AB898-ASA2,22,1610
3. Attempted at least once on each of 2 consecutive days occurring after the
11most recent rental payment due date to engage in a telephone conversation with the
12lessee. Each attempt shall be made to the last known telephone number at the
13lessee's address. If the rental-purchase company attempts to engage in such a
14telephone conversation and discovers that the telephone number is disconnected, the
15rental-purchase company need only have made the initial attempt to engage in a
16telephone conversation with the lessee.
AB898-ASA2,22,2217
(b) 1. Except as provided in subd. 2., no rental-purchase company may take or
18attempt to take possession of rental property under a rental-purchase agreement by
19any means other than the legal process specified in this section or by return or
20voluntary surrender of the rental property by the lessee until at least 48 hours have
21lapsed after the rental-purchase company has made a reasonable effort to contact
22the lessee and request the return or voluntary surrender of the rental property.
AB898-ASA2,22,2523
2. If the rental-purchase company has attempted to engage in a telephone
24conversation with the lessee and the telephone number at the lessee's address has
25been disconnected, the 48-hour requirement under subd. 1. does not apply.
AB898-ASA2,23,2
1(c) The rental-purchase company shall maintain all necessary records to verify
2compliance with this subsection.
AB898-ASA2,23,6
4423.102 Scope. This chapter applies to all consumer transactions, except that
5subch. II does not apply to cemetery preneed sales under s. 440.92
, and subch. III
6applies to rental-purchase agreements.
AB898-ASA2,23,17
8423.301 False, misleading or deceptive advertising. No merchant
or
9rental-purchase company shall advertise, print, display, publish, distribute or
10broadcast or cause to be advertised, printed, displayed, published, distributed or
11broadcast, in any manner any statement or representation with regard to the
12extension of consumer credit including the rates, terms or conditions for the
13extension of such credit, which is false, misleading, or deceptive, or which omits to
14state material information with respect to the extension of credit that is necessary
15to make the statements therein not false, misleading or deceptive. With respect to
16matters specifically governed by the federal consumer credit protection act,
17compliance with such act satisfies the requirements of this section.
AB898-ASA2,23,23
19423.302 Remedies and penalty. In addition to any other remedy provided
20by law, a customer who has been induced to consummate a consumer credit
21transaction
or a lessee who has been induced to consummate a rental-purchase
22agreement as a result of advertising in violation of s. 423.301 shall be entitled to a
23recovery from the merchant in accordance with s. 425.305.
AB898-ASA2,24,4
1425.305 Transactions which are void. (1) In a transaction to which this
2section applies, the customer
or lessee to a rental-purchase agreement shall be
3entitled to retain the goods, services or money received pursuant to the transaction
4without obligation to pay any amount.
AB898-ASA2,24,7
5(2) In addition, the customer
or lessee to a rental-purchase agreement shall
6be entitled to recover any sums paid to the merchant
or rental-purchase company 7pursuant to the transaction.
AB898-ASA2, s. 27
8Section
27. Subchapter V of chapter 425 of the statutes [precedes 425.501] is
9created to read:
AB898-ASA2,24,1111
consumer transactionS —
AB898-ASA2,24,1212
remedies and penalties
AB898-ASA2,24,1414
Penalties, civil actions,
AB898-ASA2,24,1515
limitations, and venue relating
AB898-ASA2,24,1616
to rental-purchase agreements
AB898-ASA2,24,17
17425.501 Scope. This subchapter applies only to rental-purchase agreements.
AB898-ASA2,24,23
18425.502 Civil actions and defenses.
(1) Liability generally. Except as
19provided under subs. (2) to (8), a rental-purchase company that violates any
20provision of chs. 421 to 427 relating to rental-purchase agreements is liable to a
21lessee that is damaged as a result of that violation for the costs of the action and,
22notwithstanding s. 814.04 (1), for reasonable attorney fees as determined by the
23court, plus an amount equal to the sum of the following:
AB898-ASA2,24,2524
(a) The actual damages, including any incidental and consequential damages,
25sustained by the lessee as a result of the violation.
AB898-ASA2,25,4
1(b) An amount equal to 25 percent of the total amount of payments necessary
2to acquire ownership of the rental property under the lessee's rental-purchase
3agreement, except that liability under this paragraph may not be less than $100 nor
4more than $1,000.
AB898-ASA2,25,10
5(2) Temporary relief; injunctions. The administrator of the division of
6banking in the department of financial institutions may bring a civil action to
7restrain, by temporary or permanent injunction, a rental-purchase company from
8violating any provision of chs. 421 to 427 relating to rental-purchase agreements,
9or from engaging in false, misleading, deceptive, or unconscionable conduct, in
10rental-purchase transactions.
AB898-ASA2,25,15
11(3) Liability; certain violations. Except as provided in subs. (4) and (5), if a
12rental-purchase agreement violates s. 422.604, the lessee may retain the rental
13property under the rental-purchase agreement without obligation to pay any
14amount and may recover any amounts paid to the rental-purchase company under
15the rental-purchase agreement.
AB898-ASA2,26,3
16(4) Class action. (a) In the case of a class action, a rental-purchase company
17that violates any provision of chs. 421 to 427 relating to rental-purchase agreements
18is liable to the members of the class in an amount equal to the actual damages
19incurred by the class. The total statutory damages for all lessees whose recovery is
20computed under sub. (1) (b) relating to statutory damages may not exceed $500,000
21plus the costs of the action and, notwithstanding s. 814.04 (1), reasonable attorneys'
22fees as determined by the court. In determining the amount to award under sub. (1)
23(b), the court shall consider, among other relevant factors, the amount of actual
24damages sustained by the members of the class, the frequency and persistence of the
25violations by the rental-purchase company, the resources of the rental-purchase
1company, the number of persons damaged by the violation, the presence or absence
2of good faith on the part of the rental-purchase company, and the extent to which the
3violation was intentional.
AB898-ASA2,26,94
(b) Notwithstanding par. (a), no class action may be maintained for conduct
5proscribed in s. 422.607, 423.301, or 427.104 (1) (h) unless the conduct has been found
6to violate s. 422.607, 423.301, or 427.104 (1) (h) at least 30 days prior to the
7occurrence of the conduct involved in the class action by an appellate court of this
8state or by a rule promulgated by the division of banking in the department of
9financial institutions, specifying with particularity the act or practice in question.
AB898-ASA2,26,1110
(c) At least 30 days before commencing a class action for damages, a party must
11do all of the following:
AB898-ASA2,26,1312
1. Notify the rental-purchase company against whom an alleged cause of
13action is asserted of the alleged claim or violation.
AB898-ASA2,26,1514
2. Demand that the rental-purchase company correct, or otherwise remedy, the
15basis for the alleged claim.
AB898-ASA2,26,2016
(d) The notice required in par. (c) shall be in writing, and shall be sent by
17certified or registered mail, return receipt requested, to the rental-purchase
18company at the place where the transaction occurred, the company's principal place
19of business within the state, or, if neither will effect actual notice, the department
20of financial institutions.
AB898-ASA2,26,2421
(e) Except as provided in par. (g), no action for damages may be maintained
22under this subsection if an appropriate remedy, which shall include actual damages
23and may include penalties, is given, or agreed to be given within a reasonable time,
24to such party within 30 days after receipt of such notice.
AB898-ASA2,27,3
1(f) Except as provided in par. (g), no action for damages may be maintained
2under this subsection upon a showing by a rental-purchase company against whom
3the alleged claim or violation is asserted that all of the following exist:
AB898-ASA2,27,54
1. All lessees similarly situated have been identified, or a reasonable effort to
5identify such other lessees has been made.
AB898-ASA2,27,76
2. All lessees identified under subd. 1. have been notified that, upon their
7request, the rental-purchase company shall make the appropriate remedy.
AB898-ASA2,27,98
3. The remedy requested by the lessees has been or in a reasonable time will
9be given.
AB898-ASA2,27,1310
4. The rental-purchase company has ceased from engaging, or if immediate
11cessation is impossible under the circumstances, the rental-purchase company will,
12within a reasonable time, cease to engage in any acts on which the alleged claim is
13based.
AB898-ASA2,27,1814
(g) An action for injunctive relief may be commenced without compliance with
15par. (c). Not less than 30 days after the commencement of an action for injunctive
16relief, and after compliance with par. (c), the lessee may amend his or her complaint
17without leave of court to include a request for damages. Paragraphs (e) and (f) shall
18apply if the complaint for injunctive relief is amended to request damages.
AB898-ASA2,27,2419
(h) As soon as practicable after the commencement of an action brought as a
20class action, the court shall determine by order whether it is to be so maintained. An
21order may be conditional, and may be altered or amended before the decision on the
22merits. If the court determines that the action may not be maintained as a class
23action, it shall allow the action to proceed on behalf of the parties appearing in the
24action.
AB898-ASA2,28,4
1(i) In any class action, the court shall direct to the members of the class the best
2notice practicable under the circumstances, including individual notice to all
3members who can be identified through reasonable effort. The notice shall inform
4each class member that:
AB898-ASA2,28,65
1. The court will exclude him or her from the class if he or she so requests by
6a specified date.
AB898-ASA2,28,87
2. The judgment, whether favorable or not, will include all members who do not
8request exclusion.
AB898-ASA2,28,109
3. Any member who does not request exclusion may enter an appearance
10through his or her counsel.
AB898-ASA2,28,1611
(j) The judgment in an action maintained as a class action under this section,
12whether or not favorable to the class, shall include and describe those whom the court
13finds to be members of the class. The judgment in an action maintained as a class
14action, whether or not favorable to the class, shall include and specify or describe
15those to whom the notice provided in par. (i) was directed, and who have not
16requested exclusion, and whom the court finds to be members of the class.
AB898-ASA2,28,1917
(k) When appropriate, an action may be brought or maintained as a class action
18with respect to particular issues, or a class may be divided into subclasses and each
19subclass treated as a class.
AB898-ASA2,28,2320
(L) If judgment is for a class of plaintiffs, the court shall render judgment in
21favor of the administrator of the division of banking in the department of financial
22institutions and against the defendants for all costs of notice incurred by the
23administrator in such action.
AB898-ASA2,28,2524
(m) In the conduct of actions to which this subsection applies, the court may
25make, alter, or amend orders that do any of the following:
AB898-ASA2,29,2
11. Determine the course of proceedings or prescribing measures to prevent
2undue repetition or complication in the presentation of evidence or argument.
AB898-ASA2,29,83
2. Require, for the protection of the members of the class or otherwise for the
4fair conduct of the action, that notice be given in such manner as the court may direct
5to some or all of the members of any step in the action, or of the proposed extent of
6the judgment, or of the opportunity of members to signify whether they consider the
7representation fair and adequate, to intervene and present claims or defenses, or
8otherwise to come into the action.
AB898-ASA2,29,99
3. Impose conditions on the representative parties or on intervenors.
AB898-ASA2,29,1110
4. Require that the pleadings be amended to eliminate therefrom allegations
11as to representation of absent persons, and that the action proceed accordingly.
AB898-ASA2,29,1212
5. Deal with similar procedural matters.
AB898-ASA2,29,1613
(n) Once certified by the court under this subsection, a class action shall not be
14dismissed or compromised without the approval of the court, and notice of the
15proposed dismissal or compromise shall be given to all members of the class in such
16manner as the court directs.
AB898-ASA2,29,2117
(o) A rental-purchase company shall not be liable in a class action for statutory
18damages computed under sub. (1) (b) relating to statutory damages, unless it is
19shown by a preponderance of the evidence that the violation was a willful and
20knowing violation of any provision of chs. 421 to 427 relating to rental-purchase
21agreements.
AB898-ASA2,30,222
(p) Reasonable attorneys' fees in a class action shall be determined by the value
23of the time reasonably expended by the attorney rather than by the amount of
24recovery on behalf of the class. A legal aid society or legal services program that
25represents a class shall be awarded a reasonable service fee in lieu of reasonable
1attorneys' fees, equal in amount to the amount of the attorneys' fees as measured by
2this subsection.
AB898-ASA2,30,53
(q) The administrator of the division of banking in the department of financial
4institutions, whether or not a party to an action, shall bear the costs of notice except
5that he or she may recover such costs from the defendant as provided in par. (L).
AB898-ASA2,30,12
6(5) Defense; bona fide error. Notwithstanding any other section of this
7chapter, no lessee shall be entitled, in an individual or class action, to recover any
8penalties provided under sub. (1) (b), if the rental-purchase company violating any
9provision of chs. 421 to 427 relating to rental-purchase agreements shows by a
10preponderance of the evidence that the violation was not intentional, and that the
11violation resulted from a bona fide error notwithstanding the maintenance of
12procedures reasonably adopted to avoid these errors.
AB898-ASA2,30,21
13(6) Double liability limited. The liability of a rental-purchase company under
14this chapter is in lieu of any liability under the federal Consumer Credit Protection
15Act and s. 138.09. An action by a person alleging a violation under this chapter may
16not be maintained if a final judgment has been rendered for or against that person
17with respect to the same violation under the federal Consumer Credit Protection Act
18or s. 138.09. If a final judgment is entered against any rental-purchase company
19under this chapter and the federal Consumer Credit Protection Act or s. 138.09 for
20the same violation, the rental-purchase company has a cause of action for
21appropriate relief to the extent necessary to avoid double liability.
AB898-ASA2,30,25
22(7) Necessary parties. If more than one lessee is a party to the same
23rental-purchase agreement, all of the lessees that are parties to the rental-purchase
24agreement shall be joined as plaintiffs in any action under sub. (1), and the lessees
25are entitled to only a single recovery under sub. (1).
AB898-ASA2,31,6
1425.503 Limitation on actions. An action brought by a lessee under any
2provision of chs. 421 to 427 relating to rental-purchase agreements shall be
3commenced within one year after the date on which the alleged violation occurred,
42 years after the date on which the rental-purchase agreement was entered into, or
5one year after the date on which the last payment was made under the
6rental-purchase agreement, whichever is later.
AB898-ASA2,31,8
7425.504 Venue. (1)
Generally. The venue for a claim arising out of a
8rental-purchase agreement is any of the following counties:
AB898-ASA2,31,99
(a) Where the lessee resides or is personally served.
AB898-ASA2,31,1010
(b) Where the rental property is located.
AB898-ASA2,31,1311
(c) Where the lessee sought or acquired the rental property or signed the
12document evidencing his or her obligation under the terms of the rental-purchase
13agreement.
AB898-ASA2,31,18
14(2) Change in venue. When it appears from the return of service of a summons
15or otherwise that the county in which an action is pending under sub. (1) is not a
16proper place of trial for the action, unless the defendant appears and waives the
17improper venue, the court shall transfer the action to any county that is a proper
18place of trial.
AB898-ASA2,31,21
19(3) Multiple defendants. If there are several defendants in an action arising
20out of a rental-purchase agreement, and if venue is based on residence, venue may
21be in the county of residence of any of the defendants.
AB898-ASA2, s. 28
22Section
28. 426.102 (intro.) of the statutes is renumbered 426.102 (1) (intro.).
AB898-ASA2,31,2424
426.102
(2) Subchapters III and IV apply to rental-purchase agreements.
AB898-ASA2, s. 30
1Section
30. Subchapter IV of chapter 426 [precedes 426.4005] of the statutes
2is created to read:
AB898-ASA2,32,44
Subchapter IV
AB898-ASA2,32,75
Administration and licensing
6
related to
7
rental-purchase agreements
AB898-ASA2,32,8
8426.4005 Definitions. In this subchapter:
AB898-ASA2,32,9
9(1) "Administrator" means the administrator of the division.
AB898-ASA2,32,11
10(2) "Division" means the division of banking in the department of financial
11institutions.
AB898-ASA2,32,13
12426.401 License required. No person may operate as a rental-purchase
13company without a valid license issued by the division under this subchapter.
AB898-ASA2,32,18
14426.402 Application for license; fees; bond. (1) Application. (a) An
15application for a license under this subchapter shall be made to the division, in
16writing, in the form prescribed by the division. In addition to any other information
17that may be required by the division, an application for a license under this
18subchapter shall include all of the following:
AB898-ASA2,32,1919
1. If the applicant is an individual, the applicant's social security number.
AB898-ASA2,32,2120
2. If the applicant is not an individual, the applicant's federal employer
21identification number.
AB898-ASA2,32,2322
(b) The division may not disclose any information received under par. (a) 1. or
232. to any person except as follows:
AB898-ASA2,32,2524
1. The division may disclose the information to the department of revenue for
25the sole purpose of requesting certifications under s. 73.0301.
AB898-ASA2,33,3
12. The division may disclose the information to the department of workforce
2development in accordance with a memorandum of understanding entered into
3under s. 49.857.
AB898-ASA2,33,6
4(2) Application fees. At the time of applying to the division for a license under
5this subchapter, the applicant shall pay any applicable fee specified by the
6administrator by rule.
AB898-ASA2,33,9
7(3) Bond. The division may require an applicant or licensee to file with the
8division and maintain in force a bond, in a form prescribed by and acceptable to the
9division, and in an amount determined by the division.
AB898-ASA2,33,18
10426.403 Issuance or denial of license.
(1) Investigation. Upon the filing
11of an application under s. 426.402 (1) and the payment of any applicable fee, the
12division shall perform an investigation. Except as provided in sub. (3), if the division
13finds that the character, general fitness, and financial responsibility of the applicant;
14the members of the applicant, if the applicant is a partnership, limited liability
15company, or association; and the officers and directors of the applicant, if the
16applicant is a corporation warrant the belief that the business will be operated in
17compliance with any provision of chs. 421 to 427 relating to rental-purchase
18agreements, the division shall issue a license to the applicant.
AB898-ASA2,33,24
19(2) Denial; notice; hearing. Except as provided in sub. (3), the division may
20deny an application made under s. 426.402 (1) by providing written notice to the
21applicant stating the grounds for the denial. Except as provided in sub. (3), a person
22whose application is denied may request a hearing under s. 227.44 within 30 days
23after the date of denial. The division may appoint a hearing examiner under s. 227.46
24to conduct the hearing.