Chapter 846

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.

846.102 Annotation Foreclosures in Limbo: Zombie Properties. Payne & Decker. Wis. Law. Oct. 2015.

846.102 History History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); 1975 c. 41 s. 52; 1975 c. 199; Stats. 1975 s. 846.102; 1977 c. 304; 2011 a. 136; 2015 a. 376; 2017 a. 104, 208.

846.103 846.103 Foreclosures of commercial properties and multifamily residences.

846.103(1) (1) No foreclosure sale involving real property other than 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 until the expiration of 6 months from the date when the judgment is entered except a sale under sub. (2). 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.

846.103(2) (2) If the mortgagor of real property other than 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 has agreed in writing at the time of the execution of the mortgage to the provisions of this section, the plaintiff in a foreclosure action of a mortgage, which mortgage is recorded subsequent to May 12, 1978, may elect by express allegation in the complaint to waive judgment for any deficiency that 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. 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 and the sale of the mortgaged premises shall be made 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.

846.103 History History: 1977 c. 304; 2015 a. 376; 2017 a. 104, 208.

846.103 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.

846.103 Annotation A mortgagee who forecloses under the shortened redemption period under sub. (2) does not forfeit the right to obtain a judgment against a guarantor of payment even though it must waive its right to collect any deficiency from the debtor. Guarantors of payment are not members of the class of persons against whom a mortgagee must waive judgment when invoking sub. (2) because guarantors are not “personally liable for the debt secured by the mortgage.” This phrase is used to distinguish the liability of a borrower on a debt, which is a personal obligation, from the liability of a mortgagor, which is an obligation limited to the property the mortgagor has put up as security for the debt. The phrase does not contemplate guarantors whose liability arises not from the debt but from a separate contract. Bank Mutual v. S.J. Boyer Construction, Inc. 2010 WI 74, 326 Wis. 2d 521, 785 N.W.2d 462, 08-0912.

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).