425.107(1)(1) With respect to a consumer credit transaction, if the court as a matter of law finds that any aspect of the transaction, any conduct directed against the customer by a party to the transaction, or any result of the transaction is unconscionable, the court shall, in addition to the remedy and penalty authorized in
sub. (5), either refuse to enforce the transaction against the customer, or so limit the application of any unconscionable aspect or conduct to avoid any unconscionable result.
425.107(2)
(2) Specific practices forbidden by the administrator in rules promulgated pursuant to
s. 426.108 shall be presumed to be unconscionable.
425.107(3)
(3) Without limiting the scope of
sub. (1), the court may consider, among other things, the following as pertinent to the issue of unconscionability:
425.107(3)(a)
(a) That the practice unfairly takes advantage of the lack of knowledge, ability, experience or capacity of customers;
425.107(3)(b)
(b) That those engaging in the practice know of the inability of customers to receive benefits properly anticipated from the goods or services involved;
425.107(3)(c)
(c) That there exists a gross disparity between the price of goods or services and their value as measured by the price at which similar goods or services are readily obtainable by other customers, or by other tests of true value;
425.107(3)(d)
(d) That the practice may enable merchants to take advantage of the inability of customers reasonably to protect their interests by reason of physical or mental infirmities, illiteracy or inability to understand the language of the agreement, ignorance or lack of education or similar factors;
425.107(3)(e)
(e) That the terms of the transaction require customers to waive legal rights;
425.107(3)(f)
(f) That the terms of the transaction require customers to unreasonably jeopardize money or property beyond the money or property immediately at issue in the transaction;
425.107(3)(g)
(g) That the natural effect of the practice would reasonably cause or aid in causing customers to misunderstand the true nature of the transaction or their rights and duties thereunder;
425.107(3)(h)
(h) That the writing purporting to evidence the obligation of the customer in the transaction contains terms or provisions or authorizes practices prohibited by law; and
425.107(3)(i)
(i) Definitions of unconscionability in statutes, regulations, rulings and decisions of legislative, administrative or judicial bodies.
425.107(4)
(4) Any charge or practice expressly permitted by
chs. 421 to
427 and
429 is not in itself unconscionable but even though a practice or charge is authorized by
chs. 421 to
427 and
429, the totality of a creditor's conduct may show that such practice or charge is part of an unconscionable course of conduct.
425.107(5)
(5) In addition to the protections afforded in
sub. (1), the customer shall be entitled upon a finding of unconscionability to recover from the creditor or the person responsible for the unconscionable conduct a remedy and penalty in accordance with
s. 425.303.
425.108
425.108
Extortionate extensions of credit. 425.108(1)
(1) If it is the understanding of the creditor and the customer during any time that an extension of credit is outstanding, that delay in making repayment could result in the use of violence to cause harm to the person or property of any person, the extension of credit shall be unenforceable in accordance with
s. 425.305 and the customer shall additionally recover triple the penalty provided in
s. 425.304 (1).
425.108(2)
(2) If it is shown that an extension of credit was made at an annual rate exceeding that permitted by or referred to in
s. 422.201 on maximum charges and that the creditor had a reputation for the use or threat of use of violence to cause harm to the person or property of any person to collect extensions of credit or to punish the nonrepayment thereof, it shall be presumed that the extension of credit was a violation under
chs. 421 to
427 under
sub. (1).
425.108 History
History: 1971 c. 239;
1979 c. 89.
425.109(1)(1) A complaint by a creditor to enforce any cause of action arising from a consumer credit transaction shall include all of the following:
425.109(1)(a)
(a) An identification of the consumer credit transaction.
425.109(1)(b)
(b) A description of the collateral or leased goods, if any, which the creditor seeks to recover or has recovered.
425.109(1)(c)
(c) A specification of the facts constituting the alleged default by the customer.
425.109(1)(d)
(d) The actual or estimated amount of U.S. dollars or of a named foreign currency that the creditor alleges he or she is entitled to recover and the figures necessary for computation of the amount, including any amount received from the sale of any collateral.
425.109(1)(e)
(e) Except in an action to recover goods subject to a consumer lease, a statement that the customer has the right to redeem any collateral as provided in
s. 425.208 (1) (intro.) and the actual or estimated amount of U.S. dollars or of a named foreign currency required for redemption, itemized in accordance with
s. 425.208 (1) (a) to
(d).
425.109(1)(f)
(f) Except in an action to recover goods subject to a consumer lease, the estimated amount of U.S. dollars or of a named foreign currency of any deficiency claim which may be available to the creditor following the disposition of any collateral recovered subject to the limitations of
s. 425.209 or which the creditor seeks to recover and which the creditor intends to assert subject to the limitations of
s. 425.210 if the customer fails to redeem the collateral.
425.109(1)(g)
(g) If the customer still has the right to cure a default under
s. 425.105 pursuant to a notice given under
s. 425.104, the total payment or other performance necessary to cure the alleged default and the exact date by which it must be made.
425.109(1)(h)
(h) An accurate copy of the writings, if any, evidencing the transaction, except that with respect to claims arising under open-end credit plans, a statement that the creditor will submit accurate copies of the writings evidencing the customer's obligation to the court and the customer upon receipt of the customer's written request therefor on or before the return date or the date on which the customer's answer is due.
425.109(2)
(2) Upon the written request of the customer, the creditor shall submit accurate copies to the court and the customer of writings evidencing any transaction pursuant to an open-end credit plan upon which the creditor's claim is made and judgment may not be entered for the creditor unless the creditor does so.
425.109(3)
(3) A judgment may not be entered upon a complaint which fails to comply with this section.
425.109 Annotation
A stated amount owed as of a specific date with a per diem interest figure is not a sufficient statement of "the figures necessary for computation of the amount" as required by sub. (1) (d); a complaint is not sufficient under this section because it meets the general rules of notice pleading. Household Finance Corp. v. Kohl, 173 W (2d) 798, 496 NW (2d) 708 (Ct. App. 1993).
425.110
425.110
No discharge from employment for garnishment. 425.110(1)(1) No employer shall discharge an employe because a merchant has subjected or attempted to subject unpaid earnings of the employe to garnishment or like proceedings directed to the employer for the purpose of paying a judgment arising from a consumer credit transaction.
425.110(2)
(2) If an employer violates this section, an employe shall recover back wages and be reinstated, if the employe files an action for such relief within 90 days of the employe's discharge.
425.110 History
History: 1971 c. 239.
425.111
425.111
Levy before judgment. 425.111(1)
(1) Prior to entry of judgment in an action subject to this subchapter, no process, other than a restraining order to protect collateral (
s. 425.207), shall issue with respect to amounts that are owing or are claimed to be owing or may be owing to the customer by any 3rd person, whether by way of attachment, garnishment or other process.
425.111(2)
(2) With respect to property of the customer other than that described in
sub. (1), process may issue in accordance with
ch. 811 to establish a lien, except that such process shall not be effective to take, or to divest the customer of possession of, the property until final judgment is entered.
425.111(3)
(3) If the court finds that the creditor probably will recover on the action, and that the customer is acting, or is about to act, with respect to property of the customer upon which a lien has been established under
sub. (2), in a manner which substantially impairs the creditor's prospects for satisfying the judgment against such property (
s. 811.03), the court may issue an order restraining the customer from so acting with respect to that property until final judgment is entered.
425.111 History
History: 1971 c. 239;
1973 c. 2; Sup. Ct. Order, 67 W (2d) 585, 776 (1975).
425.111 Note
Legislative Council Note, 1973: Clarifies applicability of this subsection. Section 425.111 (1) refers to property of the customer subject to garnishment, and prescribes limitations on creditors' actions in relation to it. Sub. (2) refers to other property of the customer; however, the language struck by this amendment appears to make sub. (2) refer back to the same property dealt with by sub. (1), so it is deleted. [Bill 355-A]
425.112
425.112
Stay of execution. At the time of or at any time after the entry of a judgment in favor of a creditor against a customer in an action arising from a consumer transaction, the court, for cause and upon motion of a party or on its own motion, may stay enforcement of the judgment by order upon just and equitable conditions, and continue, modify or revoke the order as the interests of justice may require.
425.112 History
History: 1971 c. 239.
425.113(1)(1) No merchant shall cause or permit a warrant against the person of a customer to issue under
ch. 816 with respect to a claim arising from a consumer credit transaction. Any process issued in violation of this section is void.
425.113 History
History: 1971 c. 239; Sup. Ct. Order, 67 W (2d) 585, 776 (1975).
425.113 Annotation
See note to art. VII, sec. 2, citing Smith v. Burns, 65 W (2d) 638, 223 NW (2d) 562.
425.114
425.114
Repossession of farm products. Sections 425.103,
425.104 and
425.105 do not apply to the recovery of farm products as defined in
s. 409.109 (3) which are collateral in a transaction for an agricultural purpose if the merchant reasonably believes the customer to be in default because of the customer's failure, without justification under any law, to observe any covenant of the transaction, breach of which materially impairs the condition, value or protection of or the merchant's right in such collateral. The rights and obligations of the merchant and the customer with respect to such collateral in case of such default are governed by
ss. 409.501 to
409.507, except that the customer's right to redeem shall be governed by
s. 425.208 and the restrictions on deficiency judgments contained in
s. 425.209 shall apply to transactions described in that section.
425.114 History
History: 1979 c. 10.
ENFORCEMENT OF SECURITY INTERESTS IN COLLATERAL
425.201
425.201
Scope. This subchapter applies to the enforcement by a creditor of security interests in collateral.
425.201 History
History: 1971 c. 239.
425.202
425.202
Definition: "collateral". For purposes of this chapter, "collateral" means goods subject to a security interest in favor of a merchant which secures a customer's obligations under a consumer credit transaction.
425.202 History
History: 1971 c. 239;
1975 c. 407.
425.203
425.203
Enforcement of merchant's rights in collateral and leased goods. 425.203(1)(1) At any time after default (
s. 425.103) and the expiration of the period for cure of default (
s. 425.105), if applicable, a merchant may commence an action to recover collateral or goods subject to a consumer lease pursuant to
s. 425.205, or reduce the claim to a judgment by any available judicial procedure.
425.203(2)
(2) In any action for a judgment under
sub. (1) other than an action pursuant to
s. 425.205, the judgment may provide for the right to possession of the collateral or leased goods by the merchant and for a deficiency, if the merchant would not be precluded from a deficiency judgment under
s. 425.209 had the merchant initially proceeded against the collateral and if the judgment includes a finding that the merchant has the right to possession of any collateral securing the consumer credit transaction or goods subject to a consumer lease. Upon determining such judgment under this subsection the merchant shall have the right to:
425.203(2)(a)
(a) Have execution issue to require the sheriff in the county where the collateral or leased goods may be to take the same from the defendant and deliver it to the plaintiff; or
425.203(2)(b)
(b) Immediately exercise the right to nonjudicial recovery of the collateral or leased goods, subject to
s. 425.206.
425.203(3)
(3) Following recovery of collateral pursuant to a judgment under
sub. (2), the merchant may either retain the collateral in full satisfaction of the customer's obligation pursuant to
s. 409.505, in which event the merchant shall satisfy the judgment obtained pursuant to
sub. (2); or shall dispose of the collateral pursuant to
s. 409.504, in which event:
425.203(3)(a)
(a) The merchant shall apply to the court which entered the judgment pursuant to
sub. (2) to confirm the sale or other disposition of the collateral upon 8 days' notice to all parties named in such action, either personally or by certified or registered mail directed to the last-known address of the parties. Such notice shall state, in addition to any other matter required by law, the time and place of the hearing, the amount of the judgment, the proceeds received upon disposition of the collateral, the fair market value of the collateral claimed by the merchant if such standard is applicable under
s. 425.210, the reasonable expenses incurred in disposition of collateral, the net amount proposed to be credited against the judgment, and any deficiency remaining. In addition, the notice directed to the customer shall conspicuously advise the customer of the right to appear at such hearing and to contest any matter set forth in the notice.
425.203(3)(b)
(b) At such a hearing on confirmation, the court shall determine on the basis of the evidence presented by the parties, by affidavit or otherwise, the commercial reasonableness of the merchant's disposition of the collateral, the reasonable expenses incurred by the merchant in disposition of the collateral, the compliance with
s. 425.210 if applicable, the resulting amount to be credited against the judgment and the remaining deficiency. Following such hearing and determinations, the court shall enter an appropriate order to satisfy the judgment and provide such other relief as may be appropriate. Where the underlying transaction is a consumer credit sale of goods or services or a consumer loan in which the lender is subject to defenses arising from
s. 422.408, this hearing shall be considered a proceeding for a deficiency judgment pursuant to
s. 425.209 (1).
425.203(4)
(4) Following recovery of goods subject to a consumer lease pursuant to a judgment under
sub. (2), no deficiency shall be allowable unless the merchant disposes of the leased goods and applies the proceeds to the customer's obligation, in which event:
425.203(4)(a)
(a) The merchant shall apply to the court which entered the judgment pursuant to
sub. (2) to confirm the sale or other disposition of the leased goods upon 8 days' notice to all parties named in the action, either personally or by certified or registered mail directed to the last-known address of the parties. Such notice shall state, in addition to any other matter required by law, the time and place of the hearing, the amount of the judgment, the proceeds received upon disposition of the leased goods, the reasonable expenses incurred in disposition of the leased goods, the net amount proposed to be credited against the judgment, and any deficiency remaining. In addition, the notice directed to the customer shall conspicuously advise the customer of the right to appear at such hearing and to contest any matter set forth in the notice.
425.203(4)(b)
(b) At such a hearing on confirmation, the court shall determine on the basis of evidence presented by the parties, by affidavit or otherwise, the commercial reasonableness of the merchant's disposition of the leased goods, the reasonable expenses incurred by the merchant in disposition of the leased goods, and the resulting amount to be credited against the judgment entered pursuant to
sub. (2). Following such hearing and determinations, the court shall enter an appropriate order to satisfy the judgment and provide such other relief as may be appropriate.
425.203 History
History: 1971 c. 239;
1975 c. 407,
421.
425.204
425.204
Voluntary surrender of collateral. 425.204(1)
(1) Notwithstanding a waiver by the creditor of the security interest in collateral under
s. 425.203 (2) or any other law, the customer shall have the right at any time to voluntarily surrender all of the customer's rights and interests in the collateral to the merchant.
425.204(2)
(2) The rights and obligations of the merchant and customer with respect to collateral voluntarily surrendered as defined in this section shall be governed by
ss. 409.504 to
409.507, and are not subject to this subchapter.
425.204(3)
(3) The surrender of collateral by a customer is not a voluntary surrender if it is made pursuant to a request or demand by the merchant for the surrender of the collateral, or if it is made pursuant to a threat, statement or notice by the merchant that the merchant intends to take possession of the collateral.
425.204 History
History: 1971 c. 239;
1991 a. 316.
425.204 Annotation
Under facts of case, customer did not "voluntarily surrender" vehicle within meaning of (3). Wachal v. Ketterhagen Motor Sales, Inc. 81 W (2d) 605, 260 NW (2d) 770.
425.205
425.205
Action to recover collateral. 425.205(1)
(1) Except as provided in
s. 425.206, a creditor seeking to obtain possession of collateral or goods subject to a consumer lease shall commence an action for replevin of the collateral or leased goods. Those actions shall be conducted in accordance with
ch. 799, notwithstanding
s. 799.01 (1) (c) and the value of the collateral or leased goods sought to be recovered, except that:
425.205(1)(a)
(a) Notwithstanding
ss. 799.05 (2) and
799.06 (2), process shall be issued by the clerk of court, and such action shall be commenced upon the request of an officer or employe of a merchant on the merchant's behalf;
425.205(1)(b)
(b) The summons shall be in the form prescribed in
sub. (2), and a complaint in the form described in
sub. (3) shall be served with the summons;
425.205(1)(c)
(c) When service is made pursuant to
s. 799.12 (3) certified mail with return receipt requested shall be employed;
425.205(1)(d)
(d) On the return date of the summons or any adjournment date thereof the customer shall have the right to a hearing on the issue of default or other matter which questions the validity of the merchant's claim to the collateral or leased goods, and the customer may answer, move to dismiss under
s. 802.06 (2) or otherwise plead to the complaint orally, but if the customer fails to appear on the return day, judgment may be entered by the clerk or judge in accordance with the demands of the verified complaint, or upon an affidavit of the facts, or sworn testimony or other evidence to the clerk or judge; and
425.205(1)(e)
(e) Judgment in such action shall determine only the right to possession of the collateral or leased goods, but such judgment shall not bar any subsequent action for damages or deficiency to the extent permitted by this subchapter.
425.205(2)
(2) The summons in such actions shall be in the following form:
State of Wisconsin
Circuit Court
.... County
A. B. Plaintiff
