Chapter 846

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.

846.16(2m)(as) (as) Effect of deed upon confirmation. Unless the deed is destroyed as provided in sub. (4) (a), upon confirmation of a sale of mortgaged premises, the deed executed under sub. (1r) (a) shall vest in the purchaser, the purchaser’s assigns, or personal representatives all the right, title, and interest of the mortgagor, the mortgagor’s heirs, personal representatives, and assigns in and to the premises sold and is a bar to all claim, right of equity of redemption therein, of and against the parties to the action, their heirs, personal representatives, and all persons claiming under them subsequent to the filing of the notice of the pendency of the action in which such judgment was rendered; and the purchaser, the purchaser’s heirs, or assigns shall be let into the possession of the premises so sold on production of the deed or a duly certified copy of the deed, and the court may, if necessary, issue a writ of assistance to deliver that possession.

846.16(2m)(b) (b) Payments by purchaser. No later than 10 days after the court confirms the sale, the purchaser shall pay to the court all of the following:

846.16(2m)(b)1. 1. The amount of the transfer fee under s. 77.22, if any.

846.16(2m)(b)2. 2. The amount of the fee under s. 59.43 (2) to record all of the following:

846.16(2m)(b)2.a. a. The deed to the mortgaged premises delivered under sub. (1r) (b) 2. a.

846.16(2m)(b)2.b. b. Any other document required for the register of deeds to record the deed.

846.16(2m)(b)3. 3. Any part of the purchase price remaining to be paid.

846.16(2m)(c) (c) Delivery of real estate transfer return receipt. No later than 10 days after the court confirms the sale, the judgment creditor shall provide to the court the receipt for submitting a transfer return under s. 77.22.

846.16(3m) (3m) Transmittal to register of deeds. Upon the court confirming a sale of mortgaged premises and upon compliance by the purchaser with the terms of the sale and the payment of any balance of the sale price to be paid, unless otherwise ordered by the court, the clerk of court shall do one of the following to transmit the deed to the mortgaged premises received under sub. (1r) (b) 2. a. to the register of deeds for recording:

846.16(3m)(am) (am) Deliver the deed to the mortgaged premises received under sub. (1r) (b) 2. a., the receipt for submitting a transfer return under s. 77.22, the amount due under s. 59.43 (2) to record the deed and any other document required to record the deed, and the transfer fee, if any, to the register of deeds.

846.16(3m)(bm) (bm) Notify the register of deeds that the deed to the mortgaged premises received under sub. (1r) (b) 2. a., the receipt for submitting a transfer return under s. 77.22, the amount due under s. 59.43 (2) to record the deed and any other document required to record the deed, and the transfer fee, if any, are available in the clerk’s office. If a register of deeds is notified under this paragraph, the register of deeds shall retrieve the documents and fees from the clerk of courts within a reasonable period of time.

846.16(4) (4) No confirmation of sale; effect of failure to comply with confirmation requirements; resale.

846.16(4)(a) (a) If any of the requirements under sub. (2m) (a) and (b) are not satisfied and the purchaser is not the judgment creditor, the court shall order the purchaser to forfeit the amount of the purchaser’s deposit or down payment delivered to the clerk of court under sub. (1r) (b) 2. b., and the clerk of court shall pay that amount to the parties that would be entitled to the proceeds of the sale as ordered by the court. The court shall also order that the mortgaged premises be resold. The clerk of court shall destroy the deed executed to the defaulting purchaser under sub. (1r) (a), and that deed is of no effect.

846.16(4)(b) (b) If any of the requirements under sub. (2m) (b) and (c) are not satisfied and the purchaser is the judgment creditor, the court may order the purchaser to forfeit the greater of the purchaser’s deposit or $500 and order the purchaser to comply with sub. (2m) (b) and (c) so that the mortgaged property may be sold to the purchaser.

846.16(4)(c) (c) If the court does not confirm a sale of mortgaged premises for a reason other than a failure to satisfy a requirement under sub. (2m) (a), (b), or (c), the clerk of court shall return the deposit or down payment delivered to the clerk of court under sub. (1r) (b) 2. b. to the purchaser, and the court shall order the mortgaged premises to be resold. The clerk of court shall destroy the deed received under sub. (1r) (b) 2. a., and that deed is of no effect.

846.16 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.16; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.16; 1989 a. 31; 1993 a. 486; 2015 a. 60; 2017 a. 104 ss. 10 to 20, 22 to 26; 2017 a. 208 ss. 10 to 34, 36; 2017 a. 339; 2017 a. 364 s. 49; 2021 a. 238 s. 45.

846.16 Annotation The trial court should determine “fair value” under s. 846.165 (2) [now s. 846.16 (2m) (ae)] even though the bid does not shock the court’s conscience. First Wisconsin National Bank of Oshkosh v. KSW Inv. 71 Wis. 2d 359, 238 N.W.2d 123 (1976).

846.16 Annotation The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings and Loan Asso. v. Barkwood Landscaping Co., Inc. 93 Wis. 2d 190, 286 N.W.2d 581 (1980).

846.16 Annotation An appeal from an order confirming sale does not enable the appellant to challenge a judgment of foreclosure. Shuput v. Lauer, 109 Wis. 2d 164, 325 N.W.2d 321 (1982).

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

846.16 Annotation “Fair value” under s. 846.165 (2) [now s. 846.16 (2m) (ae)] is determined by the property’s sale value. The court may consider costs of selling, holding, or carrying the property only to the extent that they affect the sale value. First Financial Savings Assoc. v. Spranger, 156 Wis. 2d 440, 456 N.W.2d 897 (Ct. App. 1990).

846.16 Annotation That the balance of the purchase price be paid within 10 days of confirmation of sale or be forfeited is mandatory and is not waivable by the court as a matter of equity. The purchaser has a right to notice of when the sale has been confirmed, when the mortgagor’s redemption period ends, and when the 10-day payment period expires. GMAC Mortgage Corp. v. Gisvold, 215 Wis. 2d 459, 572 N.W.2d 466 (1998), 96-1663.

846.16 Annotation Because s. 703.10 (6) prohibits condominium bylaws from affecting the transfer of title to a condominium unit, a bylaw prohibiting the sale of any unit to an owner who would not reside in the unit could not be applied to prevent the confirmation of a foreclosure sale to the high bidder who admitted he would not occupy the premises. Also, the potential failure to occupy the unit had no recognized legal relationship to the confirmation of the sheriff’s sale and the transfer of title. Bankers Trust Company of California, N.A. v. Bregant, 2003 WI App 86, 261 Wis. 2d 855, 661 N.W.2d 498, 02-2085.

846.16 Annotation Under s. 846.165 (2) [now s. 846.16 (2m) (ae)], when a creditor seeks a deficiency judgment, there is no presumption that the property sold for fair value. From that, it follows that when the mortgagee does not seek a deficiency judgment, there is a presumption. The statute does not eliminate the requirement that the court find fair value. A tax assessment, like an appraisal, can be viewed as a measure of fair value. Each case must be considered on its merits. Bank of New York v. Mills, 2004 WI App 60, 270 Wis. 2d 790, 678 N.W.2d 332, 03-1339.

846.16 Annotation This section does not clarify when the 10-day period for paying the remaining purchase price begins to run after a case is remitted following an appeal. When the appeals process interrupts a purchaser’s ability to pay the remaining balance of the purchase price, the purchaser is entitled, upon remand, to notice from the circuit court as to when the 10-day period begins to run. First Banking Center v. Twelfth Street Investors LLC, 2011 WI App 103, 336 Wis. 2d 150, 805 N.W.2d 381, 10-0646.

846.16 Annotation Section 846.165 (2) [now sub. (2m) (ae)] does not apply to a credit toward a judgment on a guaranty. Rather, the provision applies to the relationship between only the mortgagee and mortgagor that signed the promissory note underlying the mortgage. Therefore, that provision cannot be read as requiring a circuit court to determine the amount of a credit to be applied to a judgment on a guaranty when confirming a foreclosure sale. Horizon Bank, National Association v. Marshalls Point Retreat LLC, 2018 WI 19, 380 Wis. 2d 60, 908 N.W.2d 797, 16-0832.

846.16 Annotation When an action for foreclosure against a mortgagor and an action for a money judgment on a guaranty are brought in the same proceeding, the circuit court may, in its discretion, decide the separate questions of fair value for purposes of s. 846.165 (2) [now sub. (2m) (ae)] and the amount of any credit toward the judgment on the guaranty either at the same time or separately. Horizon Bank, National Association v. Marshalls Point Retreat LLC, 2018 WI 19, 380 Wis. 2d 60, 908 N.W.2d 797, 16-0832.

846.162 846.162 Disposition of surplus. If there shall be any surplus paid into court by the sheriff or referee, any party to the action or any person not a party who had a lien on the mortgaged premises at the time of sale, may file with the clerk of court into which the surplus was paid, a notice stating that the party or person is entitled to such surplus money or some part thereof, together with the nature and extent of the party’s or person’s claim. The court shall determine the rights of all persons in such surplus fund by reference or by testimony taken in open court, but no such hearing shall be had in court or before a referee except upon 8 days’ notice to all persons that have appeared in the action or filed notice of claim to such surplus money. If any such claimant shall not have appeared by attorney, notice of such hearing may be served by mail directed to the claimant at the place of the claimant’s residence as stated in the claimant’s notice of claim.

846.162 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.162; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.162; 1993 a. 486.

846.162 Annotation This section is procedural. It creates no substantive rights. First Wisconsin Trust Co. v. Rosen, 143 Wis. 2d 468, 422 N.W.2d 128 (Ct. App. 1988).

846.162 Annotation A mortgage covenant to pay taxes expires when the mortgage lien is extinguished upon confirmation of the sheriff’s sale. Taxes accruing after confirmation cannot be recovered from a surplus in sale proceeds. Harvest Savings Banking v. ROI Investments, 209 Wis. 2d 586, 563 N.W.2d 579 (Ct. App. 1997), 96-0998.

846.162 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.

846.165 846.165 Application for confirmation of sale and for deficiency judgment. No sale on a judgment of mortgage foreclosure shall be confirmed unless 5 days’ notice has been given to all parties that have appeared in the action. Such notice shall be given either personally or by registered mail directed to the last-known post-office address, mailed at least 5 days prior to the date when the motion for confirmation is to be heard, if any post-office address is known; if not known, mailing may be dispensed with but an affidavit shall be filed with the court stating that the address is not known, and the notice shall state, in addition to other matter required by law, the amount of the judgment, the amount realized upon the sale, the amount for which personal judgment will be sought against the several parties naming them, and the time and place of hearing.

846.165 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.165; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.165; 2017 a. 208.

846.165 Cross-reference Cross-reference: For tardy confirmation of sale, after 6 years, see s. 846.18.

846.165 Annotation The purchaser at a foreclosure sale has a right to notice of when the sale has been confirmed, when the mortgagor’s redemption period ends, and when the 10-day payment period under s. 846.17 [now s. 846.16 (2m) (b)] expires. GMAC Mortgage Corp. v. Gisvold, 215 Wis. 2d 459, 572 N.W.2d 466 (1998), 96-1663.

846.165 Annotation This section does not preclude a purchaser from obtaining a confirmation hearing when the mortgagee’s application for confirmation has been withdrawn. This affords the purchaser an opportunity to have the court decide whether it is entitled to transfer of the property under applicable law, and does not undermine the rights of the lienholders and mortgagor to object to certification as provided by law. JP Morgan Chase Bank, NA v. Green, 2008 WI App 78, 311 Wis. 2d 715, 753 N.W.2d 536, 07-1753.

846.165 Annotation The notice referred to throughout sub. (1) [now this section] is the notice of the first sentence that must be given to all parties that have appeared in the action. There is no requirement that when no party is entitled to personal notice under sub. (1) [now this section] there must be a general posting or publication of notice. There is no general hearing requirement or general motion-for-confirmation requirement that applies when no notice of hearing is required. Wells Fargo Bank, N.A. v. Biba, 2010 WI App 140, 329 Wis. 2d 787, 793 N.W.2d 95, 09-2273.

846.18 846.18 Tardy confirmation of sale. In all cases where a mortgage foreclosure sale has been made but not confirmed and the purchaser or the purchaser’s successor or assign has taken possession of the land by virtue of said sale, and occupied it for 6 years from and after said sale, the purchaser may apply for and the court may enter an order confirming said foreclosure sale with the same force and effect as if said confirmation was made as otherwise provided by law.

846.18 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.18; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.18; 1993 a. 486.

846.18 Annotation This section does not establish that a purchaser may apply for confirmation only after 6 years of occupancy. It provides a remedy for purchasers or their successors or assigns when, for whatever reason, the sale is not confirmed according to the procedures in s. 846.165, but their occupancy for a sufficient period entitles them to confirmation by this alternative route. JP Morgan Chase Bank, NA v. Green, 2008 WI App 78, 311 Wis. 2d 715, 753 N.W.2d 536, 07-1753.

846.25 846.25 Discharge after foreclosure. After a mortgage has been foreclosed by action and the judgment and costs have been paid and satisfaction of the mortgage entered upon the court record, the clerk of circuit court, on request, shall sign a certificate attesting to those facts, which certificate is entitled to record.

846.25 History History: Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); 1995 a. 224.

846.25 Cross-reference Cross-reference: For redemption from mortgage foreclosure, prior to sale, see s. 846.13.

846.30 846.30 Redemption period for land contracts. If a court finds that the purchaser under a land contract is obligated to make certain payments under that land contract, that the purchaser has failed to make the required payments and that the vendor is entitled to a judgment of strict foreclosure, the court shall set a redemption period of at least 7 working days from the date of the judgment hearing or, if there is no hearing, from the date of the entry of the judgment order. No judgment of strict foreclosure is final until the court enters an order after the expiration of the redemption period confirming that no redemption has occurred and making the judgment of strict foreclosure absolute.

846.30 History History: 1995 a. 250.

846.30 Annotation Equitable title remains with a land contract vendee until a circuit court enters an order under this section confirming the land contract vendee’s default following the expiration of the redemption period for strict foreclosure. Steiner v. Wisconsin American Mutual Insurance Company, 2005 WI 72, 281 Wis. 2d 395, 697 N.W.2d 452, 03-1959.

846.30 Annotation The minimum redemption period was enacted to prevent a court from not affording any right to redemption when the vendee, or someone else so entitled, wanted one. Neither this purpose nor the language of the statute supports requiring a period of redemption even if all parties with a right to redemption waive that right. The use of the word shall does not mean that the vendee or whoever has the right to redemption may not waive it. Republic Bank of Chicago v. Lichosyt, 2007 WI App 150, 303 Wis. 2d 474, 736 N.W.2d 153, 06-1578.

846.30 Annotation Case law does not accord the right to redemption in strict foreclosure actions to judgment lienholders. Republic Bank of Chicago v. Lichosyt, 2007 WI App 150, 303 Wis. 2d 474, 736 N.W.2d 153, 06-1578.

846.40 846.40 Regulation of foreclosure reconveyances.

846.40(1) (1) Definitions. In this section:

846.40(1)(a) (a) “Closing” means an in-person meeting to complete final documents incident to the sale of real property or the creation of a mortgage on real property that is conducted by a closing agent who is not employed by, an affiliate of, or employed by an affiliate of, any foreclosure purchaser involved in the closing, and who does not have a business or personal relationship with any foreclosure purchaser involved in the closing other than the provision of real estate settlement services.

846.40(1)(b) (b) “Foreclosed homeowner” means an owner of a residence in foreclosure.

846.40(1)(c) (c) “Foreclosure purchaser” means a person that has acted as the acquirer in a foreclosure reconveyance. “Foreclosure purchaser” also includes a person that has acted in joint venture or joint enterprise with one or more acquirers in a foreclosure reconveyance. “Foreclosure purchaser” does not include any of the following:

846.40(1)(c)1. 1. A natural person who shows that he or she is not in the business of foreclosure purchasing and who has a prior personal relationship with the foreclosed homeowner.

846.40(1)(c)2. 2. A federal or state chartered bank, savings bank, savings and loan association, or credit union.

846.40(1)(d) (d) “Foreclosure reconveyance” means a transaction involving all of the following:

846.40(1)(d)1. 1. The transfer of title to real property by a foreclosed homeowner during a foreclosure proceeding, either by a transfer of interest from the foreclosed homeowner or by the creation of a mortgage or other lien or encumbrance during the foreclosure process.

846.40(1)(d)2. 2. The subsequent conveyance, or promise of a subsequent conveyance, of an interest back to the foreclosed homeowner by the acquirer or a person acting in participation with the acquirer that allows the foreclosed homeowner to possess either the residence in foreclosure or other real property, which interest includes an interest in a land contract, purchase agreement, option to purchase, or lease.

846.40(1)(e) (e) “Primary housing expenses” means the sum of payments for regular principal, interest, rent, utilities, fire and casualty insurance, real estate taxes, and association dues.

846.40(1)(f) (f) “Resale” means a bona fide market sale of the property subject to the foreclosure reconveyance by the foreclosure purchaser to an unaffiliated 3rd party.

846.40(1)(g) (g) “Resale price” means the gross sale price of the property on resale.

846.40(1)(h) (h) “Residence in foreclosure” means residential real property located in this state that consists of one to 4 family dwelling units and with respect to which real property there is a delinquency or default on any loan payment or debt secured by or attached to the residential real property, including land contract payments. The owner of the residential real property may, but is not required to, occupy the residential real property as the owner’s principal place of residence.

846.40(2) (2) Contract requirement; form and language. A foreclosure purchaser that enters into any foreclosure reconveyance shall do so by a written contract. Every contract must be written in letters of not less than 12-point boldface type, both in English and in the same language principally used by the foreclosure purchaser and foreclosed homeowner to negotiate the sale of the residence in foreclosure if other than English, and must be fully completed, signed, and dated by the foreclosed homeowner and foreclosure purchaser before the execution of any instrument of conveyance of the residence in foreclosure.

846.40(3) (3) Contract terms.

846.40(3)(a) (a) Every contract required by sub. (2) must contain the entire agreement of the parties and must include all of the following terms:

846.40(3)(a)1. 1. The name, business address, and telephone number of the foreclosure purchaser.

846.40(3)(a)2. 2. The address of the residence in foreclosure.

846.40(3)(a)3. 3. The total consideration to be given by the foreclosure purchaser in connection with or incident to the sale.

846.40(3)(a)4. 4. A complete description of the terms of payment or other consideration, including any services of any nature that the foreclosure purchaser represents he or she will perform for the foreclosed homeowner before or after the sale.

846.40(3)(a)5. 5. The time at which possession is to be transferred to the foreclosure purchaser.

846.40(3)(a)6. 6. A complete description of the terms of any related agreement designed to allow the foreclosed homeowner to remain in possession of the home, such as a rental agreement, repurchase agreement, land contract, or lease with option to purchase.

846.40(3)(a)7. 7. The time for determining the fair market value of the property, as provided under sub. (8) (b) 2. b.

846.40(3)(a)8. 8. A notice of cancellation as provided in sub. (5) (b).