judgment upon the mortgaged premises, with interest thereon from the date of payment, at the same rate. On payment to such clerk or on filing the receipt of the plaintiff or the plaintiff’s assigns for such payment in the office of said clerk the clerk shall thereupon discharge such judgment, and a certificate of such discharge, duly recorded in the office of the register of deeds, shall discharge such mortgage of record to the extent of the sum so paid.

846.13 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.13; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.13; 1993 a. 486.

846.13 Cross-reference Cross-reference: See s. 846.25, relative to discharge after foreclosure.

846.13 Annotation A bankruptcy court reduction of a mortgage lien does not affect the payment required for redemption. Hobl v. Lord, 162 Wis. 2d 226, 470 N.W.2d 265 (1991).

846.13 Annotation A circuit court has no authority to accept a plan of redemption that fails to provide for immediate, full payment. A mortgagor may only redeem the mortgaged property for the full amount of the foreclosure judgment, plus interest, costs, and taxes. M&I Marshall & Ilsley v. Kazim Investment, Inc. 2004 WI App 13, 269 Wis. 2d 479, 678 N.W.2d 479, 03-0404.

846.13 Annotation Sale under this section means confirmation of the sale. That under M&I a circuit court has no authority to accept a plan of redemption that fails to provide for immediate full payment does not contradict that fact. State Bank v. Sechen, 2005 WI App 253, 288 Wis. 2d 168, 707 N.W.2d 576, 05-0482.

846.13 Annotation Someone must notify the court when a redeeming payment is made, but this section does not require that it be the mortgagor. By the plain language of the first sentence, redemption occurs upon payment. The second sentence does not mention redemption, does not give any suggestion that the receipt must be filed within any particular time limit, and does not state that filing the receipt is a necessary prerequisite for redemption to occur or that redemption is void if a receipt is not filed. Osterberg v. Lincoln State Bank, 2006 WI App 237, 297 Wis. 2d 30, 725 N.W.2d 634, 06-0068.

846.13 Annotation This section does not apply to a junior lienholder. Section 846.15 specifically addresses junior lienholders. In practice, the “right to redeem” may be used loosely to include both a mortgagor’s right to redeem under s. 846.13 and a junior lienholder’s right under s. 846.15 to pay the judgment and become subrogated to the plaintiff’s rights in the judgment. However, when a mortgagor pays the plaintiff the amount of the judgment, the judgment is discharged and the mortgagor retains title. When a junior lienholder pays the plaintiff the amount of the judgment, the junior lienholder neither retains title, since it never had it, nor acquires title; rather, the junior lienholder acquires the rights the plaintiff has as a result of the judgment. JP Morgan Chase Bank, NA v. Green, 2008 WI App 78, 311 Wis. 2d 715, 753 N.W.2d 536, 07-1753.

846.13 Annotation A circuit court could reasonably exercise its discretion to adjourn a scheduled confirmation hearing to allow a mortgagor additional time to make a promised redemption payment. However, it would not be an misuse of discretion for a court to decline such a request and proceed to address the only issue relevant to a confirmation hearing — whether the sale at public auction should be confirmed. A mortgagor who has the ability and desire to redeem must make payment before the commencement of a properly scheduled confirmation hearing in order to avoid the risk of losing the opportunity to redeem as permitted under this section. Harbor Credit Union v. Samp, 2011 WI App 40, 332 Wis. 2d 214, 796 N.W.2d 813, 10-0974.

846.14 846.14 Redemption of part. In case the mortgagor, the mortgagor’s heirs, representatives or assigns shall desire to pay a portion of such judgment, taxes, interest and costs, so as to relieve any distinct lot or parcel of the premises which can be sold separately under such judgment from the lien thereof and of such mortgage thereon, the court, on application of such person and on notice to the parties to the action, may, if the amount to be paid therefor is not agreed upon, ascertain and adjudge the proportion of such judgment, taxes, interest and costs to be paid for the purpose aforesaid; and when the amount so adjudged shall be paid as aforesaid it shall relieve such distinct lot or parcel from such judgment and the lien of such mortgage thereon and shall satisfy such judgment to the amount so paid. Any heir, devisee, grantee or assignee of the mortgagor, owning an undivided interest in the mortgaged premises, subject to the lien of the mortgage, may redeem such undivided interest from such judgment and the lien of the mortgage thereon by paying as aforesaid a sum that will bear the same proportion to the whole of such judgment, taxes, costs and interest as the interest proposed to be redeemed bears to the whole of the mortgaged premises.

846.14 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.14; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.14; 1993 a. 486.

846.15 846.15 Plaintiff’s rights acquired by junior lienor. Any person having a junior lien upon the mortgaged premises or any part thereof or interest therein, may, at any time before such sale, pay to the clerk of court, or the plaintiff or the plaintiff’s assignee, the amount of such judgment, taxes, interest and costs, and costs subsequent to judgment, and shall thereupon be subrogated to all the rights of the plaintiff as to such judgment.

846.15 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.15; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.15; 1993 a. 486.

846.155 846.155 Eligible bidders at foreclosure sales; affidavit required for confirmation; penalties for false representation.

846.155(1) (1) Definitions. In this section:

846.155(1)(a) (a) “Entity” means a person other than an individual.

846.155(1)(b) (b) “Taxes” means general property taxes, as defined in s. 74.01 (1), special assessments, as defined in s. 74.01 (3), special charges, as defined in s. 74.01 (4), or special taxes, as defined in s. 74.01 (5).

846.155(1)(c) (c) “Third-party bidder” means a person that intends to submit a bid at a sale of mortgaged premises and that is not any of the following:

846.155(1)(c)1. 1. A party in the foreclosure action.

846.155(1)(c)2. 2. An agent of a party in the foreclosure action.

846.155(1)(c)3. 3. An assignee of the plaintiff in the foreclosure action.

846.155(2) (2) Minimum bidder qualifications. No 3rd-party bidder may submit a bid at a sale of mortgaged premises unless the 3rd-party bidder meets all of the following qualifications:

846.155(2)(a) (a) The 3rd-party bidder does not own an interest in property in this state against which taxes have been levied that are more than 120 days delinquent.

846.155(2)(b) (b) The 3rd-party bidder is not directly or indirectly owned, managed, or controlled, in whole or in part, by a person that owns an interest in property in this state against which taxes have been levied that are more than 120 days delinquent.

846.155(2)(c) (c) The 3rd-party bidder does not directly or indirectly own, manage, or control, in whole or in part, an entity that owns an interest in property in this state against which taxes have been levied that are more than 120 days delinquent.

846.155(2)(d) (d) No judgment against the 3rd-party bidder related to a violation of a state or local building code with respect to property in this state has been rendered that is unsatisfied.

846.155(2)(e) (e) No judgment against a person that directly or indirectly owns, manages, or controls, in whole or in part, the 3rd-party bidder related to a violation of a state or local building code with respect to property in this state has been rendered that is unsatisfied.

846.155(2)(f) (f) No judgment against an entity directly or indirectly owned, managed, or controlled, in whole or in part, by the 3rd-party bidder related to a violation of a state or local building code with respect to property in this state has been rendered that is unsatisfied.

846.155(2)(g) (g) In submitting a bid at the sale, the 3rd-party bidder is not acting on behalf of or as part of an agreement with a person that does not meet the qualifications described in pars. (a) to (f).

846.155(3) (3) Prebidding acknowledgments. Before allowing a 3rd-party bidder to submit a bid at a sale of mortgaged premises, the sheriff or referee may require the 3rd-party bidder to confirm any of the following:

846.155(3)(a) (a) The 3rd-party bidder meets all of the qualifications described in sub. (2).

846.155(3)(b) (b) If the 3rd-party bidder submits a bid at the sale, the 3rd-party bidder will not assign the bid to a person that, if the person had submitted a bid directly at the sale, would not have met the qualifications described in sub. (2).

846.155(3)(c) (c) If the 3rd-party bidder is the purchaser of the mortgaged premises, the 3rd-party bidder will file the affidavit described in sub. (5).

846.155(3)(d) (d) The 3rd-party bidder is aware that, if a false representation is made in the affidavit described in sub. (5), the 3rd-party bidder, and the individual acting on behalf of the 3rd-party bidder, may be subject to the penalties described in sub. (6) (c) and (d).

846.155(4) (4) Assignment of bid to unqualified bidder prohibited. No person that submits a bid at a sale of mortgaged premises, nor any assignee of that person, may assign that bid to a person that, if the person had submitted a bid directly at the sale, would not have met the qualifications described in sub. (2). This subsection does not apply to an assignment of a bid to the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation.

846.155(5) (5) Filing affidavit of minimum bidder qualifications.

846.155(5)(a) (a) If the grantee of a deed executed under s. 846.16 (1) (a) is not a party in the foreclosure action or the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, the grantee shall, no later than the time scheduled for confirmation of sale, file with the clerk of court an affidavit affirming that, as of the date on which the affidavit is filed, the grantee meets all of the qualifications described in sub. (2). The affidavit also shall identify the name and street address of a person in this state that is authorized to accept service of process for the grantee. If the grantee is not an individual, an individual who is authorized to act on behalf of the grantee shall sign the affidavit.

846.155(5)(b) (b) The director of state courts shall provide to the clerk of court in each county a form for use in filing affidavits required under this subsection. The form shall require a person that files the affidavit to acknowledge that the person is aware that, if a false representation is made in the affidavit, the person, and the individual who signs the affidavit on behalf of the person, may be subject to the penalties described in sub. (6).

846.155(6) (6) Affidavit required for confirmation of sale; penalties for false representations.

846.155(6)(a) (a) If a grantee of a deed executed under s. 846.16 (1) (a) is not a party in the foreclosure action or the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, the court may not confirm the sale until the grantee files the affidavit required under sub. (5).

846.155(6)(b) (b) At any time before the court confirms a sale of mortgaged premises, a party in the foreclosure action or the city, village, town, or county where the mortgaged premises are located may provide to the court testimony or evidence that the affidavit filed by a grantee under sub. (5) contains a false representation.

846.155(6)(c) (c) If the court determines that the affidavit filed by a grantee under sub. (5) contains a false representation, the court may refuse to confirm the sale and may order all of the following:

846.155(6)(c)1. 1. That the grantee shall forfeit the amount of the deposit or down payment delivered to the clerk of court under s. 846.16 (1r) (b).

846.155(6)(c)2. 2. That the clerk of court shall pay the amount forfeited under subd. 1. to the parties that would be entitled to the proceeds of the sale as ordered by the court.

846.155(6)(c)3. 3. That the mortgaged premises shall be resold.

846.155(6)(c)4. 4. That the clerk of court shall destroy the deed executed to the purchaser, and that deed is of no effect.

846.155(6)(d) (d) If the court determines that the affidavit filed by a grantee under sub. (5) contains a false representation that was made knowingly, in addition to any of the penalties imposed under par. (c), the court may order the grantee, the individual who signed the affidavit on behalf of the grantee, or both to forfeit up to $1,000 and may bar the grantee, the individual who signed the affidavit on behalf of the grantee, or both from submitting a bid at any sale of mortgaged premises conducted in the county for a period of time not to exceed one year from the date on which the order is entered.

846.155 History History: 2017 a. 339; 2021 a. 238 s. 45.

846.16 846.16 Notice of sale; sale; confirmation; transfer.

846.16(1) (1) Notice of sale.

846.16(1)(a) (a) Notice of in-person sale. Except as provided in par. (bm), the sheriff or referee who makes sale of mortgaged premises, under a judgment therefor, shall give notice of the time and place of sale as provided under s. 815.31 or in such other manner as the court shall in the judgment direct. The sheriff or referee shall include in the notice of sale the street address, if any, of the real estate to be sold and the sum of the judgment.

846.16(1)(bm) (bm) Notice of Internet-based sale. If a sale is conducted under sub. (1g) (b), the sheriff or referee who makes sale of mortgaged premises shall give notice of the time and place of sale as provided under par. (a), except as follows:

846.16(1)(bm)1. 1. Section 815.31 (1) does not apply to the sale. The sheriff or referee shall publicly advertise the time and place of holding the sale by posting, at least 3 weeks prior to the date of the sale, a written notice describing the mortgaged premises to be sold with reasonable certainty in one public place in the city, village, or town where the mortgaged premises are located and, if the county where the mortgaged premises are located maintains an Internet site, on that Internet site. If the city, village, or town where the mortgaged premises are located maintains an Internet site, the city, village, or town may post the notice on that Internet site.

846.16(1)(bm)2. 2. The notice also shall include all of the following information:

846.16(1)(bm)2.a. a. A statement that the sale will be conducted using an Internet-based auction.

846.16(1)(bm)2.b. b. The address of the Internet site where the Internet-based auction will be conducted.

846.16(1)(bm)2.c. c. The time period during which bids for the mortgaged premises may be submitted.

846.16(1)(bm)2.d. d. Instructions on how the general public may observe the Internet-based auction and on how a person may participate in the auction, including any prerequisites to participation that may apply, or the address of an Internet site where those instructions are posted.

846.16(1)(bm)2.e. e. A description of the terms of sale that apply to the Internet-based auction, including a description of any lien or other encumbrance on the mortgaged premises that has priority over the mortgage that is the subject of the foreclosure action.

846.16(1)(cm) (cm) Notice to department of veterans affairs. In addition to providing notice of sale under par. (a) or (bm), if the department of veterans affairs is a party in the foreclosure action, the judgment shall direct that notice of sale be given by registered mail, return receipt requested, to the department at Madison, Wisconsin, at least 3 weeks prior to the date of sale.

846.16(1)(d) (d) In any public place or on any Internet site where the sheriff or referee posts a notice of sale, the sheriff or referee also shall post an explanation regarding the minimum bidder qualifications under s. 846.155 (2) that a participant in the sale must meet and a statement that, before the sale may be confirmed, a purchaser that is not a party in the foreclosure action must submit an affidavit to the court affirming that the purchaser meets those minimum bidder qualifications.

846.16(1g) (1g) Sale of mortgaged premises.

846.16(1g)(a) (a) Payment of purchase price and costs of sale; deposit or down payment.

846.16(1g)(a)1. 1. Except as provided under subd. 2. and this subdivision, the sheriff or referee may not accept less than $100 as a deposit or down payment from the purchaser at a sale of mortgaged premises. The sheriff or referee shall deliver the amount of the deposit or down payment to the clerk of court as provided in sub. (1r) (b) 2. b., and the purchaser shall pay the balance of the purchase price to the clerk of court upon the confirmation of the sale as provided in sub. (2m) (b). If the highest bid is less than $100, the purchaser shall give the bid amount as a deposit or down payment, and the sheriff or referee shall deliver the entire amount to the clerk of court.

846.16(1g)(a)2. 2. If the judgment creditor is the purchaser at a sale of mortgaged premises, the judgment creditor may give the judgment creditor’s receipt to the sheriff or referee for any sum not exceeding the sum due to the judgment creditor. The judgment creditor’s receipt is considered a down payment. If the judgment creditor is the purchaser and the sum due to the judgment creditor is less than the purchase price, the judgment creditor shall pay the difference to the sheriff or referee at the time of sale.

846.16(1g)(a)3. 3. In all cases, the purchaser at the sale of the mortgaged premises shall pay the cost of sale.

846.16(1g)(b) (b) Internet-based sale.

846.16(1g)(b)1. 1. A county may enact an ordinance that requires the sheriff or referee to conduct, or to engage an auctioneer registered under ch. 480 to conduct, sales of mortgaged premises in the county using an Internet-based auction. If a county enacts such an ordinance, all sales of mortgaged premises in the county shall be conducted using Internet-based auctions.

846.16(1g)(b)2. 2. If a sale is conducted using an Internet-based auction, the person conducting the sale may accept payment of any amounts under par. (a) by credit card, debit card, or other electronic payment method and may charge a surcharge to the payer to recover charges associated with accepting the electronic payment.

846.16(1g)(b)3. 3. If a sale is conducted using an Internet-based auction, the person conducting the sale shall, on the Internet site on which the Internet-based auction is conducted, provide any potential bidder with a conspicuous statement identifying any lien or other encumbrance described in the notice under sub. (1) (bm) 2. e.

846.16(1r) (1r) Procedures after sale.

846.16(1r)(a) (a) Execution of deed. After a sale of mortgaged premises under sub. (1g) and upon compliance with the terms of the sale, the sheriff or referee shall make and execute to the purchaser, the purchaser’s assigns, or personal representatives a deed of the mortgaged premises sold that sets forth each parcel of land sold to the purchaser and the purchase price paid for each parcel.

846.16(1r)(b) (b) Deductions from proceeds; transmittals to clerk of court. No later than 10 days after a sale of mortgaged premises under sub. (1g), the sheriff or referee shall do all of the following:

846.16(1r)(b)1. 1. File a report of the sale with the clerk of court.

846.16(1r)(b)2. 2. Deliver to the clerk of court all of the following:

846.16(1r)(b)2.a. a. The deed to the mortgaged premises executed under par. (a).

846.16(1r)(b)2.b. b. After deducting the costs and expenses of the sale, unless the court orders otherwise, the proceeds of the sale ordered by the court.

846.16(1r)(c) (c) Deed held until confirmation. The clerk of court shall hold a deed delivered to the clerk of court under par. (b) 2. a. until confirmation of the sale under sub. (2m).

846.16(2m) (2m) Confirmation.

846.16(2m)(a) (a) Preparation of real estate transfer return. If the purchaser is not the judgment creditor, before the court may confirm the sale, the purchaser shall provide the judgment creditor with any information required for the judgment creditor to complete the real estate transfer return under s. 77.22.

846.16(2m)(ae) (ae) Determination of fair value of mortgaged premises. If mortgaged premises sell for less than the amount due and to become due on the mortgage debt and costs of sale, there is no presumption that the mortgaged premises sold for their fair value, and the court may not confirm the sale or render a judgment for deficiency until the court is satisfied that the fair value of the mortgaged premises sold has been credited on the mortgage debt, interest, and costs.

846.16(2m)(am) (am) Payment of sale proceeds upon confirmation. Upon confirmation of a sale of mortgaged premises, the clerk of court shall pay to the parties entitled thereto, or to their attorneys, the proceeds of the sale.