425.205(5)(a)
(a) Have execution issue to require the sheriff of the county where the collateral or leased goods may be to take the same from the defendant and deliver it to the plaintiff; or
425.205(5)(b)
(b) Immediately exercise the right to nonjudicial recovery of the collateral or leased goods, subject to
s. 425.206.
425.205(6)
(6) Action pursuant to this section may be commenced at any time after the customer is in default, but the return day of process may not be set prior to the expiration of the period for cure of the default by the customer (
s. 425.105), if applicable.
425.206
425.206
Nonjudicial enforcement limited. 425.206(1)
(1) Notwithstanding any other provision of law, no merchant may take possession of collateral or goods subject to a consumer lease in this state by means other than legal process in accordance with this subchapter except when:
425.206(1)(a)
(a) The customer has surrendered the collateral or leased goods;
425.206(1)(b)
(b) Judgment for the merchant has been entered in a proceeding for recovery of collateral or leased goods under
s. 425.205, or for possession of the collateral or leased goods under
s. 425.203 (2);
425.206(2)
(2) In taking possession of collateral or leased goods, no merchant may do any of the following:
425.206(2)(b)
(b) Enter a dwelling used by the customer as a residence except at the voluntary request of a customer.
425.206 Annotation
See note to 425.204, citing Wachal v. Ketterhagen Motor Sales, Inc. 81 W (2d) 605, 260 NW (2d) 770.
425.206 Annotation
Notwithstanding 421.201 (5), this section governs repossessions outside state where contract provides for enforcement under internal law of Wisconsin. First Wis. Nat. Bank of Madison v. Nicolaou, 85 W (2d) 393, 270 NW (2d) 582 (Ct. App. 1978).
425.206 Annotation
A "breach of the peace" under sub. (2) has the same meaning as in s. 409.503. Repossession in disregard of the debtor's oral protest is a breach of the peace. Punitive damages may be appropriate as the result of the breach of the peace. Hollibush v. Ford Motor Company, 179 W (2d) 799, 508 NW (2d) 449 (Ct. App. 1993).
425.206 Annotation
The abolition of self-help repossession; the poor pay even more. White, 1973 WLR 503.
425.206 Annotation
The impact of denying self-help repossession of automobiles: a case study of the Wisconsin consumer act. Whitford, Laufer, 1975 WLR 607.
425.207
425.207
Restraining order to protect collateral or leased goods; abandoned property. 425.207(1)
(1) If the court finds that the merchant probably will recover possession of the collateral or goods subject to a consumer lease, and the customer is acting, or is about to act, with respect to the collateral or leased goods in a manner which substantially impairs the merchant's prospect for realization of the merchant's security interest or the merchant's interest in the leased goods, the court may issue an order pursuant to
s. 813.02 restraining the customer from so acting with respect to the collateral or leased goods, and need not require a bond by the merchant, notwithstanding
s. 813.06.
425.207(2)
(2) A merchant who reasonably believes that a customer has abandoned collateral or goods subject to a consumer lease may take possession of such collateral or leased goods and preserve it. However, the customer may recover such collateral or leased goods upon request unless at the time of request the customer has surrendered the collateral or leased goods, or judgment for the merchant has been entered in a proceeding for recovery of collateral or leased goods under
s. 425.205 or in a judgment described in
s. 425.203 (2). A merchant taking possession of collateral or leased goods pursuant to this section shall promptly send notification to the customer's last-known address of such action and of the customer's right to recover such collateral or leased goods under this section. If the collateral or leased goods are recovered by the customer pursuant to this section, it shall be returned to the customer at the location where the merchant took possession of such collateral or leased goods pursuant to this section or, at the option of the merchant, at such other location designated by the customer; and any expense incurred by the merchant in taking possession of, holding and returning the collateral or leased goods to the customer shall be borne by the merchant. If after taking possession of collateral or leased goods pursuant to this subsection, the merchant perfects the right to possession through a surrender by the customer or a judgment under
s. 425.203 (2) or
425.205, the customer is liable for the expenses set forth in
s. 409.504 (1). In determining such expenses, leased goods shall be considered collateral under
s. 409.504 (1). However, a customer is not liable for expenses of holding the collateral or leased goods from the time the merchant takes possession until the merchant perfects the right to possession in the manner provided in this subsection. This subsection shall not apply to collateral recovered in accordance with
s. 425.114.
425.207 History
History: 1971 c. 239; Sup. Ct. Order, 67 W (2d) 585, 776 (1975);
1975 c. 407,
421,
422;
1979 c. 10;
1981 c. 314 s.
146.
425.208
425.208
Customer's right to redeem. 425.208(1)
(1) For a period of 15 days following exercise by the creditor of nonjudicial enforcement rights (
s. 425.206) or issuance of process (
s. 425.205) with regard to the collateral, the customer shall, except in a transaction for an agricultural purpose if otherwise agreed in writing after default, be entitled to redeem the goods by tendering:
425.208(1)(a)
(a) The total of all unpaid amounts, including any unpaid delinquency or deferral charges due at the time of tender, without acceleration; plus
425.208(1)(b)
(b) Performance necessary to cure any default other than nonpayment of amounts due; plus
425.208(1)(c)
(c) Any court costs, filing and service fees, and bond premium charges incurred by the creditor; plus
425.208(1)(cm)
(cm) If a writing evidencing the consumer credit transaction so provides, expenses the creditor is entitled to recover under
s. 422.413 (2) and
(2g) (a) and
(b); plus
425.208(1)(d)
(d) A performance deposit, in the amount of 3 scheduled instalments (or minimum payments in the case of an open-end credit plan), or one-third of the total obligation remaining unpaid with respect to the consumer credit transaction, whichever is less.
425.208(2)
(2) Tender of the payment and performance pursuant to
sub. (1) restores to the customer the customer's rights under the agreement as though all payments and performance had been made as scheduled.
425.208(3)
(3) Upon such redemption, any process under which the collateral has been held shall be vacated, any pending action shall be dismissed, and the collateral shall be returned to the customer.
425.208(4)
(4) The performance deposit shall be held by the merchant to secure, and may be applied at any time to, the remaining obligations of the customer under the consumer transaction.
425.208(5)
(5) The existence of the deposit does not cure any subsequent default of the customer, and the deposit need not be credited to the customer's account until the remaining unpaid balance of the transaction becomes equal to the deposit. In the event of a subsequent default, prepayment, or other occurrence (except deferral) which requires the computation under
chs. 421 to
427 of the outstanding obligation of the customer, the deposit shall be credited to the amount paid for the purposes of such computation.
425.208(6)
(6) The creditor shall not dispose of the collateral or enter into a contract for the disposition of the collateral, until the expiration of the period for redemption provided in this section, unless the collateral is perishable or threatens to decline speedily in value. Upon the expiration of such period any disposition of the collateral shall be subject to
ss. 409.504,
409.505 and
409.506, except that the customer may be liable for a deficiency only to the extent provided in
ss. 425.209 and
425.210.
425.209
425.209
Restrictions on deficiency judgments. 425.209(1)(1) This section applies to a deficiency on a consumer credit sale of goods or services and on a consumer loan in which the lender is subject to defenses arising from sales (
s. 422.408); a customer is not liable for a deficiency unless the merchant has disposed of the goods in good faith and in a commercially reasonable manner.
425.209(2)
(2) If the merchant repossesses or accepts voluntary surrender of goods which were the subject of the sale and in which the merchant has a security interest, the customer is not personally liable to the merchant for the unpaid balance of the debt arising from the sale of a commercial unit of the goods of which the amount owing at the time of default was $1,000 or less, and the merchant is not obligated to resell the collateral unless the customer has paid 60% or more of the cash price and has not signed after default a statement renouncing the customer's rights in the collateral.
425.209(3)
(3) If the merchant repossesses or accepts voluntary surrender of goods which were not the subject of the sale but in which the merchant has a security interest to secure a debt arising from a sale of goods or services or a combined sale of goods and services and the amount owing at the time of default was $1,000 or less, the customer is not personally liable to the merchant for the unpaid balance of the debt arising from the sale, and the merchant's duty to dispose of the collateral is governed by the provisions on disposition of collateral under
chs. 401 to
411.
425.209(4)
(4) If the lender takes possession or accepts voluntary surrender of goods in which the lender has a security interest to secure a debt arising from a consumer loan in which the lender is subject to defenses arising from sales (
s. 422.408) and the amount owing at the time of default of the loan paid to or for the benefit of the customer were $1,000 or less, the customer is not personally liable to the lender for the unpaid balance of the debt arising from the loan and the lender's duty to dispose of the collateral is governed by the provisions on disposition of collateral under
chs. 401 to
411.
425.209(5)
(5) The customer may be liable in damages to the merchant if the customer has wrongfully damaged the collateral or if, after judgment for the creditor has been entered in a proceeding for recovery of collateral under
s. 425.205, the customer has wrongfully failed to make the collateral available to the merchant.
425.209(6)
(6) If the merchant elects to bring an action against the customer for a debt arising from a consumer credit sale of goods or services or from a consumer loan in which the lender is subject to defenses arising from sales (
s. 422.408), when under this section the merchant would not be entitled to a deficiency judgment if the merchant took possession of the collateral, and obtains judgment:
425.209(6)(a)
(a) The merchant may not take possession of the collateral; and
425.209(6)(b)
(b) The collateral is not subject to levy or sale on execution or similar proceedings pursuant to the judgment.
425.209 Annotation
Proof of disposal of goods in accordance with (1) must be made by merchant to obtain deficiency judgment; failure need not be asserted as affirmative defense. Shoeder's Auto Center, Inc. v. Teschner, 166 W (2d) 198, 479 NW (2d) 203 (Ct. App. 1991).
425.210
425.210
Computation of deficiency. If the creditor is entitled to a deficiency judgment pursuant to
s. 425.209 (1), the creditor shall be entitled to recover from the customer the deficiency, if any, remaining after deducting the fair market value of the collateral from the unpaid balance.
425.210 History
History: 1971 c. 239.
CUSTOMER'S REMEDIES
425.301
425.301
Remedies to be liberally administered. 425.301(1)(1) The remedies provided by this subchapter shall be liberally administered to the end that the customer as the aggrieved party shall be put in at least as good a position as if the creditor had fully complied with
chs. 421 to
427. Recoveries under
chs. 421 to
427 shall not in themselves preclude the award of punitive damages in appropriate cases.
425.301(2)
(2) Any right or obligation declared by
chs. 421 to
427 is enforceable by action unless the provision declaring it specifies a different and limited effect.
425.301(3)
(3) Notwithstanding any other section of
chs. 421 to
427, a customer shall not be entitled to recover specific penalties provided in
s. 425.302 (1) (a),
425.303 (1),
425.304 (1) or
425.305 (1) if the person violating
chs. 421 to
427 shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
425.301(4)
(4) The liability of a merchant under
chs. 421 to
427 is in lieu of and not in addition to any liability under the federal consumer credit protection act and
s. 138.09 or
218.01. An action by a person alleging a violation under
chs. 421 to
427 may not be maintained if a final judgment has been rendered for or against that person with respect to the same violation under the federal consumer credit protection act or
s. 138.09 or
218.01. If a final judgment is entered against any merchant under
chs. 421 to
427 and the federal consumer credit protection act or
s. 138.09 or
218.01 for the same violation, the merchant has a cause of action for appropriate relief to the extent necessary to avoid double liability.
425.301(5)
(5) If there are multiple obligors in the same consumer credit transaction or consumer lease, there may be no more than one recovery of civil penalties for each violation of
chs. 421 to
427.
425.301 Annotation
Error of law is not bona fide error under (3). First Wisconsin Nat. Bank v. Nicolaou, 113 W (2d) 524, 335 NW (2d) 390 (1983).
425.302
425.302
Remedy and penalty for certain violations. 425.302(1)(1) A person who commits a violation to which this section applies is liable to the customer in an amount equal to:
425.302(1)(b)
(b) The actual damages, including any incidental and consequential damages, sustained by the customer by reason of the violation.
425.302(2)
(2) This section also applies to all violations for which no other remedy is specifically provided.
425.302 History
History: 1971 c. 239.
425.303
425.303
Remedy and penalty for certain violations. A person who commits a violation to which this section applies is liable to the customer in an amount equal to:
425.303(2)
(2) The actual damages, including any incidental and consequential damages, sustained by the customer by reason of the violation.
425.303 History
History: 1971 c. 239.
425.304
425.304
Remedy and penalty for certain violations. A person who commits a violation to which this section applies is liable to the customer in an amount equal to the greater of:
425.304(1)
(1) Twice the amount of the finance charge in connection with the transaction, except that the liability under this subsection shall not be less than $100 nor greater than $1,000; or
425.304(2)
(2) The actual damages, including any incidental and consequential damages, sustained by the customer by reason of the violation.
425.304 History
History: 1971 c. 239.
425.305
425.305
Transactions which are void. 425.305(1)
(1) In a transaction to which this section applies, the customer shall be entitled to retain the goods, services or money received pursuant to the transaction without obligation to pay any amount.
425.305(2)
(2) In addition, the customer shall be entitled to recover any sums paid to the merchant pursuant to the transaction.
425.305 History
History: 1971 c. 239;
1973 c. 2.
425.306
425.306
Unenforceable obligations. 425.306(1)
(1) Any charge, practice, term, clause, provision, security interest or other action or conduct in violation of
chs. 421 to
427, to the extent that the same is in violation of
chs. 421 to
427, shall confer no rights or obligations enforceable by action.
425.306(2)
(2) This section shall not affect the enforcement of any provision that is not prohibited by
chs. 421 to
427.
425.306 History
History: 1971 c. 239;
1979 c. 89.
425.307
425.307
Limitation of action. 425.307(1)
(1) Any action brought by a customer to enforce rights pursuant to
chs. 421 to
427 shall be commenced within one year after the date of the last violation of
chs. 421 to
427,
2 years after consummation of the agreement or one year after last payment, whichever is later, except with respect to transactions pursuant to open-end credit plans which shall be commenced within 2 years after the date of the last violation; but no action may be commenced more than 6 years after the date of the last violation.
425.307(2)
(2) Rights under
chs. 421 to
427 may be asserted as a defense, setoff or counterclaim to an action against the customer without regard to this time limitation.
425.307 History
History: 1971 c. 239;
1979 c. 89.
425.308
425.308
Reasonable attorney fees. 425.308(1)
(1) If the customer prevails in an action arising from a consumer transaction, the customer shall recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred on the customer's behalf in connection with the prosecution or defense of such action, together with a reasonable amount for attorney fees.
425.308(2)
(2) The award of attorney fees shall be in an amount sufficient to compensate attorneys representing customers in actions arising from consumer transactions. In determining the amount of the fee, the court may consider:
