AB390: Bill Text

AB390,4,25 (o) "Secured obligation" means an obligation the payment or performance of which is secured by a security interest.

AB390,5,4 (p) "Security instrument" means an agreement, however denominated, that creates or provides for an interest in real property to secure payment or performance of an obligation, whether or not it also creates or provides for a lien on personal property.

AB390,5,6 (q) "Security interest" means an interest in real property created by a security instrument.

AB390,5,8 (r) "Sign" means, with present intent to authenticate or adopt a document, any of the following:

AB390,5,9 1. To execute or adopt a tangible symbol.

AB390,5,11 2. To attach to or logically associate with the document an electronic sound, symbol, or process.

AB390,5,14 (s) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

AB390,5,17 (t) "Submit for recording" means to deliver, with required fees and taxes, a document sufficient to be recorded under this section, to the office of the register of deeds under s. 59.43.

AB390,5,19 (u) "Title insurance company" means an organization authorized to conduct the business of insuring titles to real property in this state.

AB390,5,21 (2) Notification: manner of giving and effective date. (a) A person gives a notification by doing any of the following:

AB390,5,24 1. Depositing it with the U.S. Postal Service with 1st class postage paid or with a commercially reasonable delivery service with cost of delivery provided, properly addressed to the recipient's address for giving a notification.

AB390,6,3 2. Sending it by facsimile transmission, electronic mail, or other electronic transmission to the recipient's address for giving a notification, but only if the recipient agreed to receive notification in that manner.

AB390,6,5 3. Causing it to be received at the address for giving a notification within the time that it would have been received if given in the manner provided in subd. 1.

AB390,6,6 (b) A notification is effective at any of the following times:

AB390,6,8 1. The day after it is deposited with a commercially reasonable delivery service for overnight delivery.

AB390,6,11 2. Three days after it is deposited with the U.S. Postal Service, with 1st class mail with postage prepaid, or with a commercially reasonable delivery service for delivery other than by overnight delivery.

AB390,6,12 3. The day it is given, if given as provided in par. (a) 2.

AB390,6,14 4. The day it is received, if given by a method other than as provided in par. (a) 1. or 2.

AB390,6,18 (c) If this section or a notification given under this section requires performance on or by a certain day and that day is a Saturday, Sunday, or legal holiday under the laws of this state or the United States, the performance is sufficient if performed on the next day that is not a Saturday, Sunday, or legal holiday.

AB390,6,23 (3) Payoff statement: request and content. (a) An entitled person, or an agent authorized by an entitled person to request a payoff statement, may give to the secured creditor a notification requesting a payoff statement for a specified payoff date not more than 30 days after the notification is given. The notification must contain all of the following:

AB390,6,24 1. The entitled person's name.

AB390,7,3 2. If given by a person other than an entitled person, the name of the person giving the notification and a statement that the person is an authorized agent of the entitled person.

AB390,7,5 3. A direction whether the statement is to be sent to the entitled person or that person's authorized agent.

AB390,7,8 4. The address, facsimile transmission number, or electronic mail or other electronic transmission address to which the secured creditor must send the statement.

AB390,7,10 5. Sufficient information to enable the secured creditor to identify the secured obligation and the real property encumbered by the security interest.

AB390,7,14 (b) If a notification under par. (a) directs the secured creditor to send the payoff statement to a person identified as an authorized agent of the entitled person, the secured creditor must send the statement to the agent, unless the secured creditor knows that the entitled person has not authorized the request.

AB390,7,18 (c) 1. Except as provided in subd. 2., within 4 days after the effective date of a notification that complies with par. (a), the secured creditor shall issue a payoff statement and send it as directed under par. (a) 3. in the manner prescribed in sub. (2) for giving a notification.

AB390,7,23 2. If the person to whom the notification is given once held an interest in the secured obligation but has since assigned that interest, the person need not send a payoff statement but shall, within 4 days after the effective date of the notification, give a notification of the assignment to the person to whom the payoff statement otherwise would have been sent, providing the name and address of the assignee.

AB390,7,25 3. A secured creditor that sends a payoff statement to the entitled person or the authorized agent may not claim that the notification did not satisfy par. (a).

AB390,8,1 (d) A payoff statement must contain all of the following:

AB390,8,4 1. The date on which it was prepared and the payoff amount as of that date, including the amount by type of each fee, charge, or other sum included within the payoff amount.

AB390,8,6 2. The information reasonably necessary to calculate the payoff amount as of the requested payoff date, including the per diem interest amount.

AB390,8,9 3. The payment cutoff time, if any, the address or place where payment, including payment by electronic transmission, if available, must be made, and any limitation as to the authorized method of payment.

AB390,8,11 (e) A payoff statement may contain the amount of any fees authorized under this subsection not included in the payoff amount.

AB390,8,17 (f) A secured creditor may not qualify a payoff amount or state that it is subject to change before the payoff date unless the payoff statement provides information sufficient to permit the entitled person or the person's authorized agent to request an updated payoff amount at no charge and to obtain that updated payoff amount during the secured creditor's normal business hours on the payoff date or the immediately preceding business day.

AB390,8,22 (g) A secured creditor must provide upon request one payoff statement without charge during any 2-month period. A secured creditor may charge a fee of $25 for each additional payoff statement requested during that 2-month period. However, a secured creditor may not charge a fee for providing an updated payoff amount under par. (f) or a corrected payoff statement under sub. (4) (a).

AB390,9,4 (h) Except as otherwise provided in sub. (7), if a secured creditor to which a notification has been given under par. (a) does not send a timely payoff statement that substantially complies with par. (d), the secured creditor is liable to the entitled person for any actual damages caused by the failure plus $500, but not punitive damages. A secured creditor that does not pay the damages provided in this paragraph within 30 days after receipt of a notification demanding payment may also be liable for reasonable attorney fees and costs.

AB390,9,10 (4) Understated payoff statement: correction; effect. (a) If a secured creditor determines that the payoff amount it provided in a payoff statement was understated, the secured creditor may send a corrected payoff statement. If the entitled person or the person's authorized agent receives and has a reasonable opportunity to act upon a corrected payoff statement before making payment, the corrected statement supersedes an earlier statement.

AB390,9,14 (b) Subject to par. (c) 1., a secured creditor that sends a payoff statement containing an understated payoff amount may not deny the accuracy of the payoff amount as against any person that reasonably and detrimentally relies upon the understated payoff amount.

AB390,9,15 (c) This section does not do any of the following:

AB390,9,17 1. Affect the right of a secured creditor to recover any sum that it did not include in a payoff amount from any person liable for payment of the secured obligation.

AB390,9,19 2. Limit any claim or defense that a person liable for payment of a secured obligation may have under law other than this section.

AB390,9,25 (5) Secured creditor to submit satisfaction for recording; liability for failure. (a) A secured creditor shall submit for recording a satisfaction of a security instrument within 30 days after the secured creditor receives full payment or performance of the secured obligation or payment as provided in a payoff statement under sub. (3) or a corrected payoff statement under sub. (4), whichever is applicable. If a security instrument secures a line of credit or future advances, the secured obligation is fully performed only if, in addition to full payment or performance of the secured obligation or payment as provided in a payoff statement under sub. (3) or a corrected payoff statement under sub. (4), the secured creditor has received a notification requesting the secured creditor to terminate the line of credit or containing a statement sufficient to terminate the effectiveness of the provision for future advances in the security instrument.

AB390,10,11 (b) Except as otherwise provided in sub. (7), a secured creditor that is required to submit a satisfaction of a security instrument for recording and that does not do so by the end of the period specified in par. (a) is liable to the landowner for $500, plus any actual damages caused by the failure, but not punitive damages, and any reasonable attorney fees and court costs incurred.

AB390,10,18 (c) Paragraph (b) applies to a secured creditor that receives full payment or performance of the secured obligation or payment as provided in a payoff statement under sub. (3) or a corrected payoff statement under sub. (4) on or after the effective date of this paragraph .... [LRB inserts date]. Section 706.05 (9) and (10), 2009 stats., applies to a secured creditor that received partial or full payment or performance of the secured obligation before the effective date of this paragraph .... [LRB insert date].

AB390,10,20 (6) Form and effect of satisfaction. A document is a satisfaction of a security instrument if it satisfies s. 706.05 (8).

AB390,10,22 (7) Limitation of secured creditor's liability. A secured creditor is not liable under this section if all of the following apply:

AB390,10,24 (a) The secured creditor established a reasonable procedure to achieve compliance with its obligations under this section.

AB390,10,25 (b) The secured creditor complied with that procedure in good faith.

AB390,11,2 (c) The secured creditor was unable to comply with its obligations because of circumstances beyond its control.

AB390,11,7 (8) Satisfaction agent; notification to creditor of affidavit of satisfaction. (a) Only a title company, acting directly or through an authorized agent, may serve as a satisfaction agent under this section. An affidavit of satisfaction under this section is valid only for security instruments recorded against residential real property.

AB390,11,13 (b) Upon, or at any time after, full payment or performance of the secured obligation or payment as provided in a payoff statement under sub. (3) or a corrected payoff statement under sub. (4), a satisfaction agent acting for and with authority from the landowner may give the secured creditor a notification that the satisfaction agent may submit for recording an affidavit of satisfaction of the security instrument against residential real property. The notification must include all of the following:

AB390,11,14 1. The identity and mailing address of the satisfaction agent.

AB390,11,16 2. Identification of the security instrument for which a recorded satisfaction is sought, including the names of the original parties to the security instrument.

AB390,11,18 3. A statement that the satisfaction agent has reasonable grounds to believe all of the following:

AB390,11,20 a. That the real property described in the security instrument is residential real property.

AB390,11,22 b. That the person to which the notification is being given is the secured creditor.

AB390,11,25 c. That the secured creditor has received full payment or performance of the secured obligation or payment as provided in a payoff statement under sub. (3) or a corrected payoff statement under sub. (4).

AB390,12,3 4. A statement that the satisfaction agent may sign and submit for recording an affidavit of satisfaction of the security instrument unless, within 30 days after the effective date of the notification, any of the following occurs:

AB390,12,5 a. The secured creditor submits a satisfaction of the security instrument for recording.

AB390,12,7 b. The satisfaction agent receives from the secured creditor a notification stating that the secured obligation remains unsatisfied.

AB390,12,10 c. The satisfaction agent receives from the secured creditor a notification stating that the secured creditor has assigned the security instrument and identifying the name and address of the assignee.

AB390,12,13 (c) 1. A notification under par. (b) may be sent by a method authorized by sub. (2); alternatively, a notification under par. (b) may be sent to the electronic or other address provided by the secured creditor on a payoff statement under sub. (3) (d) 3.

AB390,12,15 2. A notification under par. (b) may be sent along with a notification, if any, to terminate a line of credit or future advances as provided in sub. (5) (a).

AB390,12,20 (d) The satisfaction agent is presumed to be acting for, and with authority from, the owner if the satisfaction agent, directly or through an agent, assisted in completing full payment or performance of the secured obligation or payment as provided in a payoff statement under sub. (3) or a corrected payoff statement under sub. (4).

AB390,12,22 (e) Nothing in this section requires a person to agree to serve as a satisfaction agent.

AB390,13,2 (9) Authorization to submit affidavit of satisfaction for recording; fees. (a) Subject to pars. (b) and (c), a satisfaction agent may sign and submit for recording an affidavit of satisfaction of a security instrument against residential real property that complies with sub. (10) if either of the following applies:

AB390,13,5 1. The secured creditor has not, to the knowledge of the satisfaction agent, submitted for recording a satisfaction of a security instrument within 30 days after the effective date of a notification complying with sub. (8) (b).

AB390,13,6 2. The secured creditor authorizes the satisfaction agent to do so.

AB390,13,9 (b) A satisfaction agent may not sign and submit for recording an affidavit of satisfaction of a security instrument if it has received a notification under sub. (8) (b) 4. b. stating that the secured obligation remains unsatisfied.

AB390,13,13 (c) If a satisfaction agent receives a notification under sub. (8) (b) 4. c. stating that the security instrument has been assigned, the satisfaction agent may not submit for recording an affidavit of satisfaction of the security instrument without doing both of the following:

AB390,13,15 1. Giving a notification of intent to submit for recording an affidavit of satisfaction to the identified assignee at the identified address.

AB390,13,16 2. Complying with sub. (8) with respect to the identified assignee.

AB390,13,21 (d) A satisfaction agent may submit for recording an affidavit of satisfaction that complies with this section even if full payment or performance of the secured obligation or payment as provided in a payoff statement under sub. (3) or a corrected payoff statement under sub. (4) was made before the effective date of this paragraph .... [LRB inserts date].

AB390,13,25 (e) The satisfaction agent may charge a reasonable fee for sending the notification under sub. (8) and preparing and executing the affidavit of satisfaction. A fee charged by a satisfaction agent under this paragraph that does exceed $75 is conclusively presumed to be reasonable.

AB390,14,2 (10) Content of affidavit of satisfaction. An affidavit of satisfaction of a security instrument against residential real property must do all of the following:

AB390,14,6 (a) Identify the original parties to the security instrument, the secured creditor, the recording data for the security instrument, and, if necessary for proper indexing of the affidavit, a legal description of the real property identified in the security instrument.

AB390,14,8 (b) State the basis upon which the person signing the affidavit is a satisfaction agent.

AB390,14,11 (c) State that the person signing the affidavit has reasonable grounds to believe that the real property described in the security instrument is residential real property.

AB390,14,14 (d) State that the person signing the affidavit has reasonable grounds to believe that the secured creditor has received full payment or performance of the secured obligation.

AB390,14,18 (e) State that the person signing the affidavit, acting with the authority of the owner of the real property described in the security instrument, gave notification to the secured creditor of its authorization to sign and submit for recording an affidavit of satisfaction.

AB390,14,19 (f) State either of the following:

AB390,14,23 1. That more than 30 days have elapsed since the effective date of that notification, and the person signing the affidavit has no knowledge that the secured creditor has submitted a satisfaction of the security instrument for recording and has not received a notification that the secured obligation remains unsatisfied.

AB390,14,25 2. That the secured creditor authorized the person signing the affidavit to sign and record an affidavit of satisfaction.

AB390,15,2 (g) Be signed by the satisfaction agent and contain a form of authentication authorized by s. 706.06 or 706.07.

AB390,15,7 (11) Effect of affidavit of satisfaction. (a) An affidavit of satisfaction of a security instrument against residential real property that complies with the requirements of sub. (10) shall be entitled to record in accordance with s. 706.05 in the office of the register of deeds of the county in which the security instrument is recorded.

AB390,15,10 (b) Upon recording, an affidavit substantially complying with the requirements of sub. (10) constitutes a satisfaction of the security instrument described in the affidavit.