AB111: Bill Text

AB111,179,4 (2) Damages for noncompliance. Subject to subs. (3), (4), and (6), a person is liable for damages in the amount of any loss caused by a failure to comply with this chapter. Loss caused by a failure to comply may include loss resulting from the debtor's inability to obtain, or increased costs of, alternative financing.

AB111,179,6 (3) Persons entitled to recover damages; statutory damages in consumer-goods transaction. Except as otherwise provided in s. 409.628:

AB111,179,9 (a) A person that, at the time of the failure, was a debtor, was an obligor, or held a security interest in or other lien on the collateral may recover damages under sub. (2) for its loss; and

AB111,179,14 (b) If the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with this subchapter may recover for that failure in any event an amount not less than the credit service charge plus 10% of the principal amount of the obligation or the time-price differential plus 10% of the cash price.

AB111,179,20 (4) Recovery when deficiency eliminated or reduced. A debtor whose deficiency is eliminated under s. 409.626 may recover damages for the loss of any surplus. However, a debtor or secondary obligor whose deficiency is eliminated or reduced under s. 409.626 may not otherwise recover under sub. (2) for noncompliance with the provisions of this subchapter relating to collection, enforcement, disposition, or acceptance.

AB111,179,24 (5) Statutory damages: noncompliance with specified provisions. In addition to any damages recoverable under sub. (2), the debtor, consumer obligor, or person named as a debtor in a filed record, as applicable, may recover $500 in each case from a person that:

AB111,179,25 (a) Fails to comply with s. 409.208;

AB111,180,1 (b) Fails to comply with s. 409.209;

AB111,180,2 (c) Files a record that the person is not entitled to file under s. 409.509 (1);

AB111,180,4 (d) Fails to cause the secured party of record to file or send a termination statement as required by s. 409.513 (1) or (3);

AB111,180,6 (e) Fails to comply with s. 409.616 (2) (a) and whose failure is part of a pattern, or consistent with a practice, of noncompliance; or

AB111,180,7 (f) Fails to comply with s. 409.616 (2) (b).

AB111,180,14 (6) Statutory damages: noncompliance with s. 409.210. A debtor or consumer obligor may recover damages under sub. (2) and, in addition, $500 in each case from a person that, without reasonable cause, fails to comply with a request under s. 409.210. A recipient of a request under s. 409.210 which never claimed an interest in the collateral or obligations that are the subject of a request under that section has a reasonable excuse for failure to comply with the request within the meaning of this subsection.

AB111,180,19 (7) Limitation of security interest: noncompliance with s. 409.210. If a secured party fails to comply with a request regarding a list of collateral or a statement of account under s. 409.210, the secured party may claim a security interest only as shown in the list or statement included in the request as against a person that is reasonably misled by the failure.

AB111,180,23 409.626 Action in which deficiency or surplus is in issue. (1) Applicable rules if amount of deficiency or surplus in issue. In an action arising from a transaction, other than a consumer transaction, in which the amount of a deficiency or surplus is in issue, the following rules apply:

AB111,181,3 (a) A secured party need not prove compliance with the provisions of this subchapter relating to collection, enforcement, disposition, or acceptance unless the debtor or a secondary obligor places the secured party's compliance in issue.

AB111,181,6 (b) If the secured party's compliance is placed in issue, the secured party has the burden of establishing that the collection, enforcement, disposition, or acceptance was conducted in accordance with this subchapter.

AB111,181,12 (c) Except as otherwise provided in s. 409.628, if a secured party fails to prove that the collection, enforcement, disposition, or acceptance was conducted in accordance with the provisions of this subchapter relating to collection, enforcement, disposition, or acceptance, the liability of a debtor or a secondary obligor for a deficiency is limited to an amount by which the sum of the secured obligation, expenses, and attorney fees exceeds the greater of:

AB111,181,13 1. The proceeds of the collection, enforcement, disposition, or acceptance; or

AB111,181,16 2. The amount of proceeds that would have been realized had the noncomplying secured party proceeded in accordance with the provisions of this subchapter relating to collection, enforcement, disposition, or acceptance.

AB111,181,19 (d) For purposes of par. (c) 2., the amount of proceeds that would have been realized is equal to the sum of the secured obligation, expenses, and attorney fees unless the secured party proves that the amount is less than that sum.

AB111,181,24 (e) If a deficiency or surplus is calculated under s. 409.615 (6), the debtor or obligor has the burden of establishing that the amount of proceeds of the disposition is significantly below the range of prices that a complying disposition to a person other than the secured party, a person related to the secured party, or a secondary obligor would have brought.

AB111,182,5 (2) Nonconsumer transactions; no inference. The limitation of the rules in sub. (1) to transactions other than consumer transactions is intended to leave to the court the determination of the proper rules in consumer transactions. The court may not infer from that limitation the nature of the proper rule in consumer transactions and may continue to apply established approaches.

AB111,182,13 409.627 Determination of whether conduct was commercially reasonable. (1) Greater amount obtainable under other circumstances; no preclusion of commercial reasonableness. The fact that a greater amount could have been obtained by a collection, enforcement, disposition, or acceptance at a different time or in a different method from that selected by the secured party is not of itself sufficient to preclude the secured party from establishing that the collection, enforcement, disposition, or acceptance was made in a commercially reasonable manner.

AB111,182,15 (2) Dispositions that are commercially reasonable. A disposition of collateral is made in a commercially reasonable manner if the disposition is made:

AB111,182,16 (a) In the usual manner on any recognized market;

AB111,182,18 (b) At the price current in any recognized market at the time of the disposition; or

AB111,182,20 (c) Otherwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.

AB111,182,22 (3) Approval by court or on behalf of creditors. A collection, enforcement, disposition, or acceptance is commercially reasonable if it has been approved:

AB111,182,23 (a) In a judicial proceeding;

AB111,182,24 (b) By a bona fide creditors' committee;

AB111,182,25 (c) By a representative of creditors; or

AB111,183,1 (d) By an assignee for the benefit of creditors.

AB111,183,5 (4) Approval under sub. (3) not necessary; absence of approval has no effect. Approval under sub. (3) need not be obtained, and lack of approval does not mean that the collection, enforcement, disposition, or acceptance is not commercially reasonable.

AB111,183,10 409.628 Nonliability and limitation on liability of secured party; liability of secondary obligor. (1) Limitation of liability of secured party for noncompliance with chapter. Unless a secured party knows that a person is a debtor or obligor, knows the identity of the person, and knows how to communicate with the person:

AB111,183,13 (a) The secured party is not liable to the person, or to a secured party or lienholder that has filed a financing statement against the person, for failure to comply with this chapter; and

AB111,183,15 (b) The secured party's failure to comply with this chapter does not affect the liability of the person for a deficiency.

AB111,183,17 (2) Limitation of liability based on status as secured party. A secured party is not liable because of its status as secured party:

AB111,183,18 (a) To a person that is a debtor or obligor, unless the secured party knows:

AB111,183,19 1. That the person is a debtor or obligor;

AB111,183,20 2. The identity of the person; and

AB111,183,21 3. How to communicate with the person; or

AB111,183,23 (b) To a secured party or lienholder that has filed a financing statement against a person, unless the secured party knows:

AB111,183,24 1. That the person is a debtor; and

AB111,183,25 2. The identity of the person.

AB111,184,7 (3) Limitation of liability if reasonable belief that transaction not a consumer-goods transaction or consumer transaction. A secured party is not liable to any person, and a person's liability for a deficiency is not affected, because of any act or omission arising out of the secured party's reasonable belief that a transaction is not a consumer-goods transaction or a consumer transaction or that goods are not consumer goods, if the secured party's belief is based on its reasonable reliance on:

AB111,184,9 (a) A debtor's representation concerning the purpose for which collateral was to be used, acquired, or held; or

AB111,184,11 (b) An obligor's representation concerning the purpose for which a secured obligation was incurred.

AB111,184,13 (4) Limitation of liability for statutory damages. A secured party is not liable to any person under s. 409.625 (3) (b) for its failure to comply with s. 409.616.

AB111,184,16 (5) Limitation of multiple liability for statutory damages. A secured party is not liable under s. 409.625 (3) (b) more than once with respect to any one secured obligation.

AB111,184,18 subchapter VII TRANSITION

AB111,184,23 409.702 Savings clause. (1) Preeffective-date transactions or liens. Except as otherwise provided in this subchapter, 1999 Wisconsin Act .... (this act) applies to a transaction or lien within its scope, even if the transaction or lien was entered into or created before the effective date of this subsection .... [revisor inserts date].

AB111,184,25 (2) Continuing validity. Except as otherwise provided in sub. (3) and ss. 409.703 to 409.709:

AB111,185,7 (a) Transactions and liens that were not governed by ch. 409, 1999 stats., were validly entered into or created before effective date of this paragraph .... [revisor inserts date], and would be subject to 1999 Wisconsin Act .... (this act) if they had been entered into or created on or after the effective date of this paragraph .... [revisor inserts date], and the rights, duties, and interests flowing from those transactions and liens remain valid on and after the effective date of this paragraph .... [revisor inserts date]; and

AB111,185,10 (b) The transactions and liens may be terminated, completed, consummated, and enforced as required or permitted by 1999 Wisconsin Act .... (this act) or by the law that otherwise would apply if this paragraph had not taken effect.

AB111,185,13 (3) Preeffective-date proceedings. 1999 Wisconsin Act .... (this act) does not affect an action, case, or proceeding commenced before the effective date of this subsection .... [revisor inserts date].

AB111,185,21 409.703 Security interest perfected before effective date. (1) Continuing priority over lien creditor: perfection requirements satisfied. A security interest that is enforceable immediately before the effective date of this subsection .... [revisor inserts date], and would have priority over the rights of a person that becomes a lien creditor at that time is a perfected security interest under 1999 Wisconsin Act .... (this act) if, on the effective date of this subsection .... [revisor inserts date], the applicable requirements for enforceability and perfection under 1999 Wisconsin Act .... (this act) are satisfied without further action.

AB111,186,3 (2) Continuing priority over lien creditor: perfection requirements not satisfied. Except as otherwise provided in s. 409.705, if, immediately before the effective date of this subsection .... [revisor inserts date], a security interest is enforceable and would have priority over the rights of a person that becomes a lien creditor at that time, but the applicable requirements for enforceability or perfection under 1999 Wisconsin Act .... (this act) are not satisfied as of the effective date of this subsection .... [revisor inserts date], the security interest:

AB111,186,5 (a) Is a perfected security interest until one year after the effective date of this paragraph .... [revisor inserts date];

AB111,186,9 (b) Remains enforceable on and after one year after the effective date of this paragraph .... [revisor inserts date], only if the security interest becomes enforceable under s. 409.203 before one year after the effective date of this paragraph .... [revisor inserts date]; and

AB111,186,13 (c) Remains perfected on and after one year after the effective date of this paragraph .... [revisor inserts date], only if the applicable requirements for perfection under 1999 Wisconsin Act .... (this act) are satisfied before one year after the effective date of this paragraph .... [revisor inserts date].

AB111,186,17 409.704 Security interest unperfected before effective date. A security interest that is enforceable immediately before the effective date of this section .... [revisor inserts date], but which would be subordinate to the rights of a person that becomes a lien creditor at that time:

AB111,186,19 (1) Remains an enforceable security interest for one year after the effective date of this subsection .... [revisor inserts date];

AB111,186,23 (2) Remains enforceable on and after one year after the effective date of this subsection .... [revisor inserts date], if the security interest becomes enforceable under s. 409.203 on the effective date of this subsection .... [revisor inserts date], or within one year thereafter; and

AB111,186,24 (3) Becomes perfected:

AB111,187,3 1. Without further action, on the effective date of this subdivision .... [revisor inserts date], if the applicable requirements for perfection under 1999 Wisconsin Act .... (this act) are satisfied before or at that time; or

AB111,187,5 2. When the applicable requirements for perfection are satisfied if the requirements are satisfied after that time.

AB111,187,18 409.705 Effectiveness of action taken before effective date. (1) Preeffective-date action; one-year perfection period unless reperfected. If action, other than the filing of a financing statement, is taken before the effective date of this subsection .... [revisor inserts date], and the action would have resulted in priority of a security interest over the rights of a person that becomes a lien creditor had the security interest become enforceable before the effective date of this subsection .... [revisor inserts date], the action is effective to perfect a security interest that attaches under 1999 Wisconsin Act .... (this act) before the effective date of this subsection .... [revisor inserts date]. An attached security interest becomes unperfected one year after the effective date of this subsection .... [revisor inserts date], unless the security interest becomes a perfected security interest under 1999 Wisconsin Act .... (this act) before one year after the effective date of this subsection .... [revisor inserts date].

AB111,187,22 (2) Preeffective-date filing. The filing of a financing statement before the effective date of this subsection .... [revisor inserts date], is effective to perfect a security interest to the extent that the filing would satisfy the applicable requirements for perfection under 1999 Wisconsin Act .... (this act).

AB111,188,4 (3) Preeffective-date filing in jurisdiction formerly governing perfection. 1999 Wisconsin Act .... (this act) does not render ineffective an effective financing statement that, before the effective date of this subsection .... [revisor inserts date], is filed and satisfies the applicable requirements for perfection under the law of the jurisdiction governing perfection as provided in s. 409.103, 1999 stats. However, except as otherwise provided in subs. (4) and (5) and s. 409.706, the financing statement ceases to be effective at the earlier of:

AB111,188,6 (a) The time the financing statement would have ceased to be effective under the law of the jurisdiction in which it is filed; or

AB111,188,7 (b) June 30, 2006.

AB111,188,16 (4) Continuation statement. The filing of a continuation statement on or after the effective date of this subsection .... [revisor inserts date], does not continue the effectiveness of the financing statement filed before the effective date of this subsection .... [revisor inserts date]. However, upon the timely filing of a continuation statement on or after the effective date of this subsection .... [revisor inserts date], and in accordance with the law of the jurisdiction governing perfection as provided in subch. III, the effectiveness of a financing statement filed in the same office in that jurisdiction before the effective date of this subsection .... [revisor inserts date], continues for the period provided by the law of that jurisdiction.

AB111,188,24 (5) Application of sub. (3) (b) to transmitting utility financing statement. Subsection (3) (b) applies to a financing statement that, before the effective date of this subsection .... [revisor inserts date], is filed against a transmitting utility and satisfies the applicable requirements for perfection under the law of the jurisdiction governing perfection as provided in s. 409.103, 1999 stats., only to the extent that subch. III provides that the law of a jurisdiction other than the jurisdiction in which the financing statement is filed governs perfection of a security interest in collateral covered by the financing statement.

AB111,189,5 (6) Application of subch. V. A financing statement that includes a financing statement filed before the effective date of this subsection .... [revisor inserts date], and a continuation statement filed on or after the effective date of this subsection .... [revisor inserts date], is effective only to the extent that it satisfies the requirements of subch. V for an initial financing statement.

AB111,189,10 409.706 When initial financing statement suffices to continue effectiveness of financing statement. (1) Initial financing statement in lieu of continuation statement. The filing of an initial financing statement in the office specified in s. 409.501 continues the effectiveness of a financing statement filed before the effective date of this subsection .... [revisor inserts date], if:

AB111,189,12 (a) The filing of an initial financing statement in that office would be effective to perfect a security interest under 1999 Wisconsin Act .... (this act);

AB111,189,14 (b) The preeffective-date financing statement was filed in an office in another state or another office in this state; and

AB111,189,15 (c) The initial financing statement satisfies sub. (3).

AB111,189,18 (2) Period of continued effectiveness. The filing of an initial financing statement under sub. (1) continues the effectiveness of the preeffective-date financing statement:

AB111,189,21 (a) If the initial financing statement is filed before the effective date of this paragraph .... [revisor inserts date], for the period provided in s. 409.403, 1999 stats., with respect to a financing statement; and

AB111,189,24 (b) If the initial financing statement is filed on or after the effective date of this paragraph .... [revisor inserts date], for the period provided in s. 409.515 with respect to an initial financing statement.

AB111,190,2 (3) Requirements for initial financing statement under sub. (1). To be effective for purposes of sub. (1), an initial financing statement must:

AB111,190,3 (a) Satisfy the requirements of subch. V for an initial financing statement;

AB111,190,7 (b) Identify the preeffective-date financing statement by indicating the office in which the financing statement was filed and providing the dates of filing and file numbers, if any, of the financing statement and of the most recent continuation statement filed with respect to the financing statement; and

AB111,190,8 (c) Indicate that the preeffective-date financing statement remains effective.

AB111,190,12 409.707 Amendment of preeffective-date financing statement. (1) Preeffective-date financing statement. In this section, "preeffective-date financing statement" means a financing statement filed before the effective date of this subsection .... [revisor inserts date].

AB111,190,19 (2) Applicable law. On or after the effective date of this subsection .... [revisor inserts date], a person may add or delete collateral covered by, continue or terminate the effectiveness of, or otherwise amend the information provided in, a preeffective-date financing statement only in accordance with the law of the jurisdiction governing perfection as provided in subch. III. However, the effectiveness of a preeffective-date financing statement also may be terminated in accordance with the law of the jurisdiction in which the financing statement is filed.

AB111,190,23 (3) Method of amending: general rule. Except as otherwise provided in sub. (4), if the law of this state governs perfection of a security interest, the information in a preeffective-date financing statement may be amended on or after the effective date of this subsection .... [revisor inserts date], only if: