846.103
846.103
Foreclosures of commercial properties and multifamily residences. 846.103(1)
(1) No foreclosure sale involving real property other than a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization may be held until the expiration of 6 months from the date when judgment is entered except a sale under
sub. (2). Notice of the time and place of sale shall be given under
ss. 815.31 and
846.16 and may be given within the 6-month period except that the first printing of the notice shall not be made less than 4 months after the date when judgment is entered.
846.103(2)
(2) If the mortgagor of real property other than a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization has agreed in writing at the time of the execution of the mortgage to the provisions of this section, the plaintiff in a foreclosure action of a mortgage, which mortgage is recorded subsequent to May 12, 1978, may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage, and to consent that the mortgagor, unless he or she abandons the property, may remain in possession of the mortgaged property and be entitled to all rents, issues and profits therefrom to the date of confirmation of the sale by the court. When the plaintiff so elects, judgment shall be entered as provided in this chapter, except that no judgment for deficiency may be ordered nor separately rendered against any party who is personally liable for the debt secured by the mortgage and the sale of the mortgaged premises shall be made upon the expiration of 3 months from the date when such judgment is entered. Notice of the time and place of sale shall be given under
ss. 815.31 and
846.16 and may be given within the 3-month period except that first printing of the notice shall not be made less than one month after the date when judgment is entered.
846.103 History
History: 1977 c. 304.
846.103 Annotation
Application of reduced redemption period to mortgage executed before enactment of
Chapter 304, laws of 1977, would be unconstitutional impairment of contract. Burke v. E. L. C. Investors, Inc. 110 W (2d) 406, 329 NW (2d) 259 (Ct. App. 1982).
846.11
846.11
Homestead, how sold. If any defendant appear and answer that any portion of the mortgaged premises is an exempt homestead the court shall ascertain whether such be the fact, and if so whether the part of the mortgaged premises not included in the exempt homestead can be sold separately therefrom without injury to the interests of the parties, and in that case shall direct in the judgment that the exempt homestead shall not be sold until all the other mortgaged lands have been sold.
846.11 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.11; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.11.
846.11 Annotation
This statute gives the option to the mortgagor to insist that, where a mortgage covers both homestead and nonhomestead property, the nonhomestead property be sold first. That issue was irrelevant in the instant case, since the entire mortgaged property was homestead. Anchor Savings & Loan Asso. v. Week, 62 W (2d) 169, 213 NW (2d) 737.
846.11 Annotation
This section is inapplicable where separate mortgages cover homestead and nonhomestead property. Valley Bank v. Jennings, 198 W (2d) 857, 544 NW (2d) 243 (Ct. App. 1995).
846.11 Annotation
Federal Farmers Home Administration is not subject to state exemption laws in the foreclosure of its mortgages. U.S. v. Einum, 821 F Supp. 1283 (1993).
846.12
846.12
Interest; waste. The amount adjudged due shall draw interest at the rate provided to be paid on the mortgage debt, but shall not exceed the minimum rate prevailing immediately prior to the default on which the foreclosure is based, until the date of sale or payment, and all the instalments which shall become due after the date of such judgment shall draw interest at the same rate from the time the same become due. The judgment may enjoin the defendants and all persons claiming under them from committing waste or doing any act that may impair the value of the mortgaged premises.
846.12 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.12; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.12.
846.13
846.13
Redemption from and satisfaction of judgment. The mortgagor, the mortgagor's heirs, personal representatives or assigns may redeem the mortgaged premises at any time before the sale by paying to the clerk of the court in which the judgment was rendered, or to the plaintiff, or any assignee thereof, the amount of such judgment, interest thereon and costs, and any costs subsequent to such judgment, and any taxes paid by the plaintiff subsequent to the judgment upon the mortgaged premises, with interest thereon from the date of payment, at the same rate. On payment to such clerk or on filing the receipt of the plaintiff or the plaintiff's assigns for such payment in the office of said clerk the clerk shall thereupon discharge such judgment, and a certificate of such discharge, duly recorded in the office of the register of deeds, shall discharge such mortgage of record to the extent of the sum so paid.
846.13 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.13; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.13;
1993 a. 486.
846.13 Cross-reference
Cross-reference: See s.
846.25, relative to discharge after foreclosure.
846.13 Annotation
Bankruptcy court reduction of mortgage lien does not affect payment required for redemption. Hobl v. Lord, 162 W (2d) 226, 470 NW (2d) 265, (1991).
846.14
846.14
Redemption of part. In case the mortgagor, the mortgagor's heirs, representatives or assigns shall desire to pay a portion of such judgment, taxes, interest and costs, so as to relieve any distinct lot or parcel of the premises which can be sold separately under such judgment from the lien thereof and of such mortgage thereon, the court, on application of such person and on notice to the parties to the action, may, if the amount to be paid therefor is not agreed upon, ascertain and adjudge the proportion of such judgment, taxes, interest and costs to be paid for the purpose aforesaid; and when the amount so adjudged shall be paid as aforesaid it shall relieve such distinct lot or parcel from such judgment and the lien of such mortgage thereon and shall satisfy such judgment to the amount so paid. Any heir, devisee, grantee or assignee of the mortgagor, owning an undivided interest in the mortgaged premises, subject to the lien of the mortgage, may redeem such undivided interest from such judgment and the lien of the mortgage thereon by paying as aforesaid a sum that will bear the same proportion to the whole of such judgment, taxes, costs and interest as the interest proposed to be redeemed bears to the whole of the mortgaged premises.
846.14 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.14; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.14;
1993 a. 486.
846.15
846.15
Plaintiff's rights acquired by junior lienor. Any person having a junior lien upon the mortgaged premises or any part thereof or interest therein, may, at any time before such sale, pay to the clerk of court, or the plaintiff or the plaintiff's assignee, the amount of such judgment, taxes, interest and costs, and costs subsequent to judgment, and shall thereupon be subrogated to all the rights of the plaintiff as to such judgment.
846.15 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.15; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.15;
1993 a. 486.
846.16
846.16
Notice and report of sale. 846.16(1)
(1) The sheriff or referee who makes sale of mortgaged premises, under a judgment therefor, shall give notice of the time and place of sale in the manner provided by law for the sale of real estate upon execution or in such other manner as the court shall in the judgment direct; where the department of veterans affairs is also a party in the foreclosure action, the judgment shall direct that notice of sale be given by registered mail, return receipt requested, to the department at Madison, Wisconsin, at least 3 weeks prior to the date of sale, but such requirement does not affect any other provision as to giving notice of sale. The sheriff or referee shall, within 10 days thereafter, file with the clerk of the court a report of the sale, and shall also immediately after the sale first deduct any fee due under
s. 77.22 (1); then deposit that fee, a return under
s. 77.22 and the deed with the clerk of the court for transmittal to the register of deeds; then deduct the costs and expenses of the sale, unless the court orders otherwise, and then deposit with the clerk of the court the proceeds of the sale ordered by the court. The sheriff may accept from the purchaser at such sale as a deposit or down payment upon the same not less than $100, in which case such amount shall be so deposited with the clerk of the court as above provided, and the balance of the sale price shall be paid to the clerk by the purchaser at such sale upon the confirmation thereof. If the highest bid is less than $100, the whole amount thereof shall be so deposited.
846.16(2)
(2) If the judgment creditor is the purchaser the judgment creditor may give his or her receipt to the sheriff or referee for any sum not exceeding the judgment creditor's judgment and such receipt shall be deemed a down payment, but in every case the purchaser shall pay the cost of sale; and if the sum due the creditor is less than the purchase price, the creditor shall pay the difference at the time of sale.
846.16 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.16; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.16;
1989 a. 31;
1993 a. 486.
846.162
846.162
Disposition of surplus. If there shall be any surplus paid into court by the sheriff or referee, any party to the action or any person not a party who had a lien on the mortgaged premises at the time of sale, may file with the clerk of court into which the surplus was paid, a notice stating that the party or person is entitled to such surplus money or some part thereof, together with the nature and extent of the party's or person's claim. The court shall determine the rights of all persons in such surplus fund by reference or by testimony taken in open court, but no such hearing shall be had in court or before a referee except upon 8 days' notice to all persons that have appeared in the action or filed notice of claim to such surplus money. If any such claimant shall not have appeared by attorney, notice of such hearing may be served by mail directed to the claimant at the place of the claimant's residence as stated in the claimant's notice of claim.
846.162 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.162; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.162;
1993 a. 486.
846.162 Annotation
This section is procedural; it creates no substantive rights. First Wisconsin Trust Co. v. Rosen, 143 W (2d) 468, 422 NW (2d) 128 (Ct. App. 1988).
846.165
846.165
Application for confirmation of sale and for deficiency judgment. 846.165(1)(1) No sale on a judgment of mortgage foreclosure shall be confirmed unless 5 days' notice has been given to all parties that have appeared in the action. Such notice shall be given either personally or by registered mail directed to the last-known post-office address, mailed at least 5 days prior to the date when the motion for confirmation is to be heard, if any post-office address is known; if not known, mailing may be dispensed with but an affidavit shall be filed with the court stating that the address is not known, and the notice shall state, in addition to other matter required by law, the amount of the judgment, the amount realized upon the sale, the amount for which personal judgment will be sought against the several parties naming them, and the time and place of hearing.
846.165(2)
(2) In case the mortgaged premises sell for less than the amount due and to become due on the mortgage debt and costs of sale, there shall be no presumption that such premises sold for their fair value and no sale shall be confirmed and judgment for deficiency rendered, until the court is satisfied that the fair value of the premises sold has been credited on the mortgage debt, interest and costs.
846.165 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.165; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.165.
846.165 Cross-reference
Cross-reference: For tardy confirmation of sale, after 6 years, see s.
846.18.
846.165 Annotation
Court should determine "fair value" under (2) even though bid does not shock court's conscience. First Wis. Nat. Bank of Oshkosh v. KSW Inv. 71 W (2d) 359, 238 NW (2d) 123.
846.165 Annotation
See note to 806.07, citing Family Savings and Loan Asso. v. Barkwood Landscaping Co., Inc. 93 W (2d) 190, 286 NW (2d) 581 (1980).
846.165 Annotation
See note to 846.10, citing Shuput v. Lauer, 109 W (2d) 164, 325 NW (2d) 321 (1982).
846.165 Annotation
See note to 846.10, citing Crown Life Ins. Co. v. LaBonte, 111 W (2d) 26, 330 NW (2d) 201 (1983).
846.165 Annotation
"Fair value" under (2) is determined by property's sale value; court may consider costs of selling, holding or carrying the property only to extent they affect sale value. First Financial Sav. Ass'n v. Spranger, 156 W (2d) 440, 456 NW (2d) 897 (Ct. App. 1990).
846.17
846.17
Deed, execution and effect of. Upon any such sale being made the sheriff or referee making the same, on compliance with its terms, shall make and execute to the purchaser, the purchaser's assigns or personal representatives, a deed of the premises sold, setting forth each parcel of land sold to the purchaser and the sum paid therefor, which deed, upon confirmation of such sale, shall vest in the purchaser, the purchaser's assigns or personal representatives, all the right, title and interest of the mortgagor, the mortgagor's heirs, personal representatives and assigns in and to the premises sold and shall be a bar to all claim, right of equity of redemption therein, of and against the parties to such action, their heirs and personal representatives, and also against all persons claiming under them subsequent to the filing of the notice of the pendency of the action in which such judgment was rendered; and the purchaser, the purchaser's heirs or assigns shall be let into the possession of the premises so sold on production of such deed or a duly certified copy thereof, and the court may, if necessary, issue a writ of assistance to deliver such possession. Such deed or deeds so made and executed by the sheriff as above set forth shall be forthwith delivered by the sheriff to the clerk of the court to be held by the clerk until the confirmation of the sale, and upon the confirmation thereof the clerk of the court shall thereupon pay to the parties entitled thereto, or to their attorneys, the proceeds of the sale, and shall deliver to the purchaser, the purchaser's assigns or personal representatives, at the sale such deed upon compliance by such purchaser with the terms of such sale, and the payment of any balance of the sale price to be paid. In the event of the failure of such purchaser to pay any part of the purchase price remaining to be paid within 10 days after the confirmation of such sale, the amount so deposited shall be forfeited and paid to the parties who would be entitled to the proceeds of such sale as ordered by the court, and a resale shall be had of said premises, and in such event such deed so executed to the defaulting purchaser shall be destroyed by said clerk, and shall be of no effect. In the event that such sale is not confirmed by the court, the clerk shall forthwith refund to the purchaser at such sale the amount so paid or deposited by the purchaser, and shall likewise destroy such sheriff's deed so executed, and the same shall be of no effect, and a resale of the premises shall be had upon due notice thereof.
846.17 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.17; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.17;
1993 a. 486.
846.18
846.18
Tardy confirmation of sale. In all cases where a mortgage foreclosure sale has been made but not confirmed and the purchaser or the purchaser's successor or assign has taken possession of the land by virtue of said sale, and occupied it for 6 years from and after said sale, the purchaser may apply for and the court may enter an order confirming said foreclosure sale with the same force and effect as if said confirmation was made as otherwise provided by law.
846.18 History
History: 1973 c. 189 s.
7; Stats. 1973 s. 816.18; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.18;
1993 a. 486.
846.25
846.25
Discharge after foreclosure. After a mortgage has been foreclosed by action and the judgment and costs have been paid and satisfaction of the mortgage entered upon the court record, the clerk of circuit court, on request, shall sign a certificate attesting to those facts, which certificate is entitled to record.
846.25 History
History: Sup. Ct. Order, 67 W (2d) 585, 768 (1975);
1995 a. 224.
846.25 Cross-reference
Cross-reference: For redemption from mortgage foreclosure, prior to sale, see s.
846.13.
846.30
846.30
Redemption period for land contracts. If a court finds that the purchaser under a land contract is obligated to make certain payments under that land contract, that the purchaser has failed to make the required payments and that the vendor is entitled to a judgment of strict foreclosure, the court shall set a redemption period of at least 7 working days from the date of the judgment hearing or, if there is no hearing, from the date of the entry of the judgment order. No judgment of strict foreclosure is final until the court enters an order after the expiration of the redemption period confirming that no redemption has occurred and making the judgment of strict foreclosure absolute.
846.30 History
History: 1995 a. 250.
