421.104
421.104
Construction against implied repeal. Chapters 421 to
427 being a general act intended as a unified coverage of the subject matter of such chapters, no part of
chs. 421 to
427 shall be deemed to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.
421.104 History
History: 1971 c. 239;
1979 c. 89.
421.106
421.106
Settlement of claims; agreement to forego rights; waiver. 421.106(1)(1) Except as otherwise provided in
chs. 421 to
427, a customer may not waive or agree to forego rights or benefits under
chs. 421 to
427.
421.106(2)
(2) A claim by a customer against a merchant for an excess charge, other violation of
chs. 421 to
427 or civil penalty, or a claim against a customer for default or breach of a duty imposed by
chs. 421 to
427, if disputed in good faith, may be settled by agreement.
421.106(3)
(3) A claim, whether or not disputed, against a customer may be settled for less value than the amount claimed.
421.106(4)
(4) A settlement in which the customer waives or agrees to forego rights or benefits under
chs. 421 to
427 is invalid if the court as a matter of law finds the settlement to be unconscionable at the time it was made. In this regard the court may consider the competence of the customer as measured by his or her education, ability to speak and read the language of the contract, and his or her prior consumer experience; any deception or coercion practiced upon the customer; the nature and extent of the legal advice received by the customer; and the value of the consideration.
421.106 History
History: 1971 c. 239;
1979 c. 89.
421.106 Annotation
An arbitration provision explicitly prohibiting a consumer from proceeding as part of a class was unconscionable. Permitting predispute waivers of class proceedings would be contrary to the Wisconsin Consumer Act's purpose of protecting consumers from unfair practices. Cottonwood Financial, LTD v. Estes,
2010 WI App 75,
325 Wis. 2d 749,
784 N.W.2d 726,
09-0760.
421.107
421.107
Effect of chapters 421 to 427 on powers of organizations. 421.107(1)(1) Except as specifically provided,
chs. 421 to
427 prescribe maximum charges for all consumer credit transactions and displace existing limitations on the powers of creditors based on maximum charges.
421.107(2)
(2) Except as specifically provided, with respect to sellers of goods or services, lessors of goods, small loan companies, licensed lenders, consumer and sales finance companies and commercial banks and trust companies,
chs. 421 to
427 displace existing limitations on their powers based solely on amount or duration of credit.
421.107(3)
(3) Except as provided in
sub. (1),
chs. 421 to
427 do not displace limitations on powers of credit unions, savings banks, savings and loan associations or other thrift institutions whether organized for the profit of shareholders or as mutual organizations.
421.107(4)(a)
(a) Limitations on powers of supervised financial organizations (
s. 421.301 (43)), with respect to the amount of a loan to a single borrower, the ratio of a loan to the value of collateral, the duration of a loan secured by an interest in land or other similar restrictions designed to protect deposits; or
421.107(4)(b)
(b) Limitations on powers an organization is authorized to exercise under the laws of this state or the United States.
421.107 History
History: 1971 c. 239;
1979 c. 89.
421.108
421.108
Obligation of good faith. Every agreement or duty within
chs. 421 to
427 imposes an obligation of good faith in its performance or enforcement. "Good faith" means honesty in fact in the conduct or transaction concerned and the observance of reasonable commercial standards of fair dealing.
421.108 History
History: 1971 c. 239;
1979 c. 89.
SCOPE AND JURISDICTION
421.201
421.201
Territorial application. 421.201(1)
(1) Except as otherwise provided in this section,
chs. 421 to
427 apply to consumer transactions made in this state and to modifications including refinancings, consolidations and deferrals, made in this state, of consumer credit transactions wherever made.
421.201(2)
(2) For the purposes of
chs. 421 to
427, a consumer transaction or modification of a consumer transaction is made in this state if:
421.201(2)(a)
(a) A writing signed by the customer and evidencing the obligation or an offer of the customer is received by the merchant in this state; or
421.201(2)(b)
(b) The merchant induces the customer who is a resident of this state to enter into the transaction by face-to-face solicitation or by mail or telephone solicitation directed to the particular customer in this state.
421.201(3)
(3) With respect to a transaction pursuant to an open-end credit plan,
chs. 421 to
427 apply if the customer is a resident of this state and the open-end creditor or a merchant honoring a credit card issued by the open-end creditor, is a resident of this state or furnishes, mails or delivers the goods, services or credit to a resident of this state while the customer is within this state or receives a writing signed by the customer and evidencing the transaction in this state.
421.201(4)
(4) Chapter 427 applies to any debt collection activity in this state, including debt collection by means of mail or telephone communications directed to customers in this state.
421.201(5)
(5) Subchapters I and
II of ch. 425, relating to creditors' remedies, including applicable penalties, apply to actions or other proceedings brought in this state to enforce rights arising from consumer transactions or extortionate extensions of credit, wherever made, but conduct, action or proceedings to recover collateral or goods subject to a motor vehicle consumer lease shall be governed by the law of the state where the collateral or goods subject to a motor vehicle consumer lease are located at the time of recovery unless the collateral or goods subject to a motor vehicle consumer lease are owned by a Wisconsin resident, who has removed the collateral or goods from this state only for purposes of transportation to or use in the resident's employment or for temporary periods which do not exceed 15 days.
421.201(6)
(6) If a consumer transaction, or modification thereof, is made in another state with a customer who is a resident of this state when the transaction or modification is made, the following provisions apply as though the transaction occurred in this state:
421.201(6)(a)
(a) A creditor, or assignee of the creditor's rights, may collect through actions or other proceedings charges only to the extent permitted by
ch. 422; and
421.201(6)(b)
(b) A merchant may not enforce rights against the customer to the extent that the provisions of the agreement violate
subch. IV of ch. 422 or
ch. 423.
421.201(7)
(7) Except as provided in
sub. (4) or
(5), a consumer transaction or modification thereof, made in another state with a customer who was not a resident of this state when the consumer transaction or modification was made, is valid and enforceable in this state according to its terms to the extent that it is valid and enforceable under the laws of the state applicable to the transaction.
421.201(8)
(8) For the purposes of
chs. 421 to
427, the residence of a customer is the address given by the customer as his or her residence in any writing signed by the customer in connection with a consumer transaction. The given address is presumed to be unchanged until the merchant knows or has reason to know of a new or different address.
421.201(9)
(9) Notwithstanding other provisions of this section:
421.201(9)(a)
(a) Except as provided in
sub. (4) or
(5),
chs. 421 to
427 do not apply if the customer is not a resident of this state at the time of a consumer transaction and the parties then agree that the law of his or her residence applies; and
421.201(9)(b)
(b) Chapters 421 to
427 apply if the customer is a resident of this state at the time of a consumer transaction and the parties then agree that the law of this state applies.
421.201(10)
(10) Except as provided in
sub. (9), the following terms of a writing executed by a customer are invalid with respect to consumer transactions, or modifications thereof, to which
chs. 421 to
427 apply:
421.201(10)(b)
(b) That the customer consents to the jurisdiction of another state; and
421.201 Annotation
Notwithstanding sub. (5), s. 425.206 governed repossession outside of the state when a contract provided for enforcement under the "internal law" of Wisconsin. First Wisconsin National Bank of Madison v. Nicolaou,
85 Wis. 2d 393,
270 N.W.2d 582 (Ct. App. 1978).
421.201 Annotation
A corporation that repossessed the vehicle outside of the state was not subject to the Wisconsin police power. Patrin v. Chrysler Credit Corp.
530 F. Supp. 736 (1982).
421.202
421.202
Exclusions. Chapters 421 to
427 do not apply to any of the following:
421.202(3)
(3) Charges for delayed payment and any discount allowed for early payment in transactions under public utility or common carrier tariffs if a subdivision or agency of this state or of the United States regulates such charges or discounts, or if such charges or discounts are made in connection with the furnishing of electric service by an electric cooperative organized and operating on a nonprofit basis under
ch. 185.
421.202(4)
(4) The ceilings on rates and charges of a licensed pawnbroker if these ceilings are established by statute or ordinance.
421.202(5)
(5) The sale of insurance by an insurer, except as otherwise provided in
ch. 424.
421.202(6)
(6) Consumer credit transactions in which the amount financed exceeds $25,000, motor vehicle consumer leases in which the total lease obligation exceeds $25,000 or other consumer transactions in which the cash price exceeds $25,000.
421.202(7)
(7) Transactions secured by a first lien real estate mortgage or equivalent security interest.
421.202(8)
(8) Transactions in securities accounts or securities transactions by or with a broker-dealer, as defined in
s. 551.102 (4), registered under
ch. 551.
421.202(10)
(10) Transactions that are primarily for an agricultural purpose, except that this subsection does not exclude transactions that are primarily for an agricultural purpose from
ch. 427 and except that this subsection does not exclude credit transactions that are primarily for an agricultural purpose from
s. 422.210.
421.202 Annotation
Consumer leases are subject to the exclusionary provision of sub. (6). "Amount financed" means the purchase price or cash price for property leased. American Industrial Leasing Co. v. Geiger,
118 Wis. 2d 140,
345 N.W.2d 527 (Ct. App. 1984).
421.203
421.203
Partial exclusion for governmentally insured or guaranteed transactions. 421.203(1)
(1) Consumer credit transactions, not governed by
ch. 428, which are made, insured or guaranteed by the federal government or any agency thereof, or by any federal instrumentality chartered under the federal farm credit act of 1971 (
P.L. 92-181; 85 stats. 583;
12 USC 2001 et seq.), or by the department of veterans affairs shall be subject to only those provisions set forth in
sub. (2).
DEFINITIONS
421.301
421.301
General definitions. In addition to definitions appearing in
chs. 422 to
427, in
chs. 421 to
427:
421.301(1)
(1) "Actuarial method" means the method, defined by rules adopted by the administrator, of allocating payments made on a debt between amount financed and finance charge, pursuant to which a payment is applied first to the accumulated finance charge and the balance is applied to the unpaid amount financed.
421.301(3)
(3) "Agreement" means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance.
Sections 402.202 and
411.202 and any other provisions on parol or extrinsic evidence shall be inoperative to exclude or limit the admissibility of evidence relating to agreements governed by
chs. 421 to
427.
421.301(4)
(4) "Agricultural purpose" means a purpose related to the production, harvest, exhibition, marketing, transportation, processing or manufacture of agricultural products by a person, other than an organization, which cultivates, plants, propagates or nurtures those agricultural products. "Agricultural products" includes agricultural, horticultural, viticultural and dairy products, livestock, wildlife, poultry, bees, forest products, fish and shellfish, and any products thereof, including processed and manufactured products, and any and all products raised or produced on farms and any processed or manufactured products thereof.
421.301(5)
(5) "Amount financed" in a consumer credit transaction means the total of the following items from which any prepaid finance charge or required deposit balance has been excluded:
421.301(5)(a)
(a) In a consumer credit sale, the cash price of the real or personal property or services, less the amount of any down payment whether made in cash or in property traded in, or, in a consumer loan, the amount paid to, receivable by or paid or payable to the customer or to another person in the customer's behalf;
421.301(5)(b)
(b) In a consumer credit sale, the amount actually paid or to be paid by the creditor pursuant to an agreement with the customer to discharge a security interest in or a lien on property traded in; and
421.301(5)(c)1.
1. Any applicable sales, use, excise or documentary stamp taxes;
421.301(5)(c)2.
2. Amounts actually paid or to be paid by the creditor for registration, certificate of title or license fees; and
421.301(6)
(6) "Business day" means any calendar day except Saturday and Sunday, and except the following business holidays: New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving and Christmas.
421.301(7)
(7) "Cash price" means the price at which property or services are offered, in the ordinary course of business, for sale for cash, and may include:
421.301(7)(a)
(a) The cash price of accessories or services related to the sale such as delivery, installation, alterations, modifications and improvements; and
421.301(8)
(8) "Conspicuous" means that the term or clause is so written that a reasonable person against whom it is to operate ought to have noticed it. Whether a term or clause is conspicuous or not is for decision by the court.
421.301(9)
(9) "Consumer credit sale" means a sale of goods, services or an interest in land to a customer on credit where the debt is payable in installments or a finance charge is imposed and includes any agreement in the form of a bailment of goods or lease of goods or real property if the bailee or lessee pays or agrees to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the goods or real property involved and it is agreed that the bailee or lessee will become, or for no other or a nominal consideration has the option to become, the owner of the goods or real property upon full compliance with the terms of the agreement.
421.301(10)
(10) "Consumer credit transaction" means a consumer transaction between a merchant and a customer in which real or personal property, services or money is acquired on credit and the customer's obligation is payable in installments or for which credit a finance charge is or may be imposed, whether such transaction is pursuant to an open-end credit plan or is a transaction involving other than open-end credit. The term includes consumer credit sales, consumer loans, consumer leases and transactions pursuant to open-end credit plans.
421.301(11)
(11) "Consumer lease" means a lease of goods which a merchant makes to a customer for a term exceeding 4 months.
421.301 Cross-reference
Cross-reference: See also s.
DFI-WCA 1.05, Wis. adm. code.
421.301(12)
(12) "Consumer loan" means a loan made by a lender to a customer which 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 other than a seller credit card.
421.301(13)
(13) "Consumer transaction" means a transaction in which one or more of the parties is a customer for purposes of that transaction.
421.301(14)
(14) "Credit" means the right granted by a creditor to a customer to defer payment of debt, to incur debt and defer its payment or to purchase goods, services or interests in land on a time price basis.
421.301(15)
(15) "Credit card" means any card, plate, merchandise certificate, letter of credit, coupon book or other like credit device existing for the purpose of obtaining money, property, labor or services on credit pursuant to an open-end credit plan.
421.301(16)
(16) "Creditor" means a merchant who regularly engages in consumer credit transactions or in arranging for the extension of consumer credit by or procuring consumer credit from 3rd persons.
