425.105(3)(a)
(a) The customer was in default on the same transaction or open-end credit plan;
425.105(3)(b)
(b) The creditor gave the customer notice of the right to cure such previous default in accordance with
s. 425.104; and
425.105(4)
(4) With respect to consumer credit transactions in which the creditor has a security interest in, and possession of, instruments or documents, as each is defined in
s. 409.102 (1), which threaten to decline speedily in value, this section does not restrict the creditor's rights to dispose of such property pursuant to
subch. VI of ch. 409 and the terms of the creditor's security agreement.
425.105 Annotation
The s. 425.105 (1) prohibition of suits except when notice is given pursuant to s. 425.104 imposes timing and content requirements for the notice. A notice that did not meet the timing requirements of ss. 425.103 (2) (a) and 425.104 (1) never gave notice "pursuant to s. 425.104." Thus suit was barred by s. 425.105 (1). Indianhead Motors v. Brooks,
2006 WI App 266,
297 Wis. 2d 821,
726 Wis. 2d 352,
06-1002.
425.106(1)(1) Except to the extent that the merchant has a valid security interest which is permitted by
chs. 421 to
427 and
429 or has a lien under
ch. 779 in such property, or where the transaction is for medical or legal services and there has been no finance charge actually imposed, the following property of the customer shall be exempt from levy, execution, sale, and other similar process in satisfaction of a judgment for an obligation arising from a consumer credit transaction:
425.106(1)(b)
(b) Clothing of the customer or his or her dependents, and the following: dining table and chairs, refrigerator, heating stove, cooking stove, radio, beds and bedding, couch and chairs, cooking utensils and kitchenware and household goods as defined in
12 CFR 227.13 (d),
12 CFR 535.1 (g) or
16 CFR 444.1 (i) consisting of furniture, appliances, one television, linens, china, crockery and personal effects including wedding rings, except works of art, electronic entertainment equipment, antiques and jewelry, to the extent a nonpossessory security interest in these household goods is prohibited under
12 CFR 227.13 (d),
12 CFR 535.2 (a) (4) or
16 CFR 444.2 (a) (4);
425.106(1)(c)
(c) Real property used as the principal residence of the customer or the customer's dependents, to the extent that the fair market value of such property, less all amounts secured by mortgages and liens outstanding against it, is $15,000 or less; and
425.106(1)(d)
(d) Earnings or other assets of the customer which are required to be paid by the customer as restitution under
s. 973.20.
425.106(2)
(2) With respect to process against marital property in satisfaction of a judgment for an obligation described under
s. 766.55 (2) (b) arising from a consumer credit transaction, each spouse is entitled to and may claim the exemptions under
sub. (1). Each spouse is entitled to one exemption under
sub. (1) (c). That exemption is limited to the specified maximum dollar amount, which may be combined with the other spouse's exemption in the same property or applied to different property included under the same exemption.
425.106(3)
(3) Nothing in this section shall be construed to displace other provisions of law which afford additional or greater protection to the customer.
425.106(4)
(4) An order or process in violation of this section is void.
425.106 Note
NOTE: As to sub. (2), see notes in
1985 Wis. Act 37, marital property trailer bill.
425.106 Annotation
A proposal for monitoring the impact of increased wage garnishment exemptions under the Wisconsin consumer act. 1974 WLR 466.
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.
425.107 Annotation
When a lender was promptly informed that a borrower had a valid disability insurance claim that would cover payments, it was an unconscionable practice to include an unpaid monthly charge that would be covered by the disability insurance in computing the unpaid balance for purposes of establishing default. Bank One Milwaukee, N.A. v. Harris,
209 Wis. 2d 412,
563 N.W.2d 543 (Ct. App. 1997),
96-0903.
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 Wis. 2d 798,
496 N.W.2d 708 (Ct. App. 1993). See also Bank One v. Ofojebe,
2005 WI App 151,
284 Wis. 2d 510,
702 N.W.2d 456,
04-0902.
425.109 Annotation
A company that purchased an overdue credit card account and brought an action to collect the amount due on it was not a "creditor" within the meaning of s. 421.301 (16) and not subject to the pleading requirements of sub. (1). Rsidue, LLC v. Michaud,
2006 WI App 164,
295 Wis. 2d 585,
721 N.W.2d 718,
05-1299.
425.109 Annotation
Even if there was a failure to comply with the pleading requirements of this section, such a failure cannot deprive a small claims court of subject matter jurisdiction and cannot render a default judgment void. Mercado v. GE Money Bank,
2009 WI App 73,
318 Wis. 2d 216,
768 N.W.2d 53,
08-1992.
425.110
425.110
No discharge from employment for garnishment. 425.110(1)(1) No employer shall discharge an employee because a merchant has subjected or attempted to subject unpaid earnings of the employee 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 employee shall recover back wages and be reinstated, if the employee files an action for such relief within 90 days of the employee'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 Wis. 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 Wis. 2d 585, 776 (1975).
425.113 Cross-reference
Cross-reference: See also s.
DFI-WCA 1.66, Wis. adm. code.
425.113 Annotation
If s. 425.113 were to be interpreted to remove a court's power to issue a body attachment for one who chooses to ignore its orders, the interpretation would cause the statute to be unconstitutional as a violation of the principle of separation of powers. Smith v. Burns,
65 Wis. 2d 638,
223 N.W.2d 562 (1974).
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
Definitions. For purposes of this chapter:
425.202(1)
(1) "Collateral" means goods subject to a security interest in favor of a merchant which secures a customer's obligations under a consumer credit transaction.
425.203
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
ss. 409.620 to
409.624, in which event the merchant shall satisfy the judgment obtained pursuant to
sub. (2); or shall dispose of the collateral pursuant to
subch. VI of ch. 409, in which event:
