LRB-4036/4
RPN/PJK/RAC:cs:pg
2001 - 2002 LEGISLATURE
October 26, 2001 - Introduced by Senators Moen, Breske, S. Fitzgerald, Risser,
Cowles, Wirch, Hansen, Grobschmidt, Baumgart, Darling, Welch, Schultz,
Rosenzweig
and Roessler, cosponsored by Representatives Musser, Pocan,
Urban, Ryba, Gronemus, Ladwig, Freese, Suder, Turner, Lassa, Gundrum, J.
Lehman, Petrowski, Riley, Kreuser, Ott, Sykora, Grothman, Owens, Nass,
Colon, Gunderson, Miller, Vrakas, La Fave
and Seratti. Referred to
Committee on Health, Utilities, Veterans and Military Affairs.
SB297,1,3 1An Act to amend 45.53 (title); and to create 21.75 of the statutes; relating to:
2the rights of persons who are called into active state service and providing
3penalties.
Analysis by the Legislative Reference Bureau
Under current federal law, persons who are in active service in the U.S. armed
forces and their dependents are given certain protections related to lawsuits, leases,
obligations and contracts for the period that they are in active service. Generally,
these protections are provided under federal law only if the service in the military
materially affects the armed forces member's ability to meet the obligation. In most
cases, the armed forces member may waive the protections afforded by the law if he
or she does so in writing after entering the armed forces.
Under federal law, all interest on obligations incurred before entry into the
armed forces is capped at six percent for the duration of the military service. The
federal law tolls the running of all statutes of limitations during the period of active
service with respect to civil and administrative proceedings involving the service
member as either a plaintiff or a defendant. The federal law stays all civil actions
affecting the service member, including actions to repossess property and
garnishment actions. Under the federal law, if in a court action a default judgment
is requested, the person requesting the default judgment must submit an affidavit
regarding the military status of the opposing party, and the court is required to
appoint an attorney for the other party if he or she may be in military service. That
attorney may seek a stay of the proceedings under federal law. Federal law also

allows the reopening of a default judgment if that judgment was entered against a
service member during or with 30 days after his or her period of active service.
Under federal law, members of the U.S. armed forces and their dependents are
protected from eviction from their dwelling if the monthly rent does not exceed
$1200. In addition, the federal law allows a service member to terminate a lease
occupied as a dwelling or for professional, business, or agricultural purposes if the
lease was entered into before the service member was called into active service. In
this situation, the service member does not need to be materially affected to
terminate the lease. The federal law allows a court to stay the enforcement of
installment contracts, storage liens, and mortgage obligations.
This bill provides these same benefits to persons who are called into state
service either as part of the state national guard or as part of the state militia.
For further information see the state and local 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:
SB297, s. 1 1Section 1. 21.75 of the statutes is created to read:
SB297,2,3 221.75 Soldiers' and sailors' relief act; state service. (1) Definitions. In
3this section:
SB297,2,84 (a) "Active state service" means active service for 30 days or more in the
5national guard or the state defense force under an order of the governor issued under
6this chapter or active service for 30 days or more in the national guard under 32 USC
7502
(f) or 506 that is not considered to be "service in the uniformed services," as
8defined in 38 USC 4303 (13).
SB297,2,99 (b) "Court" means a court of record.
SB297,2,1010 (c) "Department" means the department of military affairs.
SB297,2,1211 (d) "Service member" means a person who may be called into active state
12service.
SB297,3,213 (e) "Period of active state service" means the period beginning on the date on
14which the service member receives an order to enter active state service and ending

1on the date of the service member's release from active state service or death while
2in active state service.
SB297,3,7 3(2) Protection of persons secondarily liable. (a) If this section results in the
4stay or suspension of any obligation, liability, court action, order, writ, or judgment,
5the court that issued the stay or suspension may grant the same remedy to sureties,
6guarantors, endorsers, and others subject to the obligation, liability, court action,
7order, writ, or judgment.
SB297,3,138 (b) If a service member is the principal on a criminal bail bond and his or her
9active state service causes the surety upon the bond to be prevented from enforcing
10the attendance of the service member at court, the court shall not enforce the
11provisions of the bond during the service member's period of active state service and
12may either during or after the period of active service discharge the surety and
13exonerate the bail.
SB297,3,2214 (c) A surety, guarantor, endorser, or other person subject to the obligation,
15liability, court action, order, writ, or judgment under par. (a) or (b) may waive in
16writing the rights afforded by this subsection, except that the waiver is not valid
17unless the waiver is executed as an instrument separate from the obligation, liability,
18court action, order, writ, or judgment. The waiver under this paragraph is not valid
19after the beginning of the period of active state service if executed by a service
20member who subsequently is called into active state service. The waiver under this
21paragraph is not valid if executed by a dependent of a service member unless the
22waiver is executed during the period of active state service.
SB297,4,3 23(3) Effect on rights under a written agreement. This section does not prevent
24the modification, termination, or cancelation of any contract, lease, bailment, or
25secured obligation, or the repossession, retention, foreclosure, sale, or forfeiture of

1property that is security for any obligation or which has been purchased or received
2under a contract, lease, or bailment under a written agreement of the parties if that
3agreement is executed during or after the period of active state service.
SB297,4,7 4(4) Exercise of rights. No person may use the fact that a service member has
5applied for, or received, a stay, postponement, or suspension in the payment of a tax,
6fine, penalty, insurance premium, or other civil obligation or liability as the basis for
7doing any of the following:
SB297,4,108 (a) If the person is a lender, determining that the service member is unable to
9pay any such civil obligation or liability in accordance with the terms of the obligation
10or liability.
SB297,4,1411 (b) If the person is a creditor, denying or revoking any credit extended to the
12service member, changing the terms of a credit agreement to which the service
13member is a party, or refusing to grant credit to the service member in substantially
14the amount or on substantially the terms requested by the service member.
SB297,4,1715 (c) If the person is in the business of assembling or evaluating consumer credit
16information, making an adverse report on the creditworthiness of the service
17member.
SB297,4,1818 (d) If the person is an insurer, refusing to insure the service member.
SB297,5,10 19(5) Default judgments, affidavits, and attorney representation. (a) If, in any
20court action, there is a default of any appearance of the defendant, the plaintiff, when
21requesting a default judgment, shall file with the court an affidavit setting forth facts
22showing that the defendant is not in active state service. If the plaintiff is unable to
23file such an affidavit, the plaintiff shall, when requesting a default judgment, file an
24affidavit setting forth that the defendant is in active state service or that the plaintiff
25is unable to determine if the defendant is in active state service. If an affidavit is not

1filed showing that the defendant is not in active state service, a default judgment
2may not be entered without a court order. A court may not order the entry of a default
3judgment if the defendant is in active state service until the court has appointed an
4attorney to represent the defendant and protect the defendant's interests. Unless
5the court determines that the defendant is not in active state service, the court may
6require, as a condition of entering judgment, the plaintiff to file a bond to indemnify
7the defendant, if he or she is in active state service, against any loss or damage
8resulting from the judgment if any part of the judgment is later set aside. The court
9may make any other order as may be necessary to protect the interests of the
10defendant under this section.
SB297,5,1511 (b) If a judgment is rendered in a court action against a service member during
12the period of active state service or within 30 days after the end of that period of active
13state service, and it appears that the service member was prejudiced in making a
14defense by reason of his or her active state service, the court may reopen that
15judgment if all of the following conditions exist:
SB297,5,1716 1. The service member moves the court to reopen the judgment within 90 days
17after his or her period of active state service ends.
SB297,5,1818 2. The service member has a meritorious or legal defense to the action.
SB297,5,2119 (c) Vacating, setting aside, or reversing a judgment under this subsection does
20not impair any right or title acquired by a bona fide purchaser for value under the
21judgment.
SB297,5,2422 (d) Any person who shall make or use an affidavit required under this
23subsection that he or she knows to be false shall be fined not more than $10,000 or
24imprisoned for not more than 9 months or both.
SB297,6,7
1(6) Stay of action. During any stage of a court action in which a service
2member in active state service is involved as a party, or within 60 days after the end
3of the period of active state service, the court in which the action is pending may on
4its own motion, and shall, on application of the service member or some person acting
5on behalf of the service member, stay the action unless the court determines that the
6service member's ability to represent his or her interest in the action is not materially
7affected by reason of his or her active state service.
SB297,6,16 8(7) Stay or vacation of executions or attachments. In any court action that
9is commenced against a service member before or after entering active state service,
10or within 60 days after the period of active state service ends, the court may on its
11own motion, and shall, on application of the service member or some person acting
12on behalf of the service member, stay the execution of any judgment or order entered
13against the service member, or stay or vacate any attachment or garnishment
14regarding the service member's property, unless the court determines that the
15service member's ability to comply with the judgment or order is not materially
16affected by reason of his or her active state service.
SB297,6,20 17(8) Duration and terms of stays. (a) Any stay of any action, attachment,
18execution, or garnishment under this section may be ordered for the period of the
19active state service and 3 months after that period has ended, or for any part of that
20time.
SB297,6,2321 (b) Any stay under par. (a) may be subject to such terms as may be just,
22including the payment of installments in an amount and at the times that the court
23determines.
SB297,6,2524 (c) If the service member is a codefendant in an action, the plaintiff may, by
25leave of the court, proceed against the other codefendants.
SB297,7,7
1(9) Statutes of limitations. The period of active state service may not be
2included in computing any period for the bringing of any action or proceeding in any
3court or before any public agency, as defined in s. 36.54 (2) (a) 2., by or against a
4person in active state service or by or against his or her heirs, executors,
5administrators or assigns, whether the cause of action or proceeding or the right to
6bring the action or proceeding accrued before or during the period of active state
7service.
SB297,7,17 8(10) Maximum interest rate. No obligation or liability bearing interest at a rate
9in excess of 6 % per year incurred by a service member in active state service before
10his or her entry into that service may, during any part of the period of active state
11service, bear interest in excess of 6 % per year except by court order. If, upon
12application by an obligee, a court determines that the ability of the service member
13to pay interest upon the obligation or liability at a rate in excess of 6 % per year is
14not materially affected by reason of his or her active state service, the court may
15make any order that is just. In this subsection, "interest" includes service charges,
16renewal charges, fees, or other charges, other than insurance, in respect to the
17obligation or liability.
SB297,7,22 18(11) Eviction stay. (a) No eviction may be made during the period of active
19state service in respect to any premises for which the agreed rent does not exceed
20$1,200 per month, occupied chiefly for dwelling purposes by the spouse, children, or
21other dependents of a service member who is in active state service, except upon
22order of a court in an action affecting the right of possession.
SB297,8,523 (b) In an action for eviction under par. (a), the court may on its own motion, and
24shall, on application of the service member or some person acting on behalf of the
25service member, stay the proceedings for not longer than 3 months unless the court

1determines that the ability of the tenant to pay the agreed rent is not materially
2affected by the active state service. The court may make any other order in the
3eviction action as it considers necessary and just. If a stay or order is issued under
4this paragraph, the court may, upon the request of the owner of the premises, make
5any other order as may be applicable to conserve the interests of all of the parties.
SB297,8,86 (c) Any person who knowingly takes part in any eviction prohibited under par.
7(a) except as provided in this subsection, or attempts to do so, shall be fined not more
8than $10,000 or imprisoned not more than 9 months or both.
SB297,8,13 9(12) Action to enforce obligation secured by mortgage. (a) In this
10subsection, "obligation" means an obligation of a service member in active state
11service that was incurred before the service member's period of active state service
12began and that is secured by a mortgage, deed of trust, or other security in the nature
13of a mortgage on real or personal property that is owned by the service member.
SB297,8,2114 (b) If a court action against a service member is commenced during the service
15member's period of active state service to enforce an obligation for nonpayment of
16any sum due or for any other breach of terms occurring before or during the service
17member's period of active state service, the court shall hold a hearing on the matter.
18Unless the court determines that the service member's ability to comply with the
19terms of the obligation is not materially affected by reason of his or her active state
20service, the court on its own motion may, or upon application of the service member
21or another person on his or her behalf shall, do any of the following:
SB297,8,2222 1. Stay the action as provided in this section.
SB297,8,2423 2. Make such other disposition of the case as the court determines is equitable
24to the interests of all parties.
SB297,9,7
1(c) 1. Notwithstanding the times provided in ss. 846.10, 846.101, 846.102, and
2846.103 for sales of real property, no foreclosure, sale, or seizure of property for
3nonpayment of any sum due or for any other breach of terms is valid if it occurs
4during or within 3 months after the service member's period of active state service,
5unless the court ordered the foreclosure, sale, or seizure of property before the
6beginning of the service member's period of active state service and approves the
7foreclosure, sale, or seizure after it occurs.
SB297,9,108 2. Any person who knowingly causes a foreclosure, sale, or seizure of property
9that is invalid under subd. 1. shall be fined not more than $10,000 or imprisoned for
10not more than 9 months or both.
SB297,9,17 11(13) Personal property contracts. When an action to resume possession of
12personal property, or to rescind or terminate a contract for the purchase of personal
13property, has been stayed under this section, the court may appoint 3 disinterested
14persons to appraise the property. Based upon the report of the appraisers, and unless
15undue hardship would result to the dependents of the service member in active state
16service, the court may order that a sum be paid to the service member as a condition
17of resuming possession of the property or rescinding or terminating the contract.
SB297,9,19 18(14) Termination of leases by lessees. (a) This subsection applies to a lease
19to which all of the following apply:
SB297,9,2120 1. The lease was executed by or on behalf of a service member who entered
21active state service after the lease was executed.
SB297,9,2422 2. The lease covers premises that are occupied for dwelling, professional,
23business, agricultural, or similar purposes by the service member, or the service
24member and his or her dependents.
SB297,10,5
1(b) A lease to which this subsection applies may be terminated by the service
2member at any time after the beginning of the service member's period of active state
3service by giving notice in writing by personal delivery or first class mail to the
4landlord or the person who has been receiving rent or managing the property as the
5landlord's agent.
SB297,10,96 (c) If the lease provides for monthly payment of rent, termination shall be
7effective 30 days after the first date on which the next rental payment is due and
8payable after the date on which the notice is delivered or mailed. In any other case,
9all of the following apply:
SB297,10,1110 1. Termination shall be effective on the last day of the month after the month
11in which the notice was delivered or mailed.
SB297,10,1312 2. Any unpaid rent for the period preceding termination shall be computed on
13a prorated basis.
SB297,10,1514 3. The landlord or the landlord's agent shall refund to the service member any
15rent paid in advance that applies to the period after termination.
SB297,10,1916 (d) Upon application of a landlord after receiving notice under this subsection
17and before the lease termination date provided for in this subsection, a court may
18make such modifications to or restrictions on the relief granted in this subsection as
19the court determines are appropriate under the circumstances.
SB297,11,220 (e) No person may knowingly seize or retain personal property belonging to a
21service member who lawfully terminates a lease under this subsection, or in any
22manner interfere with the removal of the service member's personal property from
23the premises covered by the lease, for the purpose of subjecting the personal property
24to a claim for rent accruing after the termination of the lease. Any person who

1violates this paragraph shall be fined not more than $10,000 or imprisoned for not
2more than 9 months or both.
SB297,11,43 (f) Section 704.29 does not apply to the termination of a lease as provided in this
4subsection.
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