SUMMONS (Small Claim)
THE STATE OF WISCONSIN
To said Defendant:
The Plaintiff named above has commenced an action to recover possession of the following property:
[Description of Collateral or Leased Goods]
This claim arises under a consumer credit transaction under which you are alleged to be in default, as described in the attached complaint.
IF YOU ARE NOT IN DEFAULT OR HAVE AN OBJECTION TO THE PLAINTIFF'S TAKING THE PROPERTY LISTED ABOVE, YOU MAY ARRANGE FOR A HEARING ON THESE ISSUES BY APPEARING IN THE CIRCUIT COURT OF .... COUNTY, IN THE COURTHOUSE LOCATED IN ...., (municipality), BEFORE JUDGE .... OR ANY OTHER JUDGE TO WHOM THE ACTION MAY BE ASSIGNED, ON .... (date), AT .... (time). IF YOU DO NOT APPEAR AT THAT TIME, JUDGMENT WILL BE RENDERED AGAINST YOU FOR DELIVERY OF THE PROPERTY TO THE PLAINTIFF.
DATED ...., .... (year)
Clerk of Circuit Court
Plaintiff's P. O. Address
Plaintiff's Attorney (if any)
Defendant's P. O. Address
The complaint in such action shall conform with the requirements of s. 425.109
Upon the written request of the customer, the merchant shall produce an accurate copy of writings evidencing any transactions pursuant to an open-end credit plan upon which the merchant's claim is made, and judgment shall not be entered for the merchant until the merchant does so.
Upon entry of judgment for the plaintiff, the plaintiff shall have the right to:
Have execution issue to require the sheriff of the county where the collateral or leased goods may be to take the same from the defendant and deliver it to the plaintiff; or
Immediately exercise the right to nonjudicial recovery of the collateral or leased goods, subject to s. 425.206
Action pursuant to this section may be commenced at any time after the customer is in default, but the return day of process may not be set prior to the expiration of the period for cure of the default by the customer (s. 425.105
), if applicable.
Wisconsin's New Automobile Repossession law: Creditors in the Driver's Seat. Anderson & Meili. Wis. Law. Feb. 2007.
Nonjudicial enforcement limited. 425.206(1)
Notwithstanding any other provision of law, no merchant may take possession of collateral or goods subject to a consumer lease in this state except when any of the following apply:
The customer has surrendered the collateral or leased goods.
Judgment for the merchant has been entered in a proceeding for recovery of collateral or leased goods under s. 425.205
, or for possession of the collateral or leased goods under s. 425.203 (2)
For motor vehicle collateral or goods subject to a motor vehicle consumer lease, the customer has not made a demand as specified in s. 425.205 (1g) (a) 3.
and, no sooner than 15 days after the merchant gives the notice specified in s. 425.205 (1g) (a)
, the merchant has taken possession of the collateral or goods in accordance with sub. (2)
In taking possession of collateral or leased goods, no merchant may do any of the following:
Enter a dwelling used by the customer as a residence except at the voluntary request of a customer.
Under the facts of the case, the customer did not "voluntarily surrender"collateral sub. (1) (a). Wachal v. Ketterhagen Motor Sales, Inc. 81 Wis. 2d 605
, 260 N.W.2d 770
Notwithstanding s. 421.201 (5), this section governed repossessions outside the state when the contract provided for enforcement under the "internal law" of Wisconsin. First Wisconsin National Bank of Madison v. Nicolaou, 85 Wis. 2d 393
, 270 N.W.2d 582
(Ct. App. 1978).
A "breach of the peace" under sub. (2) has the same meaning as in s. 409.503. Repossession in disregard of the debtor's oral protest is a breach of the peace. Punitive damages may be appropriate as the result of the breach of the peace. Hollibush v. Ford Motor Company, 179 Wis. 2d 799
, 508 N.W.2d 449
(Ct. App. 1993).
The abolition of self-help repossession; the poor pay even more. White, 1973 WLR 503.
The impact of denying self-help repossession of automobiles: a case study of the Wisconsin consumer act. Whitford, Laufer, 1975 WLR 607.
Wisconsin's New Automobile Repossession law: Creditors in the Driver's Seat. Anderson & Meili. Wis. Law. Feb. 2007.
Notice to law enforcement. 425.2065(1)
In this section, "law enforcement agency" means the police department, combined protective services department under s. 61.66
, or sheriff, that has primary responsibility for providing police protection services in the city, village, or town in which a repossession is expected to occur.
A merchant who repossesses motor vehicle collateral or goods subject to a motor vehicle consumer lease under s. 425.206 (1) (d)
, or a person who repossess such collateral or goods on behalf of the merchant, shall notify, verbally or in writing, the law enforcement agency about the repossession. The notification shall include the names of the customer, merchant, and, if applicable, the person who repossesses the collateral or goods on behalf of the merchant. The notification shall also include a description of the collateral or goods. Notification under this subsection shall be made before the repossession occurs.
History: 2005 a. 255
Restraining order to protect collateral or leased goods; abandoned property. 425.207(1)
If the court finds that the merchant probably will recover possession of the collateral or goods subject to a consumer lease, and the customer is acting, or is about to act, with respect to the collateral or leased goods in a manner which substantially impairs the merchant's prospect for realization of the merchant's security interest or the merchant's interest in the leased goods, the court may issue an order pursuant to s. 813.02
restraining the customer from so acting with respect to the collateral or leased goods, and need not require a bond by the merchant, notwithstanding s. 813.06
A merchant who reasonably believes that a customer has abandoned collateral or goods subject to a consumer lease may take possession of such collateral or leased goods and preserve it. However, the customer may recover such collateral or leased goods upon request unless at the time of request the merchant has perfected the right to possession under s. 425.206 (1) (a)
, or (d)
. A merchant taking possession of collateral or leased goods pursuant to this section shall promptly send notification to the customer's last-known address of such action and of the customer's right to recover such collateral or leased goods under this section. If the collateral or leased goods are recovered by the customer pursuant to this section, it shall be returned to the customer at the location where the merchant took possession of such collateral or leased goods pursuant to this section or, at the option of the merchant, at such other location designated by the customer; and any expense incurred by the merchant in taking possession of, holding and returning the collateral or leased goods to the customer shall be borne by the merchant. If after taking possession of collateral or leased goods pursuant to this subsection, the merchant perfects the right to possession under s. 425.206 (1) (a)
, or (d)
, the customer is liable for the expenses set forth in s. 409.615 (1)
. In determining such expenses, leased goods shall be considered collateral under s. 409.615 (1)
. However, a customer is not liable for expenses of holding the collateral or leased goods from the time the merchant takes possession until the merchant perfects the right to possession in the manner provided in this subsection.
Customer's right to redeem. 425.208(1)
For a period of 15 days following exercise by the creditor of nonjudicial enforcement rights (s. 425.206
) or issuance of process (s. 425.205
) with regard to the collateral, the customer shall be entitled to redeem the goods by tendering:
The total of all unpaid amounts, including any unpaid delinquency or deferral charges due at the time of tender, without acceleration; plus
Performance necessary to cure any default other than nonpayment of amounts due; plus
Any court costs, filing and service fees, and bond premium charges incurred by the creditor; plus
If a writing evidencing the consumer credit transaction so provides, expenses the creditor is entitled to recover under s. 422.413 (2g) (a)
A performance deposit, in the amount of 3 scheduled installments, or minimum payments in the case of an open-end credit plan.
One-third of the total obligation remaining unpaid with respect to the consumer credit transaction.
Tender of the payment and performance pursuant to sub. (1)
restores to the customer the customer's rights under the agreement as though all payments and performance had been made as scheduled.
Upon such redemption, any process under which the collateral has been held shall be vacated, any pending action shall be dismissed, and the collateral shall be returned to the customer.
The performance deposit shall be held by the merchant to secure, and may be applied at any time to, the remaining obligations of the customer under the consumer transaction.
The existence of the deposit does not cure any subsequent default of the customer, and the deposit need not be credited to the customer's account until the remaining unpaid balance of the transaction becomes equal to the deposit. In the event of a subsequent default, prepayment, or other occurrence (except deferral) which requires the computation under chs. 421
of the outstanding obligation of the customer, the deposit shall be credited to the amount paid for the purposes of such computation.
The creditor shall not dispose of the collateral or enter into a contract for the disposition of the collateral, until the expiration of the period for redemption provided in this section, unless the collateral is perishable or threatens to decline speedily in value. Upon the expiration of such period any disposition of the collateral shall be subject to subch. VI of ch. 409
, except that the customer may be liable for a deficiency only to the extent provided in ss. 425.209
Restrictions on deficiency judgments. 425.209(1)(1)
This section applies to a deficiency on a consumer credit sale of goods or services and on a consumer loan in which the lender is subject to defenses arising from sales (s. 422.408
); a customer is not liable for a deficiency unless the merchant has disposed of the goods in good faith and in a commercially reasonable manner.
If the merchant repossesses or accepts voluntary surrender of goods which were the subject of the sale and in which the merchant has a security interest, the customer is not personally liable to the merchant for the unpaid balance of the debt arising from the sale of a commercial unit of the goods of which the amount owing at the time of default was $1,000 or less, and the merchant is not obligated to resell the collateral unless the customer has paid 60% or more of the cash price and has not signed after default a statement renouncing the customer's rights in the collateral.
If the merchant repossesses or accepts voluntary surrender of goods which were not the subject of the sale but in which the merchant has a security interest to secure a debt arising from a sale of goods or services or a combined sale of goods and services and the amount owing at the time of default was $1,000 or less, the customer is not personally liable to the merchant for the unpaid balance of the debt arising from the sale, and the merchant's duty to dispose of the collateral is governed by the provisions on disposition of collateral under chs. 401
If the lender takes possession or accepts voluntary surrender of goods in which the lender has a security interest to secure a debt arising from a consumer loan in which the lender is subject to defenses arising from sales (s. 422.408
) and the amount owing at the time of default of the loan paid to or for the benefit of the customer were $1,000 or less, the customer is not personally liable to the lender for the unpaid balance of the debt arising from the loan and the lender's duty to dispose of the collateral is governed by the provisions on disposition of collateral under chs. 401
The customer may be liable in damages to the merchant if the customer has wrongfully damaged the collateral or if, after judgment for the creditor has been entered in a proceeding for recovery of collateral under s. 425.205
, the customer has wrongfully failed to make the collateral available to the merchant.
If the merchant elects to bring an action against the customer for a debt arising from a consumer credit sale of goods or services or from a consumer loan in which the lender is subject to defenses arising from sales (s. 422.408
), when under this section the merchant would not be entitled to a deficiency judgment if the merchant took possession of the collateral, and obtains judgment:
The merchant may not take possession of the collateral; and
The collateral is not subject to levy or sale on execution or similar proceedings pursuant to the judgment.
See also ss. DFI-WCA 1.70
, Wis. adm. code.
Proof of disposal of goods in accordance with sub. (1) must be made by a merchant to obtain a deficiency judgment. Failure to do so need not be asserted as an affirmative defense. Shoeder's Auto Center, Inc. v. Teschner, 166 Wis. 2d 198
, 479 N.W.2d 203
(Ct. App. 1991).
Computation of deficiency.
If the creditor is entitled to a deficiency judgment pursuant to s. 425.209 (1)
, the creditor shall be entitled to recover from the customer the deficiency, if any, remaining after deducting the fair market value of the collateral from the unpaid balance.
History: 1971 c. 239
Remedies to be liberally administered. 425.301(1)(1)
The remedies provided by this subchapter shall be liberally administered to the end that the customer as the aggrieved party shall be put in at least as good a position as if the creditor had fully complied with chs. 421
. Recoveries under chs. 421
shall not in themselves preclude the award of punitive damages in appropriate cases.