Amendment SSA1-SB621

LRBs0247/1

KRP:emw&ahe

2017 - 2018 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 621

January 17, 2018 - Offered by Senator Olsen.

SB621-SSA1,2,2 An Act to repeal 846.16 (2m) (intro.) (except 846.16 (2m) (title)); to renumber 846.165 (1); to renumber and amend 846.16 (1) (b), 846.16 (1) (c), 846.16 (3m) (a) (intro.), 1. and 2., 846.16 (3m) (b) and 846.165 (2); 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), 846.16 (1) (title), 846.16 (1) (a), 846.16 (2m) (b) 2. a., 846.16 (4) (title), 846.16 (4) (a), 846.16 (4) (b) and 846.16 (4) (c); and to create 846.16 (1) (bm), 846.16 (1g) (title), 846.16 (1g) (a) (title), 846.16 (1g) (b), 846.16 (1r) (title), 846.16 (1r) (b) (title), 846.16 (1r) (c), 846.16 (2m) (a) (title), 846.16 (2m) (am), 846.16 (2m) (b) (title), 846.16 (2m) (b) 3. and 846.16 (2m) (c) (title) of the statutes; relating to: authorizing counties to conduct foreclosure sales using an Internet-based auction.

Analysis by the Legislative Reference Bureau

This substitute amendment modifies 2017 Assembly Bill 690 (the bill) to reflect changes in the law as a result of the enactment of 2017 Wisconsin Act 104.

The substitute amendment also requires all of the following:

1. If the sheriff or referee engages a third party to conduct Internet-based auctions in a county, the third party must be registered as an auctioneer by the Department of Safety and Professional Services.

2. Notice of sale of an Internet-based auction must describe any lien or other encumbrance on the mortgaged premises that has priority over the mortgage that is the subject of the foreclosure action (priority liens).

3. The person conducting an Internet-based auction must, on the Internet site where the Internet-based auction is conducted, provide any potential bidder with a conspicuous statement identifying the priority liens.

For further information, see the analysis for the bill.

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

SB621-SSA1,1 Section 1. 846.10 (2) (a) 1. of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,2,11 846.10 (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-SSA1,2 Section 2. 846.10 (2) (a) 2. a. of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,3,7 846.10 (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-SSA1,3 Section 3. 846.10 (2) (a) 2. b. of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,3,19 846.10 (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-SSA1,4 Section 4. 846.101 (2) (b) of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,4,2 846.101 (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-SSA1,5 Section 5. 846.101 (2) (c) 1. of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,4,9 846.101 (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-SSA1,6 Section 6. 846.101 (2) (c) 2. of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,4,19 846.101 (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-SSA1,7 Section 7. 846.102 (3) (a) 1. of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,5,2 846.102 (3) (a) 1. Hold a sale of the mortgaged premises and have the sale confirmed under s. 846.165 846.16 (2m). 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-SSA1,8 Section 8. 846.103 (1) of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,5,12 846.103 (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-SSA1,9 Section 9. 846.103 (2) of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,6,8 846.103 (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 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-SSA1,10 Section 10. 846.16 (title) of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,6,11 846.16 (title) Notice of sale; sale; confirmation; transfer.

SB621-SSA1,11 Section 11. 846.16 (1) (title) of the statutes, as created by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,6,14 846.16 (1) (title) Notice of sale and sale.

SB621-SSA1,12 Section 12. 846.16 (1) (a) of the statutes, as affected by 2017 Wisconsin Act 104, is amended to read:

SB621-SSA1,6,23 846.16 (1) (a) Notice of in-person sale. The Except as provided in par. (bm), 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. The sheriff or referee shall include in the notice of sale the street address, if any, of the real estate to be sold and the sum of the judgment. If

SB621-SSA1,7,4 (cm) Notice to department of veterans affairs. In addition to providing notice of sale under par. (a) or (bm), 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. Upon the.

SB621-SSA1,7,9 (1r) (a) Execution of deed. After a sale of the mortgaged premises under sub. (1g) and upon compliance with its 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 includes sets forth each parcel of land sold to the purchaser and the purchase price paid for each parcel.

SB621-SSA1,13 Section 13. 846.16 (1) (b) of the statutes, as affected by 2017 Wisconsin Act 104, is renumbered 846.16 (1r) (b), and 846.16 (1r) (b) (intro.) and 2. a., as renumbered, are amended to read:

SB621-SSA1,7,14 846.16 (1r) (b) (intro.) No later than 10 days after the a sale of the mortgaged premises under sub. (1g), the sheriff or referee shall do all of the following:

SB621-SSA1,7,15 2. a. The deed to the mortgaged premises executed under par. (a).

SB621-SSA1,14 Section 14. 846.16 (1) (bm) of the statutes is created to read:

SB621-SSA1,7,19 846.16 (1) (bm) Notice of Internet-based sale. If a sale is conducted under sub. (1g) (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-SSA1,8,2 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-SSA1,8,3 2. The notice also shall include all of the following information:

SB621-SSA1,8,4 a. A statement that the sale will be conducted using an Internet-based auction.

SB621-SSA1,8,6 b. The address of the Internet site where the Internet-based auction will be conducted.

SB621-SSA1,8,8 c. The time period during which bids for the mortgaged premises may be submitted.

SB621-SSA1,8,12 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-SSA1,8,15 e. A description of the terms of sale that apply to the Internet-based auction, including a description of any lien or other encumbrance on the mortgaged premises that has priority over the mortgage that is the subject of the foreclosure action.

SB621-SSA1,15 Section 15. 846.16 (1) (c) of the statutes, as affected by 2017 Wisconsin Act 104, is renumbered 846.16 (1g) (a), and 846.16 (1g) (a) 1. and 2., as renumbered, are amended to read:

SB621-SSA1,9,2 846.16 (1g) (a) 1. Except as provided under subd. 2. and this subdivision, the sheriff or referee may not accept less than $100 as a deposit or down payment from the purchaser at a sale of mortgaged premises. The sheriff or referee shall deliver the amount of the deposit or down payment to the clerk of court as provided in par. (b) sub. (1r) (b) 2. b., and the purchaser shall pay the balance of the sale purchase price to the clerk of court upon the confirmation of the sale as provided in sub. (2m) (b). If the highest bid is less than $100, the purchaser shall give the bid amount as a deposit or down payment, and the sheriff or referee shall deliver the entire amount to the clerk of court.

SB621-SSA1,9,9 2. If the judgment creditor is the purchaser at the a sale of the mortgaged premises, the judgment creditor may give the judgment creditor's receipt to the sheriff or referee for any sum not exceeding the sum due to the judgment creditor's judgment creditor. The judgment creditor's receipt is considered a down payment. If the judgment creditor is the purchaser and the sum due to the judgment 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-SSA1,16 Section 16. 846.16 (1g) (title) of the statutes is created to read:

SB621-SSA1,9,11 846.16 (1g) (title) Sale of mortgaged premises.

SB621-SSA1,17 Section 17. 846.16 (1g) (a) (title) of the statutes is created to read:

SB621-SSA1,9,14 846.16 (1g) (a) (title) Payment of purchase price and costs of sale; deposit or down payment.

SB621-SSA1,18 Section 18. 846.16 (1g) (b) of the statutes is created to read:

SB621-SSA1,9,20 846.16 (1g) (b) Internet-based sale. 1. A county may enact an ordinance that requires the sheriff or referee to conduct, or to engage an auctioneer registered under ch. 480 to conduct, sales of mortgaged premises in the county using an Internet-based auction. If county enacts such an ordinance, all sales of mortgaged premises in the county shall be conducted using Internet-based auctions.

SB621-SSA1,9,24 2. If a sale is conducted using an Internet-based auction, the person conducting the sale may accept payment of any amounts 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-SSA1,10,4 3. If a sale is conducted using an Internet-based auction, the person conducting the sale shall, on the Internet site on which the Internet-based auction is conducted, provide any potential bidder with a conspicuous statement identifying any lien or other encumbrance described in the notice under sub. (1) (bm) 2. e.