409.340
409.340
Effectiveness of right of recoupment or setoff against deposit account. 409.340(1)
(1)
Exercise of recoupment or setoff. Except as otherwise provided in
sub. (3), a bank with which a deposit account is maintained may exercise any right of recoupment or setoff against a secured party that holds a security interest in the deposit account.
409.340(2)
(2) Recoupment or setoff not affected by security interest. Except as otherwise provided in
sub. (3), the application of this chapter to a security interest in a deposit account does not affect a right of recoupment or setoff of the secured party as to a deposit account maintained with the secured party.
409.340(3)
(3) When setoff ineffective. The exercise by a bank of a setoff against a deposit account is ineffective against a secured party that holds a security interest in the deposit account which is perfected by control under
s. 409.104 (1) (c), if the setoff is based on a claim against the debtor.
409.340 History
History: 2001 a. 10.
409.341
409.341
Bank's rights and duties with respect to deposit account. Except as otherwise provided in
s. 409.340 (3), and unless the bank otherwise agrees in an authenticated record, a bank's rights and duties with respect to a deposit account maintained with the bank are not terminated, suspended, or modified by:
409.341(1)
(1) The creation, attachment, or perfection of a security interest in the deposit account;
409.341(2)
(2) The bank's knowledge of the security interest; or
409.341(3)
(3) The bank's receipt of instructions from the secured party.
409.341 History
History: 2001 a. 10.
409.342
409.342
Bank's right to refuse to enter into or disclose existence of control agreement. This chapter does not require a bank to enter into an agreement of the kind described in
s. 409.104 (1) (b), even if its customer so requests or directs. A bank that has entered into such an agreement is not required to confirm the existence of the agreement to another person unless requested to do so by its customer.
409.342 History
History: 2001 a. 10.
RIGHTS OF 3RD PARTIES
409.401
409.401
Alienability of debtor's rights. 409.401(1)
(1)
Other law governs alienability; exceptions. Except as otherwise provided in
sub. (2) and
ss. 409.406,
409.407,
409.408, and
409.409, whether a debtor's rights in collateral may be voluntarily or involuntarily transferred is governed by law other than this chapter.
409.401(2)
(2) Agreement does not prevent transfer. An agreement between the debtor and secured party which prohibits a transfer of the debtor's rights in collateral or makes the transfer a default does not prevent the transfer from taking effect.
409.401 History
History: 2001 a. 10.
409.401 Annotation
If a security agreement does not explicitly provide that transfer of collateral constitutes default and the secured party is not entitled to immediate possession, sale of collateral is not a conversion. Production Credit Association of Chippewa Falls v. Equity Coop Livestock,
82 Wis. 2d 5,
261 N.W.2d 127 (1978).
409.401 Annotation
A condition imposed by a secured party on authorization to sell collateral is ineffective unless performance of the condition is within the buyer's control. Production Credit AssociatIon of Madison v. Nowatzski,
90 Wis. 2d 344,
280 N.W.2d 118 (1979).
409.401 Note
NOTE: The above annotated materials cite to the pre-
2001 Wis. Act 10 version of ch. 409.
409.402
409.402
Secured party not obligated on contract of debtor or in tort. The existence of a security interest, agricultural lien, or authority given to a debtor to dispose of or use collateral, without more, does not subject a secured party to liability in contract or tort for the debtor's acts or omissions.
409.402 History
History: 2001 a. 10.
409.403
409.403
Agreement not to assert defenses against assignee. 409.403(2)
(2) Agreement not to assert claim or defense. Except as otherwise provided in this section, an agreement between an account debtor and an assignor not to assert against an assignee any claim or defense that the account debtor may have against the assignor is enforceable by an assignee that takes an assignment:
409.403(2)(c)
(c) Without notice of a claim of a property or possessory right to the property assigned; and
409.403(2)(d)
(d) Without notice of a defense or claim in recoupment of the type that may be asserted against a person entitled to enforce a negotiable instrument under
s. 403.305 (1).
409.403(3)
(3) When sub. (2) not applicable. Subsection (2) does not apply to defenses of a type that may be asserted against a holder in due course of a negotiable instrument under
s. 403.305 (2).
409.403(4)
(4) Omission of required statement in consumer transaction. In a consumer transaction, if a record evidences the account debtor's obligation, law other than this chapter requires that the record include a statement to the effect that the rights of an assignee are subject to claims or defenses that the account debtor could assert against the original obligee, and the record does not include such a statement:
409.403(4)(a)
(a) The record has the same effect as if the record had included such a statement; and
409.403(4)(b)
(b) The account debtor may assert against an assignee those claims and defenses that would have been available if the record had included such a statement.
409.403(5)
(5) Rule for individual under other law. This section is subject to law other than this chapter which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.
409.403(6)
(6) Other law not displaced. Except as otherwise provided in
sub. (4), this section does not displace law other than this chapter which gives effect to an agreement by an account debtor not to assert a claim or defense against an assignee.
409.403 History
History: 2001 a. 10.
409.404
409.404
Rights acquired by assignee; claims and defenses against assignee. 409.404(1)
(1)
Assignee's rights subject to terms, claims, and defenses; exceptions. Unless an account debtor has made an enforceable agreement not to assert defenses or claims, and subject to
subs. (2) to
(5), the rights of an assignee are subject to:
409.404(1)(a)
(a) All terms of the agreement between the account debtor and assignor and any defense or claim in recoupment arising from the transaction that gave rise to the contract; and
409.404(1)(b)
(b) Any other defense or claim of the account debtor against the assignor which accrues before the account debtor receives a notification of the assignment authenticated by the assignor or the assignee.
409.404(2)
(2) Account debtor's claim reduces amount owed to assignee. Subject to
sub. (3) and except as otherwise provided in
sub. (4), the claim of an account debtor against an assignor may be asserted against an assignee under
sub. (1) only to reduce the amount the account debtor owes.
409.404(3)
(3) Rule for individual under other law. This section is subject to law other than this chapter which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.
409.404(4)
(4) Omission of required statement in consumer transaction. In a consumer transaction, if a record evidences the account debtor's obligation, law other than this chapter requires that the record include a statement to the effect that the account debtor's recovery against an assignee with respect to claims and defenses against the assignor may not exceed amounts paid by the account debtor under the record, and the record does not include such a statement, the extent to which a claim of an account debtor against the assignor may be asserted against an assignee is determined as if the record had included such a statement.
409.404(5)
(5) Inapplicability to health care insurance receivable. This section does not apply to an assignment of a health care insurance receivable.
409.404 History
History: 2001 a. 10.
409.404 Annotation
There is no distinction between a party with a security interest in a debtor's accounts receivable and a party who is an assignee of a debtor's accounts receivable. Bank of Waunakee v. Rochester Cheese Sales, Inc.
906 F.2d 1185 (1990).
409.404 Note
NOTE: The above annotated materials cite to the pre-
2001 Wis. Act 10 version of ch. 409.
409.405
409.405
Modification of assigned contract. 409.405(1)
(1)
Effect of modification on assignee. A modification of or substitution for an assigned contract is effective against an assignee if made in good faith. The assignee acquires corresponding rights under the modified or substituted contract. The assignment may provide that the modification or substitution is a breach of contract by the assignor. This subsection is subject to
subs. (2) to
(4).
409.405(2)
(2) Applicability of sub. (1). Subsection (1) applies to the extent that:
409.405(2)(a)
(a) The right to payment or a part thereof under an assigned contract has not been fully earned by performance; or
409.405(2)(b)
(b) The right to payment or a part thereof has been fully earned by performance and the account debtor has not received notification of the assignment under
s. 409.406 (1).
409.405(3)
(3) Rule for individual under other law. This section is subject to law other than this chapter which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.
409.405(4)
(4) Inapplicability to health care insurance receivable. This section does not apply to an assignment of a health care insurance receivable.
409.405 History
History: 2001 a. 10.
409.406
409.406
Discharge of account debtor; notification of assignment; identification and proof of assignment; restrictions on assignment of accounts, chattel paper, payment intangibles, and promissory notes ineffective. 409.406(1)(1)
Discharge of account debtor; effect of notification. Subject to
subs. (2) to
(9), an account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.
409.406(2)
(2) When notification ineffective. Subject to
sub. (8), notification is ineffective under
sub. (1):
409.406(2)(a)
(a) If it does not reasonably identify the rights assigned;
409.406(2)(b)
(b) To the extent that an agreement between an account debtor and a seller of a payment intangible limits the account debtor's duty to pay a person other than the seller and the limitation is effective under law other than this chapter; or
409.406(2)(c)
(c) At the option of an account debtor, if the notification notifies the account debtor to make less than the full amount of any installment or other periodic payment to the assignee, even if:
409.406(2)(c)1.
1. Only a portion of the account, chattel paper, or payment intangible has been assigned to that assignee;
409.406(2)(c)3.
3. The account debtor knows that the assignment to that assignee is limited.
409.406(3)
(3) Proof of assignment. Subject to
sub. (8), if requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made. Unless the assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under
sub. (1).
409.406(4)
(4) Term restricting assignment generally ineffective. Except as otherwise provided in
sub. (5) and
ss. 409.407 and
411.303, and subject to
sub. (8), a term in an agreement between an account debtor and an assignor or in a promissory note is ineffective to the extent that it:
409.406(4)(a)
(a) Prohibits, restricts, or requires the consent of the account debtor or person obligated on the promissory note to the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest in, the account, chattel paper, payment intangible, or promissory note; or
409.406(4)(b)
(b) Provides that the assignment or transfer or the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the account, chattel paper, payment intangible, or promissory note.
409.406(5)
(5) Inapplicability of sub. (4) to certain sales. Subsection (4) does not apply to the sale of a payment intangible or promissory note.
Effective date note
NOTE: Sub. (5) is amended eff. 7-1-13 by
2011 Wis. Act 206 to read:
Effective date text
(5) Inapplicability of sub. (4) to certain sales. Subsection (4) does not apply to the sale of a payment intangible or promissory note, other than a sale pursuant to a disposition under s. 409.610 or an acceptance of collateral under s. 409.620.
409.406(6)
(6) Legal restrictions on assignment generally ineffective. Except as otherwise provided in
ss. 108.13,
409.407,
411.303, and
565.30 and subject to
subs. (8) and
(9), a rule of law, statute, or rule that prohibits, restricts, or requires the consent of a government, governmental body or official, or account debtor to the assignment or transfer of, or creation of a security interest in, an account or chattel paper is ineffective to the extent that the rule of law, statute, or rule:
409.406(6)(a)
(a) Prohibits, restricts, or requires the consent of the government, governmental body or official, or account debtor to the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest in, the account or chattel paper; or
409.406(6)(b)
(b) Provides that the assignment or transfer or the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the account or chattel paper.
409.406(7)
(7) Subsection (2) (c) not waivable. Subject to
sub. (8), an account debtor may not waive or vary its option under
sub. (2) (c).
409.406(8)
(8) Rule for individual under other law. This section is subject to law other than this chapter which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.
409.406(9)
(9) Inapplicability to health-care-insurance receivable. This section does not apply to an assignment of a health-care-insurance receivable.
409.406 History
History: 2001 a. 10;
2011 a. 206.
409.407
409.407
Restrictions on creation or enforcement of security interest in leasehold interest or in leasor's residual interest. 409.407(1)(1)
Term restricting assignment generally ineffective. Except as otherwise provided in
sub. (2), a term in a lease agreement is ineffective to the extent that it:
409.407(1)(a)
(a) Prohibits, restricts, or requires the consent of a party to the lease to the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest in, an interest of a party under the lease contract or in the lessor's residual interest in the goods; or
409.407(1)(b)
(b) Provides that the assignment or transfer or the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the lease.
409.407(2)
(2) Effectiveness of certain terms. Except as otherwise provided in
s. 411.303 (7), a term described in
sub. (1) (b) is effective to the extent that there is:
409.407(2)(a)
(a) A transfer by the lessee of the lessee's right of possession or use of the goods in violation of the term; or
409.407(2)(b)
(b) A delegation of a material performance of either party to the lease contract in violation of the term.
409.407(3)
(3) Security interest not material impairment. The creation, attachment, perfection, or enforcement of a security interest in the lessor's interest under the lease contract or the lessor's residual interest in the goods is not a transfer that materially impairs the lessee's prospect of obtaining return performance or materially changes the duty of or materially increases the burden or risk imposed on the lessee within the purview of
s. 411.303 (4) unless, and then only to the extent that, enforcement actually results in a delegation of material performance of the lessor.
409.407 History
History: 2001 a. 10.
409.408
409.408
Restrictions on assignment of promissory notes, health-care-insurance receivables, and certain general intangibles ineffective.
