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.
425.307 Annotation
Regardless of the reason the 6-year limitations period was included, the language of the statute makes it clear that the 6-year deadline is not a way for a plaintiff to avoid the deadlines in the first part of the statute. That part of the statute says that a lawsuit “shall be commenced" within one or two years of certain events. In other words, if the plaintiff is a customer and he cannot meet the limitations periods in the first part of the statute, the plaintiff cannot rely on the last part of the statute to extend his limitations period. McDonough v. WESTconsin Credit Union,
97 F. Supp. 3d 1040 (2015).
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:
425.308(2)(a)
(a) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause;
425.308(2)(b)
(b) The customary charges of the bar for similar services;
425.308(2)(c)
(c) The amount involved in the controversy and the benefits resulting to the client or clients from the services;
425.308(2)(d)
(d) The contingency or the certainty of the compensation;
425.308(2)(e)
(e) The character of the employment, whether casual or for an established and constant client; and
425.308(2)(f)
(f) The amount of the costs and expenses reasonably advanced by the attorney in the prosecution or defense of the action.
425.308 Annotation
Attorney fees awarded under this section often far exceed the amount of recovery. First Wisconsin National Bank v. Nicolaou,
113 Wis. 2d 524,
335 N.W.2d 390 (1983).
425.308 Annotation
Awards of attorney fees and costs are limited to instances in which a customer has shown that a creditor has not “fully complied with chs. 421 to 427." Suburban State Bank v. Squires,
145 Wis. 2d 445,
427 N.W.2d 393 (Ct. App. 1988).
425.308 Annotation
A prevailing party is one who succeeds on any significant issue and is entitled to recover fees relating to successfully litigated issues. Footville State Bank v. Harvell,
146 Wis. 2d 524,
432 N.W.2d 122 (Ct. App. 1988).
425.308 Annotation
Although voluntarily dismissed, prosecution of improperly venued actions violated the consumer act, and the defendants were prevailing parties under s. 425.308 entitled to attorney fees. Community Credit Plan, Inc. v. Johnson,
228 Wis. 2d 30,
596 N.W.2d 799 (1999),
97-0574.
425.308 Annotation
A party moving for attorney's fees and costs under the Wisconsin Consumer Act (WCA) must show both a significant benefit in litigation and a violation of the WCA on the part of the non-moving party. When a claim for deficiency judgment was dismissed without costs and without prejudice, no violation of the WCA was shown. Credit Acceptance Corporation v. Woodard,
2012 WI App 43,
340 Wis. 2d 548,
812 N.W.2d 525,
11-0135.
425.309
425.309
Class actions. Class actions are governed by s.
426.110.
425.309 History
History: 1971 c. 239.
425.310
425.310
Liability of corporate officers. Damages or penalties awarded to a customer or the administrator for a violation of chs.
421 to
427 which cannot be collected from a corporation by reason of its insolvency or dissolution shall be recoverable against the principal agents of the corporation including, but not limited to, officers, managers and assistant managers who knew of, should have known of or willfully participated in such a violation, if a meaningful part of the corporation's activities were in violation of chs.
421 to
427.
425.310 History
History: 1971 c. 239;
1979 c. 89.
425.311
425.311
Evidence of violation. Sections
402.202 and
411.202 and any other statute restricting admissibility of parol evidence shall be inoperative to exclude or limit the admissibility of evidence of an act or practice in violation of chs.
421 to
427.
CRIMINAL PENALTIES
425.401
425.401
Willful violations: misdemeanor. 425.401(1)(1)
Except as provided in sub.
(2), a person who willfully and knowingly engages in any conduct or practice in violation of chs.
421 to
427 may be fined not more than $2,000.
