138.056(3m)(a)
(a) Notwithstanding s.
138.052 (2) (a), and except as provided in s.
428.207, a lender may not include a prepayment penalty in a variable rate loan using an approved index unless all of the following are satisfied:
138.056(3m)(a)1.
1. The lender also makes variable rate loans without prepayment penalties and the lender provides the borrower with a written statement that the lender also makes variable rate loans without prepayment penalties.
138.056(3m)(a)2.
2. At the time of the offer of the variable rate loan, and the borrower acknowledges, in writing, receipt of the statement specified in subd.
1. 138.056(3m)(a)3.
3. The penalty is limited to prepayment that is made within 3 years of the date of the loan.
138.056(3m)(a)4.
4. The prepayment is not made in connection with the sale of a dwelling or manufactured home securing the loan.
138.056(3m)(b)
(b) This subsection applies to variable rate loans made, refinanced, renewed, extended, or modified on or after March 25, 2006.
138.056(4)
(4) Notice of interest payment changes. 138.056(4)(a)(a) If a change in the interest rate occurs, the lender shall give the borrower notice of the change:
138.056(4)(a)1.
1. At least 15 days before the change if an increase in periodic payments other than the final payment is required.
138.056(4)(b)
(b) The notice shall be mailed to the borrower's last-known address and shall contain all of the following information:
138.056(4)(b)3.
3. The changes in any index which cause the interest rate change.
138.056(4)(b)4.
4. The amount of the contractual monthly principal and interest payments required as a result of the change.
138.056(4)(c)
(c) This subsection does not apply to a loan secured by an equivalent security interest as determined as of the date that the loan is made.
138.056(5)
(5) Negative amortization. The principal balance of a variable rate loan may be increased to implement an interest rate adjustment only if within 10 years after the loan is made, and at least every 5 years thereafter, the payment amount is adjusted to a level at least sufficient to amortize the loan at the then existing interest rate and principal balance over the remaining term of the loan. The payment amount shall be maintained at least at that level until subsequently adjusted under this subsection, except that the payment amount shall be decreased to reflect any decrease in the interest rate.
138.056(7)
(7) Priority. Any interest accrued or added to the principal of a variable rate loan to implement an interest rate adjustment retains the priority of the original mortgage or equivalent security interest.
138.056(8)
(8) Applicability. This section does not apply to any of the following:
138.056(8)(a)
(a) A loan or forbearance to a corporation or a limited liability company.
138.056(8)(b)
(b) A loan that is primarily for a business purpose or for an agricultural purpose, as defined in s.
421.301 (4).
138.056(8)(d)
(d) A transaction initially entered into before November 1, 1981.
138.056 Cross-reference
Cross-reference: See also s.
DFI-SB 13.02, Wis. adm. code.
138.057
138.057
Penalties. Any lender who intentionally violates s.
138.053,
138.055 or
138.056 is liable to the borrower for all excess interest collected, plus interest thereon at the rate of 5 percent per year. In addition, the borrower may recover actual damages, including incidental and consequential damages, sustained by reason of the violation.
138.057 History
History: 1975 c. 387;
1977 c. 26;
1981 c. 45 s.
51.
138.058
138.058
Reverse mortgage loans. 138.058(1)(a)
(a) “Qualified lender" means a lender approved by the federal department of housing and urban development to enter into a loan insured by the federal government under
12 USC 1715z-20.
138.058(1)(b)
(b) “Reverse mortgage loan" means a loan, or an agreement to lend, which is secured by a first mortgage on the borrower's principal residence, is insured by the federal government under
12 USC 1715z-20 and requires repayment as specified in the loan agreement under any of the following conditions:
138.058(1)(b)2.
2. All the borrowers have sold the residence or conveyed title to the residence.
138.058(1)(b)3.
3. All the borrowers have moved permanently from the residence.
138.058(2)
(2) Reverse mortgages permitted. A qualified lender may enter into reverse mortgage loans.
138.058(3)
(3) Treatment of reverse mortgage loan proceeds by public benefit programs. 138.058(3)(a)
(a) Reverse mortgage loan payments made to a borrower shall be treated as proceeds from a loan and not as income for the purpose of determining eligibility and benefits under means-tested programs of aid to individuals.
138.058(3)(b)
(b) Undisbursed funds shall be treated as equity in a borrower's residence and not as proceeds from a loan for the purpose of determining eligibility and benefits under means-tested programs of aid to individuals.
138.058(3)(c)
(c) This subsection applies to any law relating to payments, allowances, benefits or services provided on a means-tested basis by this state, including supplemental security income, low-income energy assistance, property tax deferral, medical assistance and general assistance.
138.058 History
History: 1993 a. 88.
138.06
138.06
Effect of usury and penalties. 138.06(1)(1)
All instruments, contracts or securities providing a rate of interest exceeding the rate allowed in s.
138.05,
138.051 or
138.052 shall be valid and effectual to secure the repayment of the principal amount loaned in excess of $2,000; but no interest may be recovered thereon except upon bottomry and respondentia bonds and contracts.
138.06(2)
(2) Any lender or agent of a lender who violates s.
138.05,
138.051 or
138.052 may be fined not less than $25 nor more than $500, or imprisoned not more than 6 months, or both.
138.06(3)
(3) Any borrower who paid interest on a loan or forbearance at a rate greater than the rate allowed in s.
138.05,
138.051 or
138.052 may personally or by personal representative recover in an action against the lender or personal representative the amount of interest, principal and charges paid on such loan or forbearance but not more than $2,000 of principal, if the action is brought within the time provided by s.
893.62.
138.06(4)
(4) Any borrower to whom a lender or agent of a lender fails to provide the statement required in s.
138.05 (4) with respect to a loan or forbearance may by himself or herself or his or her personal representative recover in an action against the lender or the lender's personal representative an amount equal to all interest and charges paid upon such loan or forbearance but not less than $50 plus reasonable attorney fees incurred in such action.
138.06(5)
(5) Notwithstanding subs.
(1) to
(4), if any violation of s.
138.05,
138.051 or
138.052 is the result of an unintentional mistake which the lender or agent of the lender corrects upon demand, such unintentional violation shall not affect the enforceability of any provision of the loan contract as so corrected nor shall such violation subject the lender or the agent of the lender to any penalty or forfeiture specified in this section.
138.06(6)
(6) In connection with a sale of goods or services on credit or any forbearance arising therefrom prior to October 9, 1970, there shall be no allowance of penalties under this section for violation of s.
138.05, except as to those transactions on which an action has been reduced to a final judgment as of May 12, 1972.
138.06(7)
(7) Notwithstanding sub.
(6), a seller shall, with respect to a transaction described in sub.
(6), refund or credit the amount of interest, to the extent it exceeds the rate permitted by s.
138.05 (1) (a), which was charged in violation of s.
138.05 and paid by a buyer since October 8, 1968, upon individual written demand therefor made on or before March 1, 1973, and signed by such buyer. A seller who fails within a reasonable time after such demand to make such refund or credit of excess interest shall be liable in an individual action in an amount equal to 3 times the amount thereof, together with reasonable attorney fees.
138.06(8)
(8) This section does not apply to a loan or forbearance made on or after November 1, 1981.
138.06 Annotation
Class actions for the recovery of usurious interest charged by revolving credit plans are not precluded by (3). Mussallem v. Diners' Club, Inc.
69 Wis. 2d 437,
230 N.W.2d 717 (1975).
138.06 Annotation
Sub. (6) is constitutional. 60 Atty. Gen. 198.
138.09
138.09
Licensed lenders. 138.09(1a)(1a)
This section does not apply to any of the following:
138.09(1a)(a)
(a) Banks, savings banks, savings and loan associations, trust companies, credit unions, or any of their affiliates.
Effective date note
NOTE: Par. (c) is created eff. 9-1-24 by
2023 Wis. Act 131. Sub. (1a) (intro.), (a), (b), and (c) are renumbered to sub. (1c) (a) (intro.), 1., 2., and 7. eff. 1-1-25 by
2023 Wis. Acts 131 and
267.
138.09(1c)(a)(a) This section does not apply to any of the following:
138.09(1c)(a)1.
1. Banks, savings banks, savings and loan associations, trust companies, credit unions, or any of their affiliates.
138.09(1c)(a)3.
3. An individual or entity who, in connection with a securitization, private placement, collateral financing, or other type of investment or financing transaction, lends against or purchases consumer loans or any portion of the outstanding balances of consumer loans, if the following apply:
138.09(1c)(a)3.a.
a. The consumer loans are serviced by a licensee under this section, either directly or through a contracted party.
138.09(1c)(a)3.b.
b. The books and records for the consumer loans are maintained by a licensee under this section.
138.09(1c)(b)
(b) This section applies to any person who takes an assignment for sale, in whole or in part, of a consumer loan with a finance charge in excess of 18 percent per year, without regard to whether the loan was originally made by an entity listed under par.
(a) 1. 138.09(1d)
(1d) In this section, “division" means the division of banking.
Effective date note
NOTE: Sub. (1d) is renumbered to sub. (1g) (intro.) and amended eff. 1-1-25 by
2023 Wis. Act 267.
138.09(1g)(a)
(a) “Business” includes any of the following activities:
138.09(1g)(a)1.
1. To make a consumer loan that has a finance charge in excess of 18 percent per year. A person makes a consumer loan within the meaning of this section if the person is named as the lender in the consumer loan agreement.
138.09(1g)(a)2.
2. To take an assignment, in whole or in part, of a consumer loan in which a customer is being assessed a finance charge in excess of 18 percent per year.
138.09(1g)(a)3.
3. Except as provided in sub.
(3) (cm), to directly collect payments from, or enforce rights against, a customer relating to a consumer loan in which a customer is being assessed a finance charge in excess of 18 percent per year.
138.09(1g)(b)
(b) “Consumer loan” means a loan made by any person to a customer that is payable in installments or for which a finance charge is or may be imposed, and includes transactions pursuant to an open-end credit plan, as defined in s.
421.301 (27), other than a seller credit card, as defined in s.
421.301 (41).
138.09(1g)(f)
(f) “Payment processor” means a person who facilitates the purchase of, or payment of a bill for, a good or service through a clearance and settlement system by agreement with the licensee. Payment processor does not include a collection agency, as defined in s.
218.04 (1) (a), a debt collector, as defined in s.
427.103 (3), or any person who directly performs any of the activities set forth in par.
(a).
138.09(1g)(g)
(g) Except in sub.
(9) (a), “service” or “servicing” means collecting or receiving payments of principal, interest, and other amounts on consumer loans and undertaking other tasks related to the administration of consumer loans, including negotiating a modification or extension of consumer loans, under the direction and control of the licensee.
138.09(1g)(h)
(h) “Special purpose vehicle” means an entity that, in connection with a securitization, private placement, collateral financing, or other type of investment or financing transaction, is administered by a duly chartered financial institution under a management agreement for the purpose of purchasing, making loans against, or pooling receivables, general intangibles, and other financial assets, including consumer loans or the outstanding balances of consumer loans.
