846.05
846.05
Foreclosure for nonpayment of installment. An action for the foreclosure of a mortgage upon which there shall be due any interest or any installment of the principal and there shall be other installments to become due shall be dismissed upon the defendant's bringing into court, before judgment, the principal and interest due, with the costs. If after judgment is entered in such case the defendant shall bring into court the principal and interest due, with the costs, proceedings on the judgment shall be stayed; but the court may enforce the judgment by a further order, upon a subsequent default in the payment of any installment of the principal, or of any interest thereafter to grow due.
846.05 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.05; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.05.
846.06
846.06
Sale in parcels. If in the cases mentioned in
s. 846.05 the defendant shall not, before judgment, bring into court the amount so due with costs the court before rendering judgment shall ascertain by reference or otherwise the situation of the mortgaged premises and whether they can be sold in parcels without injury to the interests of the parties; and if it shall appear that they can be so sold the judgment shall direct a sale in parcels, specifying them, or so much thereof as will be sufficient to pay the amount due for principal, interests and costs; and such judgment shall remain as security for any subsequent default.
846.06 History
History: 1973 c. 189 ss.
7,
20; Stats. 1973 s. 816.06; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.06.
846.07
846.07
Order of sale for other defaults. If, in the case mentioned in
s. 846.06, there shall be any default subsequent to judgment in the payment of any installment or of any interest due upon such mortgage the court may, upon petition of the plaintiff, direct a sale of enough of the mortgaged premises, to be made under the judgment, to satisfy the amount due, with the costs of such petition and the proceedings thereon; and like proceedings shall be had as often as a default shall happen.
846.07 History
History: 1973 c. 189 ss.
7,
20; Stats. 1973 s. 816.07; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.07.
846.08
846.08
Judgment for sale of whole; adjustment of parties' rights. If, in any case mentioned in
ss. 846.06 and
846.07 it shall appear that the mortgaged premises are so situated that they cannot be sold in parcels without injury to the interests of the parties or that the sale of the whole will be most beneficial to them the court may adjudge the sale of the whole in which case the proceeds of sale, after deducting the costs of the action and of sale, shall be applied to the payment of the sums due and to become due deducting from all sums not due, which do not bear interest, interest from the time of payment to the time when the same are payable or the court may direct the balance of the proceeds of sale, after paying the sum then due with such costs, to be placed at interest for the benefit of the plaintiff, to be paid to the plaintiff as such subsequent payments or installments shall become due, with the interest thereon. The surplus, after paying the amount due the plaintiff and costs, shall be paid to the party entitled thereto on the order of the court.
846.08 History
History: 1973 c. 189 ss.
7,
20; Stats. 1973 s. 816.08; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.08;
1993 a. 486.
846.09
846.09
Amendments as to parties; process and pleading. In any action for the foreclosure of a mortgage, at any time after judgment and before a sale pursuant thereto, the plaintiff may be granted leave to amend the summons, complaint and all the proceedings in the action by making as defendant any person who is a proper or necessary party thereto. Such person so made a party shall be served with the summons in like manner as if originally a party, and may answer and defend, and all matters and proceedings as to the person shall be had and taken in like manner as if the person had been originally made a party thereto. After such person has been thus made a party and served, and the person's rights adjudicated upon, the original judgment may be so amended as to bar and foreclose the person thereby, or to make any provisions in regard to the person's rights and interests in like manner as it could have done had the person been made originally a party.
846.09 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.09; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.09;
1993 a. 486.
846.10(1)(1) If the plaintiff recovers the judgment shall describe the mortgaged premises and fix the amount of the mortgage debt then due and also the amount of each installment thereafter to become due, and the time when it will become due, and whether the mortgaged premises can be sold in parcels and whether any part thereof is a homestead, and shall adjudge that the mortgaged premises be sold for the payment of the amount then due and of all installments which shall become due before the sale, or so much thereof as may be sold separately without material injury to the parties interested, and be sufficient to pay such principal, interest and costs; and when demanded in the complaint, direct that judgment shall be rendered for any deficiency against the parties personally liable and, if the sale is to be by referee, the referee must be named therein.
846.10(2)
(2) Any party may become a purchaser. No sale involving a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization may be held until the expiration of 12 months from the date when judgment is entered, except a sale under
s. 846.101 or
846.102. Notice of the time and place of sale shall be given under
ss. 815.31 and
846.16 and may be given within the 12-month period except that the first printing of the notice shall not be made less than 10 months after the date when judgment is entered, except that the sale of a farm shall not be made or advertised until the expiration of one year from the date when such judgment is entered. In all cases the parties may, by stipulation, filed with the clerk, consent to an earlier sale. Sales under foreclosure of mortgages given by any railroad corporation may be made immediately after the rendition of the judgment.
846.10(3)
(3) The proceeds of every sale shall be applied to the discharge of the debt adjudged to be due and the costs awarded; and if there shall be any surplus it shall be subject to the order of the court. If any surplus remains in the court for 3 months, without being applied for, the court shall direct the same to be put out at interest for the benefit of the party entitled thereto to be paid to the party upon the order of such court.
846.10(4)
(4) The court may order in the judgment of foreclosure that all sums advanced by the plaintiff for insurance, necessary repairs and taxes not included in the judgment may be added to the judgment by order at any time after the entry thereof.
846.10 History
History: 1973 c. 189 ss.
7,
20; Stats. 1973 s. 816.10; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.10;
1977 c. 304;
1993 a. 486.
846.10 Annotation
A judgment of foreclosure and sale is a final judgment appealable as a matter of right under s. 808.03 (1). An appeal from an order confirming the sale does not enable the appellant to challenge the judgment of foreclosure. Shuput v. Lauer,
109 Wis. 2d 164,
325 N.W.2d 321 (1982).
846.10 Annotation
There is no statutory requirement that sale proceeds be applied first to the portion of the debt that is guaranteed. Crown Life Insurance Co. v. LaBonte,
111 Wis. 2d 26,
330 N.W.2d 201 (1983).
846.10 Annotation
In a foreclosure action under s. 703.16 (8) based on a failure to pay condominium fees, sub. (1) could not be applied sensibly to require a statement of installments to become due because monthly assessments were in varying amounts. The 12-month redemption period under s. 846.10 (2) is applicable to such foreclosures. Geneva National Community Association, Inc. v. Friedman,
228 Wis. 2d 572,
598 N.W.2d 600 (Ct. App. 1999),
98-1010.
846.10 Annotation
Although a judgment must state whether any part of the property is homestead, if the evidence establishes a property is nonhomestead, the judgment need not state that fact. Geneva National Community Association, Inc. v. Friedman,
228 Wis. 2d 572,
598 N.W.2d 600 (Ct. App. 1999),
98-1010.
846.10 Annotation
No statute provides that a creditor may not foreclose on a mortgage because the creditor has, in a prior action, obtained a judgment of foreclosure on another mortgage securing the same debt and a deficiency judgment. Bank of Sun Prairie v. Marshall Development Co.
2001 WI App 64,
242 Wis. 2d 355,
626 N.W.2d 319,
00-1076.
846.10 Annotation
The Federal Farmers Home Administration is not subject to state exemption laws in the foreclosure of its mortgages. U.S. v. Einum,
821 F. Supp. 1283 (1993).
846.101
846.101
Foreclosure without deficiency; 20-acre parcels. 846.101(1)(1) If the mortgagor has agreed in writing at the time of the execution of the mortgage to the provisions of this section, and the foreclosure action involves a one- to 4-family residence that is owner-occupied at the commencement of the action, a farm, a church or a tax-exempt charitable organization, the plaintiff in a foreclosure action of a mortgage on real estate of 20 acres or less, which mortgage is recorded subsequent to January 22, 1960, may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage, and to consent that the mortgagor, unless he or she abandons the property, may remain in possession of the mortgaged property and be entitled to all rents, issues and profits therefrom to the date of confirmation of the sale by the court.
846.101(2)
(2) When plaintiff so elects, judgment shall be entered as provided in this chapter, except that no judgment for deficiency may be ordered therein nor separately rendered against any party who is personally liable for the debt secured by the mortgage and the sale of such mortgaged premises shall be made upon the expiration of 6 months from the date when such judgment is entered. Notice of the time and place of sale shall be given under
ss. 815.31 and
846.16 within such 6-month period except that first printing of a copy of such notice in a newspaper shall not be made less than 4 months after the date when such judgment is entered.
846.101 History
History: 1973 c. 189 ss.
7,
20; Stats. 1973 s. 816.101; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.101;
1977 c. 304;
2009 a. 180.
846.101 Annotation
An election by a mortgagee to foreclose under s. 816.101, [now 846.101] on one or more mortgages securing a debt does not bar foreclosure upon the remaining mortgages but does bar pursuit of a personal deficiency. Glover v. Marine Bank of Beaver Dam,
117 Wis. 2d 684,
345 N.W.2d 449 (1984).
846.101 Annotation
There is no reasonable way to read s. 846.04 (1) and this section to mean that a money judgment obtained on a second mortgage and note should count as a deficiency judgment for purposes of a foreclosure action on a separate indebtedness secured by a first mortgage. Harbor Credit Union v. Samp,
2011 WI App 40,
332 Wis. 2d 214,
796 N.W.2d 813,
10-0974.
846.101 Annotation
In a foreclosure was under s. 846.101, the Veterans Administration was not estopped from pursuing a deficiency against a veteran under an agreement to indemnify the VA for the VA's loss on a loan guaranty. U.S. v. Davis,
961 F.2d 603 (1992).
846.102
846.102
Abandoned premises. 846.102(1)(1) In an action for enforcement of a mortgage lien if the court makes an affirmative finding upon proper evidence being submitted that the mortgaged premises have been abandoned by the mortgagor and assigns, judgment shall be entered as provided in
s. 846.10 except that the sale of such mortgaged premises shall be made upon the expiration of 5 weeks from the date when such judgment is entered. Notice of the time and place of sale shall be given under
ss. 815.31 and
846.16 and placement of the notice may commence when judgment is entered. In this section "abandoned" means the relinquishment of possession or control of the premises whether or not the mortgagor or the mortgagor's assigns have relinquished equity and title.
846.102(2)
(2) In addition to the parties to the action to enforce a mortgage lien, a representative of the city, town, village, or county where the mortgaged premises are located may provide testimony or evidence to the court under
sub. (1) relating to whether the premises have been abandoned by the mortgagor. In determining whether the mortgaged premises have been abandoned, the court shall consider the totality of the circumstances, including the following:
846.102(2)(a)
(a) Boarded, closed, or damaged windows or doors to the premises.
846.102(2)(b)
(b) Missing, unhinged, or continuously unlocked doors to the premises.
846.102(2)(d)
(d) Accumulation of trash or debris on the premises.
846.102(2)(e)
(e) At least 2 reports to law enforcement officials of trespassing, vandalism, or other illegal acts being committed on the premises.
846.102(2)(f)
(f) Conditions that make the premises unsafe or unsanitary or that make the premises in imminent danger of becoming unsafe or unsanitary.
846.102 History
History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975);
1975 c. 41 s.
52;
1975 c. 199; Stats. 1975 s. 846.102;
1977 c. 304;
2011 a. 136.
846.103
846.103
Foreclosures of commercial properties and multifamily residences. 846.103(1)
(1) No foreclosure sale involving real property other than a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization may be held until the expiration of 6 months from the date when judgment is entered except a sale under
sub. (2). Notice of the time and place of sale shall be given under
ss. 815.31 and
846.16 and may be given within the 6-month period except that the first printing of the notice shall not be made less than 4 months after the date when judgment is entered.
846.103(2)
(2) If the mortgagor of real property other than a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization has agreed in writing at the time of the execution of the mortgage to the provisions of this section, the plaintiff in a foreclosure action of a mortgage, which mortgage is recorded subsequent to May 12, 1978, may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage, and to consent that the mortgagor, unless he or she abandons the property, may remain in possession of the mortgaged property and be entitled to all rents, issues and profits therefrom to the date of confirmation of the sale by the court. When the plaintiff so elects, judgment shall be entered as provided in this chapter, except that no judgment for deficiency may be ordered nor separately rendered against any party who is personally liable for the debt secured by the mortgage and the sale of the mortgaged premises shall be made upon the expiration of 3 months from the date when such judgment is entered. Notice of the time and place of sale shall be given under
ss. 815.31 and
846.16 and may be given within the 3-month period except that first printing of the notice shall not be made less than one month after the date when judgment is entered.
846.103 History
History: 1977 c. 304.
846.103 Annotation
The application of the reduced redemption period to a mortgage executed before enactment of ch. 304, laws of 1977, which created this section, would be an unconstitutional impairment of contract. Burke v. E. L. C. Investors, Inc.
110 Wis. 2d 406,
329 N.W.2d 259 (Ct. App. 1982).
846.103 Annotation
"Personally liable for the debt secured by the mortgage" has the same meaning in ss. 846.103 (2) and 846.04. "Personally liable" is a term of art used to distinguish the borrower's liability, which is a personal obligation, from the mortgagor's liability, which is an obligation limited to the property used to secure the note debt. Bank Mutual v. S.J. Boyer Construction, Inc.
2010 WI 74,
326 Wis. 2d 521,
785 N.W.2d 462,
08-0912.
846.103 Annotation
A mortgagee who forecloses under the shortened redemption period under sub. (2) does not forfeit the right to obtain a judgment against a guarantor of payment even though it must waive its right to collect any deficiency from the debtor. Guarantors of payment are not members of the class of persons against whom a mortgagee must waive judgment when invoking sub. (2) because guarantors are not "personally liable for the debt secured by the mortgage." This phrase is used to distinguish the liability of a borrower on a debt, which is a personal obligation, from the liability of a mortgagor, which is an obligation limited to the property the mortgagor has put up as security for the debt. The phrase does not contemplate guarantors whose liability arises not from the debt but from a separate contract. Bank Mutual v. S.J. Boyer Construction, Inc.
2010 WI 74,
326 Wis. 2d 521,
785 N.W.2d 462,
08-0912.
846.11
846.11
Homestead, how sold. If any defendant appear and answer that any portion of the mortgaged premises is an exempt homestead the court shall ascertain whether such be the fact, and if so whether the part of the mortgaged premises not included in the exempt homestead can be sold separately therefrom without injury to the interests of the parties, and in that case shall direct in the judgment that the exempt homestead shall not be sold until all the other mortgaged lands have been sold.
846.11 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.11; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.11.
846.11 Annotation
This statute gives the option to the mortgagor to insist that when a mortgage covers both homestead and nonhomestead property, the nonhomestead property be sold first. That issue is irrelevant if the entire mortgaged property is homestead. Anchor Savings & Loan Association v. Week,
62 Wis. 2d 169,
213 N.W.2d 737 (1974).
846.11 Annotation
This section is inapplicable when separate mortgages cover homestead and nonhomestead property. Valley Bank v. Jennings,
198 Wis. 2d 857,
544 N.W.2d 243 (Ct. App. 1995),
94-3197.
846.11 Annotation
The Federal Farmers Home Administration is not subject to state exemption laws in the foreclosure of its mortgages. U.S. v. Einum,
821 F. Supp. 1283 (1993).
846.12
846.12
Interest; waste. The amount adjudged due shall draw interest at the rate provided to be paid on the mortgage debt, but shall not exceed the minimum rate prevailing immediately prior to the default on which the foreclosure is based, until the date of sale or payment, and all the installments which shall become due after the date of such judgment shall draw interest at the same rate from the time the same become due. The judgment may enjoin the defendants and all persons claiming under them from committing waste or doing any act that may impair the value of the mortgaged premises.
846.12 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.12; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.12.
846.13
846.13
Redemption from and satisfaction of judgment. The mortgagor, the mortgagor's heirs, personal representatives or assigns may redeem the mortgaged premises at any time before the sale by paying to the clerk of the court in which the judgment was rendered, or to the plaintiff, or any assignee thereof, the amount of such judgment, interest thereon and costs, and any costs subsequent to such judgment, and any taxes paid by the plaintiff subsequent to the judgment upon the mortgaged premises, with interest thereon from the date of payment, at the same rate. On payment to such clerk or on filing the receipt of the plaintiff or the plaintiff's assigns for such payment in the office of said clerk the clerk shall thereupon discharge such judgment, and a certificate of such discharge, duly recorded in the office of the register of deeds, shall discharge such mortgage of record to the extent of the sum so paid.
846.13 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.13; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.13;
1993 a. 486.
846.13 Cross-reference
Cross-reference: See s.
846.25, relative to discharge after foreclosure.
846.13 Annotation
A bankruptcy court reduction of a mortgage lien does not affect the payment required for redemption. Hobl v. Lord,
162 Wis. 2d 226,
470 N.W.2d 265 (1991).
846.13 Annotation
A circuit court has no authority to accept a plan of redemption that fails to provide for immediate, full payment. A mortgagor may only redeem the mortgaged property for the full amount of the foreclosure judgment, plus interest, costs, and taxes. M&I Marshall & Ilsley v. Kazim Investment, Inc.
2004 WI App 13,
269 Wis. 2d 479,
678 N.W.2d 479,
03-0404.
846.13 Annotation
Sale under this section means confirmation of the sale. That under
M&I a circuit court has no authority to accept a plan of redemption that fails to provide for immediate full payment does not contradict that fact. State Bank v. Sechen,
2005 WI App 253,
288 Wis. 2d 168,
707 N.W.2d 576,
05-0482.
846.13 Annotation
Someone must notify the court when a redeeming payment is made, but this section does not require that it be the mortgagor. By the plain language of the first sentence, redemption occurs upon payment. The second sentence does not mention redemption, does not give any suggestion that the receipt must be filed within any particular time limit, and does not state that filing the receipt is a necessary prerequisite for redemption to occur or that redemption is void if a receipt is not filed. Osterberg v. Lincoln State Bank,
2006 WI App 237,
297 Wis. 2d 30,
725 N.W.2d 634,
06-0068.
846.13 Annotation
This section does not apply to a junior lienholder. Section 846.15 specifically addresses junior lienholders. In practice, the "right to redeem" may be used loosely to include both a mortgagor's right to redeem under s. 846.13 and a junior lienholder's right under s 846.15 to pay the judgment and become subrogated to the plaintiff's rights in the judgment. However, when a mortgagor pays the plaintiff the amount of the judgment, the judgment is discharged and the mortgagor retains title. When a junior lienholder pays the plaintiff the amount of the judgment, the junior lienholder neither retains title, since it never had it, nor acquires title; rather, the junior lienholder acquires the rights the plaintiff has as a result of the judgment. JP Morgan Chase Bank, NA v. Green,
2008 WI App 78,
311 Wis. 2d 715,
753 N.W.2d 536,
07-1753.
846.13 Annotation
A circuit court could reasonably exercise its discretion to adjourn a scheduled confirmation hearing to allow a mortgagor additional time to make a promised redemption payment. However, it would not be an misuse of discretion for a court to decline such a request and proceed to address the only issue relevant to a confirmation hearing — whether the sale at public auction should be confirmed. A mortgagor who has the ability and desire to redeem must make payment before the commencement of a properly scheduled confirmation hearing in order to avoid the risk of losing the opportunity to redeem as permitted under this section. Harbor Credit Union v. Samp,
2011 WI App 40,
332 Wis. 2d 214,
796 N.W.2d 813,
10-0974.
846.14
846.14
Redemption of part. In case the mortgagor, the mortgagor's heirs, representatives or assigns shall desire to pay a portion of such judgment, taxes, interest and costs, so as to relieve any distinct lot or parcel of the premises which can be sold separately under such judgment from the lien thereof and of such mortgage thereon, the court, on application of such person and on notice to the parties to the action, may, if the amount to be paid therefor is not agreed upon, ascertain and adjudge the proportion of such judgment, taxes, interest and costs to be paid for the purpose aforesaid; and when the amount so adjudged shall be paid as aforesaid it shall relieve such distinct lot or parcel from such judgment and the lien of such mortgage thereon and shall satisfy such judgment to the amount so paid. Any heir, devisee, grantee or assignee of the mortgagor, owning an undivided interest in the mortgaged premises, subject to the lien of the mortgage, may redeem such undivided interest from such judgment and the lien of the mortgage thereon by paying as aforesaid a sum that will bear the same proportion to the whole of such judgment, taxes, costs and interest as the interest proposed to be redeemed bears to the whole of the mortgaged premises.
846.14 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.14; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.14;
1993 a. 486.
846.15
846.15
Plaintiff's rights acquired by junior lienor. Any person having a junior lien upon the mortgaged premises or any part thereof or interest therein, may, at any time before such sale, pay to the clerk of court, or the plaintiff or the plaintiff's assignee, the amount of such judgment, taxes, interest and costs, and costs subsequent to judgment, and shall thereupon be subrogated to all the rights of the plaintiff as to such judgment.
846.15 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.15; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.15;
1993 a. 486.
846.16
846.16
Notice and report of sale. 846.16(1)
(1) The sheriff or referee who makes sale of mortgaged premises, under a judgment therefor, shall give notice of the time and place of sale in the manner provided by law for the sale of real estate upon execution or in such other manner as the court shall in the judgment direct; where the department of veterans affairs is also a party in the foreclosure action, the judgment shall direct that notice of sale be given by registered mail, return receipt requested, to the department at Madison, Wisconsin, at least 3 weeks prior to the date of sale, but such requirement does not affect any other provision as to giving notice of sale. The sheriff or referee shall, within 10 days thereafter, file with the clerk of the court a report of the sale, and shall also immediately after the sale first deduct any fee due under
s. 77.22 (1); then deposit that fee, a return under
s. 77.22 and the deed with the clerk of the court for transmittal to the register of deeds; then deduct the costs and expenses of the sale, unless the court orders otherwise, and then deposit with the clerk of the court the proceeds of the sale ordered by the court. The sheriff may accept from the purchaser at such sale as a deposit or down payment upon the same not less than $100, in which case such amount shall be so deposited with the clerk of the court as above provided, and the balance of the sale price shall be paid to the clerk by the purchaser at such sale upon the confirmation thereof. If the highest bid is less than $100, the whole amount thereof shall be so deposited.
846.16(2)
(2) If the judgment creditor is the purchaser the judgment creditor may give his or her receipt to the sheriff or referee for any sum not exceeding the judgment creditor's judgment and such receipt shall be deemed a down payment, but in every case the purchaser shall pay the cost of sale; and if the sum due the creditor is less than the purchase price, the creditor shall pay the difference at the time of sale.
846.16 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.16; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.16;
1989 a. 31;
1993 a. 486.
846.162
846.162
Disposition of surplus. If there shall be any surplus paid into court by the sheriff or referee, any party to the action or any person not a party who had a lien on the mortgaged premises at the time of sale, may file with the clerk of court into which the surplus was paid, a notice stating that the party or person is entitled to such surplus money or some part thereof, together with the nature and extent of the party's or person's claim. The court shall determine the rights of all persons in such surplus fund by reference or by testimony taken in open court, but no such hearing shall be had in court or before a referee except upon 8 days' notice to all persons that have appeared in the action or filed notice of claim to such surplus money. If any such claimant shall not have appeared by attorney, notice of such hearing may be served by mail directed to the claimant at the place of the claimant's residence as stated in the claimant's notice of claim.
846.162 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.162; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.162;
1993 a. 486.
846.162 Annotation
This section is procedural. It creates no substantive rights. First Wisconsin Trust Co. v. Rosen,
143 Wis. 2d 468,
422 N.W.2d 128 (Ct. App. 1988).
846.162 Annotation
A mortgage covenant to pay taxes expires when the mortgage lien is extinguished upon confirmation of the sheriff's sale. Taxes accruing after confirmation cannot be recovered from a surplus in sale proceeds. Harvest Savings Banking v. ROI Investments,
209 Wis. 2d 586,
563 N.W.2d 579 (Ct. App. 1997),
96-0998.
846.162 Annotation
This section does not apply to a junior lienholder. Section 846.15 specifically addresses junior lienholders. In practice, the "right to redeem" may be used loosely to include both a mortgagor's right to redeem under s. 846.13 and a junior lienholder's right under s 846.15 to pay the judgment and become subrogated to the plaintiff's rights in the judgment. However, when a mortgagor pays the plaintiff the amount of the judgment, the judgment is discharged and the mortgagor retains title. When a junior lienholder pays the plaintiff the amount of the judgment, the junior lienholder neither retains title, since it never had it, nor acquires title; rather, the junior lienholder acquires the rights the plaintiff has as a result of the judgment. JP Morgan Chase Bank, NA v. Green,
2008 WI App 78,
311 Wis. 2d 715,
753 N.W.2d 536,
07-1753.
846.165
846.165
Application for confirmation of sale and for deficiency judgment. 846.165(1)(1) No sale on a judgment of mortgage foreclosure shall be confirmed unless 5 days' notice has been given to all parties that have appeared in the action. Such notice shall be given either personally or by registered mail directed to the last-known post-office address, mailed at least 5 days prior to the date when the motion for confirmation is to be heard, if any post-office address is known; if not known, mailing may be dispensed with but an affidavit shall be filed with the court stating that the address is not known, and the notice shall state, in addition to other matter required by law, the amount of the judgment, the amount realized upon the sale, the amount for which personal judgment will be sought against the several parties naming them, and the time and place of hearing.
846.165(2)
(2) In case the mortgaged premises sell for less than the amount due and to become due on the mortgage debt and costs of sale, there shall be no presumption that such premises sold for their fair value and no sale shall be confirmed and judgment for deficiency rendered, until the court is satisfied that the fair value of the premises sold has been credited on the mortgage debt, interest and costs.
846.165 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.165; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.165.
846.165 Cross-reference
Cross-reference: For tardy confirmation of sale, after 6 years, see s.
846.18.
846.165 Annotation
The trial court should determine "fair value" under sub. (2) even though the bid does not shock the court's conscience. First Wisconsin National Bank of Oshkosh v. KSW Inv.
71 Wis. 2d 359,
238 N.W.2d 123 (1976).
846.165 Annotation
The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings and Loan Asso. v. Barkwood Landscaping Co., Inc.
93 Wis. 2d 190,
286 N.W.2d 581 (1980).
846.165 Annotation
An appeal from an order confirming sale does not enable the appellant to challenge a judgment of foreclosure. Shuput v. Lauer,
109 Wis. 2d 164,
325 N.W.2d 321 (1982).
846.165 Annotation
There is no statutory requirement that sale proceeds be applied first to the portion of the debt that is guaranteed. Crown Life Ins. Co. v. LaBonte,
111 Wis. 2d 26,
330 N.W.2d 201 (1983).
846.165 Annotation
"Fair value" under sub. (2) is determined by the property's sale value. The court may consider costs of selling, holding, or carrying the property only to the extent that they affect the sale value. First Financial Savings Assoc. v. Spranger,
156 Wis. 2d 440,
456 N.W.2d 897 (Ct. App. 1990).
846.165 Annotation
The purchaser at a foreclosure sale has a right to notice of when the sale has been confirmed, when the mortgagor's redemption period ends, and when the 10-day payment period under s. 846.17 expires. GMAC Mortgage Corp. v. Gisvold,
215 Wis. 2d 459,
572 N.W.2d 466 (1998),
96-1663.
846.165 Annotation
Because s. 703.10 (6) prohibits condominium bylaws from affecting the transfer of title to a condominium unit, a bylaw prohibiting the sale of any unit to an owner who would not reside in the unit could not be applied to prevent the confirmation of a foreclosure sale to the high bidder who admitted he would not occupy the premises. Also, the potential failure to occupy the unit had no recognized legal relationship to the confirmation of the sheriff's sale and the transfer of title. Bankers Trust Company of California, N.A. v. Bregant,
2003 WI App 86,
261 Wis. 2d 855,
661 N.W.2d 498,
02-2085.
846.165 Annotation
Under sub. (2), when a creditor seeks a deficiency judgment, there is no presumption that the property sold for fair value. From that, it follows that when the mortgagee does not seek a deficiency judgment, there is a presumption. The statute does not eliminate the requirement that the court find fair value. A tax assessment, like an appraisal, can be viewed as a measure of fair value. Each case must be considered on its merits. Bank of New York v. Mills,
2004 WI App 60,
270 Wis. 2d 790,
678 N.W.2d 332,
03-1339.
846.165 Annotation
This section does not preclude a purchaser from obtaining a confirmation hearing when the mortgagee's application for confirmation has been withdrawn. This affords the purchaser an opportunity to have the court decide whether it is entitled to transfer of the property under applicable law, and does not undermine the rights of the lienholders and mortgagor to object to certification as provided by law. JP Morgan Chase Bank, NA v. Green,
2008 WI App 78,
311 Wis. 2d 715,
753 N.W.2d 536,
07-1753.
