779.85(5)
(5) "Prepaid maintenance agreement" means any agreement in which a customer agrees to make prepayment for maintenance to be performed by a seller.
779.85(6)
(6) "Prepayment" means any full or partial payment received by a seller or an obligation incurred by a customer to a creditor or to a seller or to a seller's assignee for maintenance to be performed by a seller if payment is made before the maintenance is rendered or received. This term does not include prepayment for maintenance under an insurance policy. Except with regard to a warranty under
s. 218.14, this term does not include prepayment for maintenance to be provided under a manufacturer's warranty on goods or maintenance unless there is a prepayment made for maintenance to be rendered under the warranty separate from the payment for the goods themselves.
779.85(7)
(7) "Regulated prepaid maintenance agreement" means a prepaid maintenance agreement meeting the following requirements:
779.85(7)(b)
(b) The total period during which the seller is obligated to provide maintenance exceeds one year whether the obligation is initially for more than one year or is extended or renewed beyond one year.
779.85 History
History: 1977 c. 296;
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.85;
1983 a. 189 s.
329 (24), (30).
779.86
779.86
Records. A seller shall retain records for 60 days following completion of the time period for which prepaid maintenance is to be performed under a prepaid maintenance agreement including but not limited to records showing the amount of prepayment, the period for which maintenance is to be performed, all contracts relating to such maintenance and all records pertaining to the escrow account or bond required under
s. 779.87.
779.86 History
History: 1977 c. 296;
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.86.
779.87
779.87
Escrow account or bond requirement. 779.87(1)(1)
Requirement. A seller who enters a regulated prepaid maintenance agreement shall either maintain an escrow account or maintain a bond.
779.87(2)(a)(a)
Surety. If a seller maintains an escrow account, all proceeds received under any regulated prepaid maintenance agreement shall be deposited in the escrow account for the benefit of any customer who suffers a loss of prepayments for maintenance due to the bankruptcy or cessation of business by the seller.
779.87(2)(b)
(b)
Not to be commingled. The seller shall not commingle the proceeds received under a regulated prepaid maintenance agreement with any other funds and any other funds which are commingled become a part of and shall be deposited in the escrow account. The seller may aggregate the proceeds received under several prepaid maintenance agreements in one escrow account.
779.87(2)(c)
(c)
Interest. The seller may withdraw and retain for his or her own use any interest payments received on the escrow account.
779.87(2)(d)
(d)
Not to be used prior to discharge. The seller may not withdraw or use the proceeds received under a regulated prepaid maintenance agreement which are deposited in an escrow account prior to the discharge of the prepaid maintenance lien under
s. 779.91.
779.87(2)(e)
(e)
Not subject to attachment. Until all prepaid maintenance liens are discharged, the escrow account is not subject to garnishment, execution, levy, attachment or foreclosure except as provided under
s. 779.92.
779.87(3)(a)(a)
Surety. If a seller maintains a bond, it shall be issued by a surety company licensed to do business in this state.
779.87(3)(b)
(b)
Amount; filed. The principal sum of the bond shall be $25,000 at all times. A copy of the bond shall be filed with the department of financial institutions.
779.87(3)(c)
(c)
For benefit of customer. The bond shall be in favor of the state for the benefit of any customer who suffers a loss of prepayments for maintenance due to the bankruptcy or cessation of business by the seller. Any customer claiming against the bond may maintain an action against the seller and the surety.
779.87(3)(d)
(d)
Surety's obligation. If the seller fails to perform maintenance under a regulated prepaid maintenance agreement, the surety shall either perform or procure the performance of that maintenance or pay the customer the amount of the prepayment made under the agreement.
779.87(3)(e)
(e)
No lien. If a seller maintains a bond under this subsection, a customer does not have a prepaid maintenance lien under
s. 779.88.
779.87 History
History: 1977 c. 296;
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.87;
1995 a. 27.
779.88
779.88
Prepaid maintenance lien. Except as provided under
s. 779.87 (3), a customer who makes a prepayment under a regulated prepaid maintenance agreement has a lien designated as a prepaid maintenance lien in the amount of the prepayment on all the proceeds contained in the escrow account, including all after acquired proceeds. This lien is preferred to all other liens, security interests and claims on such proceeds except other prepaid maintenance liens which attached at an earlier time.
779.88 History
History: 1977 c. 296;
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.88.
779.89
779.89
Attachment and preservation. All prepaid maintenance liens attach at the time of the first prepayment and shall be preserved from the time the lien attaches. It is not necessary to file or record any notice of the lien in order to preserve or perfect the lien although a customer may file this lien in the manner prescribed for perfecting liens under
ch. 409.
779.89 History
History: 1977 c. 296;
1979 c. 32 s.
57; Stats. 1979 s. 779.89.
779.90
779.90
Notice of existence of lien. A person is deemed to have notice of a prepaid maintenance lien if:
779.90(1)
(1) That person has actual knowledge or reason to know that the lien exists on the seller's property;
779.90(2)
(2) That person has reason to know that the seller regularly demands or accepts prepayments for maintenance;
779.90(3)
(3) The seller engages in a type of business that generally requests or demands prepayment for maintenance; or
779.90 History
History: 1977 c. 296;
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.90.
779.91
779.91
Discharge of lien. 779.91(1)(1) A prepaid maintenance lien is discharged by:
779.91(1)(a)
(a) Returning the amount of the prepayment to the customer who made the prepayment;
779.91(1)(b)
(b) The expiration of the time period for the performance of all contract or other obligations secured by the prepayment; or
779.91(2)
(2) Upon discharge of a prepaid maintenance lien, any customer who filed the lien as permitted in
s. 779.89 is subject to the requirements of
s. 409.404.
779.91 History
History: 1977 c. 296;
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.91.
779.92
779.92
Enforceability of lien. A prepaid maintenance lien is enforceable from the time it attaches until it is discharged. Any enforcement and foreclosure of a prepaid maintenance lien shall be in one civil action and shall be against the proceeds of the escrow account.
779.92 History
History: 1977 c. 296;
1979 c. 32 s.
57; Stats. 1979 s. 779.92.
779.93
779.93
Duties of the department of agriculture, trade and consumer protection. 779.93(1)
(1) The department of agriculture, trade and consumer protection shall investigate violations of this subchapter and attempts to circumvent this subchapter. The department of agriculture, trade and consumer protection may subpoena persons and records to facilitate its investigations, and may enforce compliance with such subpoenas as provided in
s. 885.12.
779.93(2)
(2) The department of agriculture, trade and consumer protection may in behalf of the state or in behalf of any person who holds a prepaid maintenance lien:
779.93(2)(a)
(a) Bring an action in any court of competent jurisdiction to enforce and foreclose a prepaid maintenance lien under
s. 779.92.
779.93(2)(b)
(b) Bring an action for temporary or permanent injunctive or other relief in any court of competent jurisdiction for any violation of this chapter or attempt to circumvent this chapter. The court may in its discretion, prior to the entry of final judgment, award restitution to any customer suffering loss because of violations of this subchapter if proof of that loss is submitted to the satisfaction of the court.
779.93(2)(c)
(c) Bring an action in any court of competent jurisdiction for recovery of civil forfeitures against any seller who violates this subchapter.
779.93 History
History: 1977 c. 296;
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.93;
1995 a. 27.
779.94(1)(1)
Generally. A person who violates this subchapter shall forfeit not less than $100 nor more than $10,000 for each violation.
779.94(2)
(2) Misuse of escrow funds. The use of the proceeds in an escrow account by a seller for any purpose prior to the discharge of the prepaid maintenance lien is theft by the seller and is punishable under
s. 943.20. If the seller is a corporation, such misuse is also deemed theft by any officer, director or agent of the corporation responsible for the misappropriation. Any of the misappropriated proceeds which have been received as salary, dividend, loan repayment, capital distribution or otherwise by any shareholder of the corporation not responsible for the misappropriation is a civil liability of the shareholder and may be recovered and restored to the escrow account by action brought by any interested party.
779.94 History
History: 1977 c. 296;
1979 c. 32 s.
57; Stats. 1979 s. 779.94.
FEDERAL LIEN REGISTRATION
779.97
779.97
Uniform federal lien registration act. 779.97(1)
(1)
Scope. This section applies only to:
779.97(1)(b)
(b) Other federal liens, if any act of congress or any regulation adopted under an act of congress requires or permits notices of such liens to be filed in the same manner as notices of federal tax liens.
779.97(2)(a)(a) Notices of liens, certificates and other notices affecting federal tax liens or other federal liens shall be filed under this section.
779.97(2)(b)
(b) Notices of liens upon real property for obligations payable to the United States, and certificates and notices affecting the liens shall be filed in the office of the register of deeds of the county in which real property subject to the liens is situated.
779.97(2)(c)
(c) Notices of liens upon personal property, whether tangible or intangible, for obligations payable to the United States and certificates and notices affecting the liens shall be filed as follows:
779.97(2)(c)1.
1. If the person against whose interest the lien applies is a partnership or a corporation, as defined in
26 USC 7701 (a) (2) and (3), whose principal executive office is in this state, with the department of financial institutions.
779.97(2)(c)2.
2. If the person against whose interest the lien applies is a trust not covered under
subd. 1., with the department of financial institutions.
779.97(2)(c)3.
3. If the person against whose interest the lien applies is the estate of a decedent, with the department of financial institutions.
779.97(2)(c)4.
4. In all other cases in the office of the register of deeds of the county where the person against whose interest the lien applies resides at the time of filing of the notice of lien.
779.97(3)
(3) Execution of notices and certificates. Certification of notices of liens, certificates or other notices affecting federal liens by the secretary of the U.S. treasury, by the secretary's designee or by any other official or entity of the United States responsible for filing or certifying notice of any other lien entitles them to be filed and no other attestation, certification or acknowledgment is necessary.
779.97(4)(a)(a) If a notice of federal tax lien or a notice of revocation of a certificate of release is presented to the filing officer who is:
779.97(4)(a)1.
1. With the department of financial institutions, the filing officer shall cause the notice to be marked, held and indexed in accordance with
s. 409.403 (4) as if the notice were a financing statement within the meaning of
chs. 401 to
411; or
779.97(4)(a)2.
2. Any other officer described in
sub. (2), the officer shall endorse thereon his or her identification and the date and time of receipt and forthwith file it alphabetically or enter it in an alphabetical index showing the name and address of the person named in the notice, the date and time of receipt, the title and address of the officer or entity certifying the lien, and the total amount appearing on the notice of lien.
779.97(4)(b)1.1. If a refiling of a notice of lien is presented to the department of financial institutions for filing, the filing officer shall cause the refiled notice of federal lien to be marked, held and indexed in accordance with
s. 409.403 as if the refiling were a continuation statement within the meaning of
chs. 401 to
411, except that the time period in
par. (d) shall apply instead of the time period in
s. 409.403 (2) and
(3).
779.97(4)(b)2.
2. If a certificate of release is presented to the department of financial institutions for filing, the filing officer shall cause the certificate to be marked, held and indexed in accordance with
s. 409.404 as if the certificate were a termination statement within the meaning of
chs. 401 to
411, and the filing officer may remove the notice of federal lien and any related refiling of a notice of lien, certificate of nonattachment, discharge or subordination from the files at any time after receipt of the certificate of release, but the department of financial institutions shall keep the certificate of release or a microfilm or other photographic record or optical disk or electronic record of the certificate of release in a file, separate from those containing currently effective notices of liens, for a period of 30 years after the date of filing of the certificate of release.
779.97(4)(b)3.
3. If a certificate of discharge is presented to the department of financial institutions for filing, the filing officer shall cause the certificate to be marked, held and indexed as if the certificate were a release of collateral within the meaning of
chs. 401 to
411.
779.97(4)(b)4.
4. If a certificate of nonattachment or subordination of any lien is presented to the department of financial institutions for filing, the filing officer shall cause the certificate to be marked, held and indexed as if the certificate were an amendment within the meaning of
chs. 401 to
411.
779.97(4)(c)1.1. If a refiled notice of federal lien or a certificate of nonattachment, discharge or subordination is presented for filing to any other filing officer specified in
sub. (2), the officer shall permanently attach the refiled notice or the certificate to the original notice of lien and shall enter the refiled notice or certificate with the date of filing in any alphabetical federal lien index on the line where the original notice of lien is entered.
779.97(4)(c)2.
2. If a certificate of release is presented for filing with any other filing officer specified in
sub. (2), the officer shall enter the certificate with the date of filing in any alphabetical federal lien index on the line where the original notice of lien is entered and may then remove the notice of federal lien and any related refiling of a notice of lien, certificate of nonattachment, discharge or subordination from the files, provided that the officer shall keep the certificate of release or a microfilm or other photographic record, or in the case of the department of financial institutions, or a register of deeds if authorized under
s. 59.43 (4), a microfilm or other photographic record or optical disk or electronic record, of the certificate of release in a file, separate from those containing currently effective notices of federal liens, for a period of 30 years after the date of filing of the certificate of release.
779.97(4)(d)
(d) Unless a refiling of a notice of lien is presented to a filing officer for filing within 11 years and 60 days after the date on which a notice of lien or the latest refiling of a notice of that lien is filed with that officer, the filing officer may remove the notice of federal lien and any related refiling of a notice of lien, certificate of nonattachment, discharge or subordination from the files. Any refiling of a notice of lien presented to a filing officer after such removal shall be marked, held and indexed as though the document were a notice of federal lien instead of a refiling of a notice of lien.
779.97(4)(e)
(e) Upon request of any person, the filing officer shall issue a certificate showing whether there is on file, on the date and hour stated therein, any notice of federal lien or any related refiling of a notice of lien, certificate of nonattachment, discharge or subordination filed on or after February 1, 1968, naming a particular person, and if a notice or certificate is on file, giving the date and hour of filing of each notice or certificate. The fee for a certificate is $2. Upon request the filing officer shall furnish a copy of any notice of federal lien or notice or certificate affecting a federal lien for a fee of 50 cents per page.
779.97(5)(a)(a) The fee for filing and indexing each notice of lien or certificate or notice affecting the lien is one of the following:
779.97(5)(a)2.
2. For a lien on tangible and intangible personal property, $10.
779.97(5)(a)3.
3. For a certificate of discharge or subordination, $10.
779.97(5)(a)4.
4. For all other notices, including a certificate of release or nonattachment, $10.
779.97(5)(b)
(b) The officer shall bill the district directors of internal revenue on a monthly basis for fees for documents filed by them.
