1995 Wisconsin Act 329

424.201 (1) Insurance issued as an isolated transaction on the part of the insurer not related to an agreement or plan for insuring customers of the creditor; or

(2) Insurance indemnifying the creditor against loss due to the customer's default.; or

329,74 Section 74 . 424.201 (3) of the statutes is created to read:

424.201 (3) With respect to a motor vehicle consumer lease, a lessor's waiver of its contractual right to hold the lessee liable for any or all of the gap amount, as defined in s. 429.104 (12), if the waiver is granted without a separate charge.

329,75 Section 75 . 424.301 (1) (intro.) of the statutes is amended to read:

424.301 (1) (intro.) A creditor may not contract for a separate charge or receive a separate charge for insurance against loss of or damage to property in which the creditor holds a security interest or to property leased under a motor vehicle consumer lease unless all of the following conditions are met:

329,76 Section 76 . 425.106 (1) (intro.) of the statutes is amended to read:

425.106 (1) (intro.) Except to the extent that the merchant has a valid security interest which is permitted by chs. 421 to 427 and 429 or has a lien under ch. 779 in such property, or where the transaction is for medical or legal services and there has been no finance charge actually imposed, the following property of the customer shall be exempt from levy, execution, sale, and other similar process in satisfaction of a judgment for an obligation arising from a consumer credit transaction:

329,77 Section 77 . 425.107 (4) of the statutes is amended to read:

425.107 (4) Any charge or practice expressly permitted by chs. 421 to 427 and 429 is not in itself unconscionable but even though a practice or charge is authorized by chs. 421 to 427 and 429, the totality of a creditor's conduct may show that such practice or charge is part of an unconscionable course of conduct.

329,78 Section 78 . 426.104 (1) of the statutes is amended to read:

426.104 (1) In addition to other powers granted by chs. 421 to 427 and 429, the administrator within the limitations provided by law shall:

(a) Receive and act on complaints, take action designed to obtain voluntary compliance with chs. 421 to 427 and 429, commence administrative proceedings on his or her own initiative and commence civil actions solely through the department of justice;

(b) Counsel persons and groups on their rights and duties under chs. 421 to 427 and 429;

(c) Make studies appropriate to effectuate the purposes and policies of chs. 421 to 427 and 429 and make the results available to the public;

(d) Hold such public or private hearings as the administrator deems necessary or proper to effectuate the purposes and policies of chs. 421 to 427 and 429;

(e) Adopt, amend and repeal rules to carry out the purposes and policies of chs. 421 to 427 and 429, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.

329,79 Section 79 . 426.104 (2) (intro.) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

426.104 (2) (intro.) The administrator shall report annually on practices in consumer transactions, on the use of consumer credit in the state, on problems attending the collection of debts, on the problems of persons of limited means in consumer transactions, and on the operation of chs. 421 to 427 and 429. For the purpose of making the report, the administrator may conduct research and make appropriate studies. The report shall be included in the report of the division of banking under s. 220.14 and shall include:

329,80 Section 80 . 426.104 (2) (b) to (e) of the statutes are amended to read:

426.104 (2) (b) A statement of policies followed in deciding whether to investigate or examine the offices of persons subject to chs. 421 to 427 and 429;

(c) A statement of policies followed in deciding whether to bring any action authorized under chs. 421 to 427 and 429;

(d) Such recommendations for modifications or additions to chs. 421 to 427 and 429 as in the experience and judgment of the administrator are necessary; and

(e) Such other statements as are necessary or proper to achieve the purposes or policies of this section or to effectuate the purposes or policies of chs. 421 to 427 and 429.

329,81 Section 81 . 426.104 (4) (a) of the statutes is amended to read:

426.104 (4) (a) No provision of chs. 421 to 427 and 429 or of any statute to which chs. 421 to 427 and 429 refer which imposes any penalty shall apply to any act done or omitted to be done in conformity with any rule or order of the administrator or any written opinion, interpretation or statement of the administrator, notwithstanding that such rule, order, opinion, interpretation or statement may, after such act or omission, be amended or rescinded or be determined by judicial or other authority to be invalid for any reason.

329,82 Section 82 . 426.104 (4) (ab) 1. of the statutes, as created by 1995 Wisconsin Act 27, is amended to read:

426.104 (4) (ab) 1. Upon the request of any person, the administrator shall review any act, practice, procedure or form that has been submitted to the administrator in writing to determine whether the act, practice, procedure or form is consistent with chs. 421 to 427 and 429.

329,83 Section 83 . 426.104 (4) (b) of the statutes is amended to read:

426.104 (4) (b) Any act, practice or procedure which has been submitted to the administrator in writing and either approved in writing by the administrator or not disapproved by the administrator within 60 days after its submission to the administrator shall not be deemed to be a violation of chs. 421 to 427 and 429 or any other statute to which chs. 421 to 427 and 429 refer notwithstanding that the approval of the administrator or nondisapproval by the administrator may be subsequently amended or rescinded or be determined by judicial or other authority to be invalid for any reason.

329,84 Section 84 . 426.105 of the statutes is amended to read:

426.105 Administrative powers with respect to supervised financial organizations. (1) All powers and duties of the administrator under chs. 421 to 427 and 429 shall be exercised by the administrator with respect to a supervised financial organization.

(2) If the administrator receives a complaint or other information concerning noncompliance with chs. 421 to 427 and 429 by a supervised financial organization, the administrator shall inform the official or agency having supervisory authority over the organization concerned. The administrator may request information about supervised financial organizations from the officials or agencies supervising them.

(3) The administrator and any official or agency of this state having supervisory authority over a supervised financial organization shall consult and assist one another in maintaining compliance with chs. 421 to 427 and 429. They may jointly pursue investigations, prosecute suits and take other official action, as they deem appropriate, if either of them otherwise is empowered to take the action.

329,85 Section 85 . 426.107 of the statutes is amended to read:

426.107 Application of chapter 227. Except as otherwise provided, ch. 227 applies to and governs all administrative action taken by the administrator pursuant to chs. 421 to 427 and 429. Notwithstanding s. 227.52, the decisions of the administrator are subject to judicial review as provided in ch. 227.

329,86 Section 86 . 426.109 of the statutes is amended to read:

426.109 Temporary relief; injunctions. (1) The administrator or any customer may bring a civil action to restrain by temporary or permanent injunction a person from violating chs. 421 to 427 and 429 or the rules promulgated pursuant thereto, or to so restrain a merchant or a person acting on behalf of a merchant from engaging in false, misleading, deceptive, or unconscionable conduct in consumer credit transactions. It shall not be a defense to an action brought under this section that there exists an adequate remedy at law.

(2) The administrator or customer may seek a temporary restraining order without written or oral notice to the adverse party or his or her attorney. If the court finds that there is reasonable cause to believe that the respondent is engaged in the conduct sought to be restrained and that such conduct violates chs. 421 to 427 and 429 or rules promulgated under chs. 421 to 427 and 429, it may grant a temporary restraining order or any temporary relief it deems appropriate. A temporary restraining order granted without notice shall expire by its terms within a stated time after entry, not to exceed 30 days, as the court fixes, unless within this time it is extended by the court, or unless the party against whom the order is directed consents that it may be extended for a longer period. When a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for a hearing at the earliest possible time. Upon notice to the party who obtained the temporary restraining order without notice, the adverse party may appear and move its dissolution or modification, and in this event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

329,87 Section 87 . 426.110 (1) of the statutes is amended to read:

426.110 (1) Either the administrator, or any customer affected by a violation of chs. 421 to 427 and 429 or of the rules promulgated pursuant thereto or by a violation of the federal consumer credit protection act, or by conduct of a kind described in sub. (2), may bring a civil action on behalf of himself or herself and all persons similarly situated, for actual damages by reason of such conduct or violation, together with penalties as provided in sub. (14), reasonable attorney fees and other relief to which such persons are entitled under chs. 421 to 427 and 429. The customer filing the action must give prompt notice thereof to the administrator, who shall be permitted, upon application within 30 days, to join as a party plaintiff. For purposes of apportionment of cost, the administrator need not be a party to the action.

329,88 Section 88 . 426.110 (3) of the statutes is amended to read:

426.110 (3) Notwithstanding this chapter, no class action may be maintained for conduct proscribed in sub. (2) or for a violation of s. 423.301, 424.501, 425.107, 426.108 or 427.104 (1) (h) unless the conduct has been found to constitute a violation of chs. 421 to 427 and 429 at least 30 days prior to the occurrence of the conduct involved in the class action by an appellate court of this state or by a rule promulgated by the administrator as provided in ss. 426.104 (1) (e) and 426.108 specifying with particularity the act or practice in question.

329,89 Section 89 . 426.110 (14) of the statutes is amended to read:

426.110 (14) A merchant shall not be liable in a class action for specific penalties (ss. under s. 425.302 (1) (a), 425.303 (1), 425.304 (1), 425.305 (1)) or 429.301 (1) for which it would be liable in individual actions by reason of violations of chs. 421 to 427 and 429 or of conduct prescribed in sub. (2) unless it is shown by a preponderance of the evidence that the violation was a wilful and knowing violation of chs. 421 to 427 and 429. No recovery in an action under this subsection may exceed $100,000.

329,90 Section 90 . 426.111 of the statutes is amended to read:

426.111 Debtors' remedies not affected. The grant of powers to the administrator in this chapter does not affect remedies available to customers under chs. 421 to 427 and 429 or under other principles of law or equity.

329,91 Section 91 . 426.201 (2) (g) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

426.201 (2) (g) Such other similar information as the administrator may require to effectuate the purposes and policies of chs. 421 to 427 and 429.

329,92 Section 92 . 426.202 (1m) (c) of the statutes, as created by 1995 Wisconsin Act 27, is amended to read:

426.202 (1m) (c) Amount of registration fee. The amount of the registration fee shall be determined in accordance with rates set by the administrator, subject to the maximum and minimum fees under pars. (d) and (e). In setting these rates, the administrator shall consider the costs of administering chs. 421 to 427 and 429, including the costs of enforcement, education and seeking voluntary compliance with chs. 421 to 427 and 429. Subject to pars. (d) and (e), the registration fee for a person shall be based on the person's average monthly outstanding balance during the reporting period.

329,93 Section 93 . 426.301 of the statutes is amended to read:

426.301 Violations and enforcement. (1) The administrator may recover in a civil action from a person who violates chs. 421 to 427 and 429 or any rule made pursuant to any authority granted in chs. 421 to 427 and 429, a civil penalty of not less than $100 and not more than $1,000 for each violation.

(2) In addition to the amount to which the administrator shall be entitled under sub. (1), the administrator may recover in a civil action from a person who knowingly or wilfully violates chs. 421 to 427 and 429 or any rule made pursuant to any authority granted in chs. 421 to 427 and 429, a civil penalty of not less than $1,000 and not more than $10,000 for each violation.

329,94 Section 94 . Chapter 429 of the statutes is created to read:

Chapter 429
motor vehicle
consumer leases

Subchapter i
general provisions

429.101 Title. This chapter may be cited as the Wisconsin motor vehicle consumer lease act.

429.102 Applicable law. (1) To the extent that s. 218.01 and chs. 411 and 421 to 427 are inconsistent with this chapter, the provisions of this chapter shall apply.

(2) Unless superseded by the particular provisions of this chapter, parties to a motor vehicle consumer lease have all of the obligations, duties, rights and remedies provided in s. 218.01 and chs. 411 and 421 to 427 that apply to the transaction.

429.103 Construction against implied repeal. This chapter being a general act intended as a unified coverage of its subject matter, no part of this chapter shall be construed to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.

429.104 Definitions. In this chapter:

(1) “Adjusted capitalized cost" means the amount computed by subtracting from capitalized cost any capitalized cost reduction, for the purpose of determining the base lease payment.

(2) “Average periodic depreciation" means the adjusted capitalized cost, after first subtracting the residual value, divided by the number of payment periods under the consumer lease or, for a single-payment lease, the number of months in the term of the lease.

(3) “Average periodic lease charge" means the lease charge for the scheduled term of the consumer lease divided by the number of payment periods under the consumer lease or, for a single-payment lease, the number of months in the term of the lease.

(3m) “Balance subject to a lease charge" means:

(a) In the case of a lease other than a single-payment lease, the amount calculated by subtracting from the adjusted capitalized cost the sum of the first base lease payment and all depreciation amounts accrued during any preceding payment periods.

(b) In the case of a single-payment lease, the amount calculated by subtracting the total lease charge from the sum of the residual value and all lease charges accrued during any preceding computational periods.

(4) “Base lease payment" means an amount determined as follows:

(a) With respect to a single-payment lease, the product of the number of months in the scheduled term of the lease multiplied by the sum of the average periodic lease charge and the average periodic depreciation.

(b) With respect to a lease other than a single-payment lease, the sum of the average periodic lease charge and the average periodic depreciation.

(5) “Capitalized cost" means the sum of all amounts capitalized in the consumer lease that, after subtracting the capitalized cost reduction, amortizes to the residual value by the depreciation portion of the periodic lease payments over the scheduled term of the lease or, for a single-payment lease, the single payment. These amounts may include taxes; fees for registration, license, acquisition, administration and assignment; other fees; charges for insurance, service contracts and extended warranties; and charges for a waiver of the contractual obligation to pay the gap amount, for accessories and their installation, for other services and benefits incidental to the consumer lease, and for delivering, servicing, repairing or improving the vehicle. With respect to a vehicle or other property traded in connection with a consumer lease, the term may include the outstanding unpaid balance of the amount financed under a consumer loan, as defined in s. 421.301 (12), or a retail instalment contract, as defined in s. 218.01 (1) (t), or the unpaid balance of any early termination costs under a lease or other obligation of the lessee. The term does not include any lease charge.

(6) “Capitalized cost reduction" means the sum, at the time of inception of the consumer lease, of any payments made by cash, check, rebates or the like that constitute a downpayment made by the lessee and the net amount credited by the lessor for any trade-in. The term does not include any base lease payments due at the inception of the consumer lease.

(7) “Conspicuous" means that the term or clause is so written as to be distinguished from other terms or clauses by type size or in some other manner. The term includes any writing in at least 10-point boldface type.

(9) “Consumer lease" or “lease" means a lease entered into in this state that transfers the right of possession and use by a natural person of a motor vehicle primarily for a personal, family, household or agricultural purpose, for a period of time exceeding 4 months, if the total lease obligation, excluding any option to purchase or otherwise become owner of the motor vehicle at the expiration of the consumer lease, does not exceed $25,000. The term does not include a credit sale, as defined under 12 CFR 226.2 (a) (16).

(10) “Early termination" means termination of a consumer lease before the termination date set forth in the consumer lease.

(11) “Federal consumer leasing act" means the federal consumer leasing act, as amended, 15 USC 1667-1667e, and regulations issued under that act.

(12) “Gap amount" means the difference between the amount to be paid by the lessee under the consumer lease in the event of total loss or destruction of the leased vehicle prior to expiration of the lease term by theft, physical damage, or other occurrence specified in the lease, and the actual cash value or portion thereof received by the lessor from insurance proceeds or from any other person on account of the total loss or destruction of the motor vehicle. The term does not include any deductible amount under any applicable insurance policy maintained by the lessee, any past-due payments owed by the lessee at the time of receipt by the lessor of the actual cash value or portion thereof from insurance proceeds or from any other person, or any other amount due under the lease resulting from default by the lessee.

(13) “Gap protection" means any of the following:

(a) A provision in a consumer lease under which the lessor agrees, for a charge, to waive the gap amount.

(b) Insurance coverage that provides that another person is liable for the gap amount.

(14) “Group credit insurance" means group credit life insurance, group credit accident insurance, group credit accident and health insurance, group disability insurance or group credit unemployment insurance.

(15) “Holder" means, with respect to a consumer lease, the lessor and, upon assignment of the lease, the assignee for the period of assignment. The term does not include a pledgee of a consumer lease or the owner or beneficiary of an interest in a trust that owns consumer leases.

(16) “Lease charge" means the sum of all charges payable by the lessee for the privilege of making the scheduled lease payments under a consumer lease. The term does not include capitalized cost.

(17) “Lessee" means a natural person who leases a motor vehicle from a lessor under a consumer lease.

(18) “Lessor" means a person regularly engaged in the business of leasing or selling vehicles who leases a motor vehicle to a lessee under a consumer lease.

(19) “Motor vehicle" has the meaning given in s. 218.01 (1) (m).

(20) “Periodic" means weekly, monthly, quarterly or any other period of time specified in a consumer lease.

(21) “Prospective lessee" means a natural person who enters into a prelease agreement under s. 218.01 (6x) with a prospective lessor, or who otherwise intends to become a lessee.