SB621: Bill Text

LRB-4650/2

KRP:klm&kjf

2017 - 2018 LEGISLATURE

2017 Senate BILL 621

December 7, 2017 - Introduced by Senators Olsen, Johnson, Carpenter and Cowles, cosponsored by Representatives Katsma, Goyke, Allen, Anderson, Ballweg, Berceau, Bowen, E. Brooks, R. Brooks, Brostoff, Considine, Crowley, Felzkowski, Fields, Hebl, Hutton, Knodl, Kooyenga, Kuglitsch, Kulp, Mursau, Ohnstad, Petersen, Pope, Riemer, Ripp, Rohrkaste, Sargent, Sinicki, Skowronski, Spiros, Spreitzer, Subeck, C. Taylor, Tusler, Wachs, Young and Zepnick. Referred to Committee on Insurance, Housing and Trade.

SB621,1,9 An Act to renumber 846.16 (3) and 846.165 (1); to renumber and amend 846.16 (1), 846.16 (2), 846.165 (2) and 846.17; to amend 846.10 (2) (a) 1., 846.10 (2) (a) 2. a., 846.10 (2) (a) 2. b., 846.101 (2) (b), 846.101 (2) (c) 1., 846.101 (2) (c) 2., 846.102 (3) (a) 1., 846.103 (1), 846.103 (2), 846.16 (title), 846.167 (2) (b) 2. a., 846.167 (3) and 846.17 (title); and to create 846.16 (1) (title), 846.16 (1) (b), 846.16 (2m) (title), 846.16 (2m) (a) (title), 846.16 (2m) (a) 1., 846.16 (2m) (a) 3., 846.16 (2m) (b), 846.16 (3) (title), 846.16 (3) (am), 846.16 (3) (bm), 846.16 (3) (c) (title) and 846.16 (3) (d) of the statutes; relating to: authorizing counties to conduct foreclosure sales using an Internet-based auction.

Analysis by the Legislative Reference Bureau

This bill authorizes a county to enact an ordinance that requires the sheriff or referee to conduct, or engage a third party to conduct, sales of foreclosed property in the county using an Internet-based auction.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB621,1 Section 1. 846.10 (2) (a) 1. of the statutes is amended to read:

SB621,2,8 846.10 (2) (a) 1. If the mortgage was executed before April 27, 2016, upon the expiration of 12 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and s. 846.16 (1) 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 the judgment is entered, and except that the sale of a farm shall not be made or advertised until the expiration of one year from the date when the judgment is entered.

SB621,2 Section 2. 846.10 (2) (a) 2. a. of the statutes is amended to read:

SB621,2,16 846.10 (2) (a) 2. a. Except as provided in subd. 2. b., upon the expiration of 6 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and s. 846.16 (1) 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 the judgment is entered, and except that the sale of a farm shall not be made or advertised until the expiration of 6 months from the date when the judgment is entered.

SB621,3 Section 3. 846.10 (2) (a) 2. b. of the statutes is amended to read:

SB621,3,6 846.10 (2) (a) 2. b. Upon motion of the mortgagor before judgment is entered, if the court finds that the mortgagor is attempting in good faith to sell the mortgaged premises and has entered into a listing agreement with a real estate broker licensed under ch. 452 to sell the mortgaged premises, upon the expiration of 8 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and s. 846.16 (1) and may be given within the 8-month period, except that the first printing of the notice shall not be made less than 6 months after the date when the judgment is entered, and except that the sale of a farm shall not be made or advertised until the expiration of 8 months from the date when the judgment is entered.

SB621,4 Section 4. 846.101 (2) (b) of the statutes is amended to read:

SB621,3,13 846.101 (2) (b) If the mortgage was executed before April 27, 2016, the sale of the mortgaged premises shall be made upon the expiration of 6 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and s. 846.16 (1) 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 the judgment is entered.

SB621,5 Section 5. 846.101 (2) (c) 1. of the statutes is amended to read:

SB621,3,19 846.101 (2) (c) 1. Except as provided in subd. 2., upon the expiration of 3 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and s. 846.16 (1) and may be given within the 3-month period, except that the first printing of the notice shall not be made less than one month after the date when the judgment is entered.

SB621,6 Section 6. 846.101 (2) (c) 2. of the statutes is amended to read:

SB621,4,3 846.101 (2) (c) 2. Upon motion of the mortgagor before judgment is entered, if the court finds that the mortgagor is attempting in good faith to sell the mortgaged premises and has entered into a listing agreement with a real estate broker licensed under ch. 452 to sell the mortgaged premises, upon the expiration of 5 months from the date when the judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and s. 846.16 (1) and may be given within the 5-month period, except that the first printing of the notice shall not be made less than 3 months after the date when the judgment is entered.

SB621,7 Section 7. 846.102 (3) (a) 1. of the statutes is amended to read:

SB621,4,9 846.102 (3) (a) 1. Hold a sale of the mortgaged premises and have the sale confirmed under s. 846.165 846.17. Any sale of the mortgaged premises may be held at any time after the expiration of 5 weeks from the date when the judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and s. 846.16 (1) and may be given at any time within the 12-month period.

SB621,8 Section 8. 846.103 (1) of the statutes is amended to read:

SB621,4,18 846.103 (1) No foreclosure sale involving real property other than a one-family 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 the 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 s. 846.16 (1) 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 the judgment is entered.

SB621,9 Section 9. 846.103 (2) of the statutes is amended to read:

SB621,5,13 846.103 (2) If the mortgagor of real property other than a one-family 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 that 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 premises 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 the judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and s. 846.16 (1) and may be given within the 3-month period, except that the first printing of the notice shall not be made less than one month after the date when the judgment is entered.

SB621,10 Section 10. 846.16 (title) of the statutes is amended to read:

SB621,5,16 846.16 (title) Notice and report of sale; sale of mortgaged premises; procedures after sale.

SB621,11 Section 11. 846.16 (1) (title) of the statutes is created to read:

SB621,5,18 846.16 (1) (title) Notice of sale.

SB621,12 Section 12. 846.16 (1) of the statutes is renumbered 846.16 (1) (a) and amended to read:

SB621,5,25 846.16 (1) (a) Notice of in-person sale. The Except as provided in par. (b), 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 as provided under s. 815.31 or in such other manner as the court shall in the judgment direct; where .

SB621,6,17 (c) Notice to department of veterans affairs. In addition to providing notice of sale under par. (a) or (b), if 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. Except as provided in sub. (3) and s. 846.167, 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.

SB621,13 Section 13. 846.16 (1) (b) of the statutes is created to read:

SB621,6,21 846.16 (1) (b) Notice of Internet-based sale. If a sale is conducted under sub. (2m) (b), the sheriff or referee who makes sale of mortgaged premises shall give notice of the time and place of sale as provided under par. (a), except as follows:

SB621,7,4 1. Section 815.31 (1) does not apply to the sale. The sheriff or referee shall publicly advertise the time and place of holding the sale by posting, at least 3 weeks prior to the date of the sale, a written notice describing the mortgaged premises to be sold with reasonable certainty in one public place in the city, village, or town where the mortgaged premises are located and, if the county where the mortgaged premises are located maintains an Internet site, on that Internet site. If the city, village, or town where the mortgaged premises are located maintains an Internet site, the city, village, or town may post the notice on that Internet site.

SB621,7,5 2. The notice shall include all of the following information:

SB621,7,6 a. A statement that the sale will be conducted using an Internet-based auction.

SB621,7,8 b. The address of the Internet site where the Internet-based auction will be conducted.

SB621,7,10 c. The time period during which bids for the mortgaged premises may be submitted.

SB621,7,14 d. Instructions on how the general public may observe the Internet-based auction and on how a person may participate in the auction, including any prerequisites to participation that may apply, or the address of an Internet site where those instructions are posted.

SB621,7,15 e. A description of the terms of sale that apply to the Internet-based auction.

SB621,14 Section 14. 846.16 (2) of the statutes is renumbered 846.16 (2m) (a) 2. and amended to read:

SB621,7,25 846.16 (2m) (a) 2. If the judgment creditor is the purchaser at a sale of mortgaged premises, the judgment creditor may give his or her the judgment creditor's receipt to the sheriff or referee for any sum not exceeding the amount of the judgment creditor's judgment and such. The receipt shall be deemed is considered a down payment, but in every case the purchaser shall pay the cost of sale; and if the sum due the creditor under subd. 1. If the judgment creditor is the purchaser and the sum due to the creditor is less than the purchase price, the judgment creditor shall pay the difference to the sheriff or referee at the time of sale.

SB621,15 Section 15. 846.16 (2m) (title) of the statutes is created to read:

SB621,8,2 846.16 (2m) (title) Sale of mortgaged premises.

SB621,16 Section 16. 846.16 (2m) (a) (title) of the statutes is created to read:

SB621,8,5 846.16 (2m) (a) (title) Payment of purchase price and costs of sale; deposit or down payment.

SB621,17 Section 17. 846.16 (2m) (a) 1. of the statutes is created to read:

SB621,8,15 846.16 (2m) (a) 1. The sheriff or referee may accept not less than $100 as a deposit or down payment from the purchaser at a sale of mortgaged premises. If the purchaser gives a deposit or down payment, the sheriff or referee shall deliver the amount of the deposit or down payment to the clerk of court as provided in sub. (3) (bm) or (c), and the purchaser shall pay the balance of the purchase price to the clerk of court upon the confirmation of the sale as provided in s. 846.17 (5). If the highest bid is less than $100 and the purchaser gives that amount as a deposit or down payment, the sheriff or referee shall deliver the whole amount of the deposit or down payment to the clerk of court.

SB621,18 Section 18. 846.16 (2m) (a) 3. of the statutes is created to read:

SB621,8,18 846.16 (2m) (a) 3. In all cases, the purchaser at a sale of mortgaged premises shall pay the costs of the sale.

SB621,19 Section 19. 846.16 (2m) (b) of the statutes is created to read:

SB621,8,24 846.16 (2m) (b) Internet-based sale. 1. A county may enact an ordinance that requires the sheriff or referee to conduct, or engage a 3rd party to conduct, sales of mortgaged premises in the county using an Internet-based auction. The sheriff or referee in a county that enacts such an ordinance shall conduct all sales of mortgaged premises in the county using Internet-based auctions.

SB621,9,5 2. If the sheriff or referee conducts a sale using an Internet-based auction, the sheriff or referee may accept payment of any amounts paid to the sheriff or referee under par. (a) by credit card, debit card, or other electronic payment method and may charge a surcharge to the payer to recover charges associated with accepting the electronic payment.

SB621,20 Section 20. 846.16 (3) (title) of the statutes is created to read:

SB621,9,7 846.16 (3) (title) Procedures after sale.

SB621,21 Section 21. 846.16 (3) of the statutes is renumbered 846.16 (3) (c).

SB621,22 Section 22. 846.16 (3) (am) of the statutes is created to read:

SB621,9,14 846.16 (3) (am) Execution of deed. After a sale of mortgaged premises under sub. (2m) and upon compliance with the terms of the sale, the sheriff or referee shall make and execute to the purchaser, the purchaser's assigns, or personal representatives a deed of the mortgaged premises sold that sets forth each parcel of land sold to the purchaser and the purchase price paid for each parcel.

SB621,23 Section 23. 846.16 (3) (bm) of the statutes is created to read:

SB621,9,18 846.16 (3) (bm) Deductions from proceeds; transmittals to clerk of court. Except as provided in par. (c) and s. 846.167, after a sale of mortgaged premises under sub. (2m), the sheriff or referee shall do all of the following:

SB621,9,20 1. No later than 10 days after the sale, file with the clerk of court a report of the sale.

SB621,9,24 2. Immediately after the sale, deduct any transfer fee due under s. 77.22 (1) and, upon compliance with the terms of the sale, deliver the transfer fee, a transfer return under s. 77.22, and the deed executed under par. (am) to the clerk of court for transmittal to the register of deeds.

SB621,10,3 3. Immediately after the sale, deduct the costs and expenses of the sale, unless the court orders otherwise, and deliver the proceeds of the sale ordered by the court to the clerk of court.

SB621,24 Section 24. 846.16 (3) (c) (title) of the statutes is created to read:

SB621,10,6 846.16 (3) (c) (title) Deductions from proceeds and transmittals to clerk of court in populous counties.

SB621,25 Section 25. 846.16 (3) (d) of the statutes is created to read:

SB621,10,10 846.16 (3) (d) Deed held until confirmation. The clerk of court shall hold a deed delivered to the clerk of court under par. (bm) 2. or (c) 2. a. until confirmation of the sale under s. 846.17.

SB621,26 Section 26. 846.165 (1) of the statutes is renumbered 846.165.

SB621,27 Section 27. 846.165 (2) of the statutes is renumbered 846.17 (1) and amended to read:

SB621,10,20 846.17 (1) Determination of fair value of mortgaged premises. In case the If mortgaged premises sell for less than the amount due and to become due on the mortgage debt and costs of sale, there shall be is no presumption that such the mortgaged premises sold for their fair value, and no sale shall be confirmed and the court may not confirm the sale or render a judgment for deficiency rendered, until the court is satisfied that the fair value of the mortgaged premises sold has been credited on the mortgage debt, interest, and costs.

SB621,28 Section 28. 846.167 (2) (b) 2. a. of the statutes is amended to read: