Chapter 846

CHAPTER 846

REAL ESTATE FORECLOSURE

846.01   Foreclosure judgment.

846.02   Foreclosure; defendant may have assignment of mortgage.

846.04   Deficiency, judgment for.

846.05   Foreclosure for nonpayment of installment.

846.06   Sale in parcels.

846.07   Order of sale for other defaults.

846.08   Judgment for sale of whole; adjustment of parties’ rights.

846.09   Amendments as to parties; process and pleading.

846.10   Foreclosure.

846.101   Foreclosure without deficiency; 20-acre parcels.

846.102   Abandoned premises.

846.103   Foreclosures of commercial properties and multifamily residences.

846.11   Homestead, how sold.

846.12   Interest; waste.

846.13   Redemption from and satisfaction of judgment.

846.14   Redemption of part.

846.15   Plaintiff’s rights acquired by junior lienor.

846.155   Eligible bidders at foreclosure sales; affidavit required for confirmation; penalties for false representation.

846.16   Notice of sale; sale; confirmation; transfer.

846.162   Disposition of surplus.

846.165   Application for confirmation of sale and for deficiency judgment.

846.18   Tardy confirmation of sale.

846.25   Discharge after foreclosure.

846.30   Redemption period for land contracts.

846.40   Regulation of foreclosure reconveyances.

846.45   Regulation of foreclosure consultants.

846.01 846.01 Foreclosure judgment.

846.01(1) (1) Except as provided in sub. (2), in actions for the foreclosure of mortgages upon real estate, if the plaintiff recover, the court shall render judgment of foreclosure and sale, as provided in this chapter, of the mortgaged premises or so much of the premises as may be sufficient to pay the amount adjudged to be due upon the mortgage and obligation secured by the mortgage, with costs.

846.01(2) (2) A judgment of foreclosure and sale shall not be entered until 20 days after the lis pendens has been filed.

846.01 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.01; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.01; 1997 a. 254.

846.01 Cross-reference Cross-reference: See s. 840.10 as to requirement of filing of lis pendens.

846.01 Annotation The defense of laches, consisting of unreasonable delay by the mortgagee in commencing the action, its actual or constructive knowledge of the transfer and acquiescence therein, and prejudice to the mortgagor asserting the defense, is in itself a sufficient basis that it would be inequitable under the circumstances to decree foreclosure. Mutual Federal Savings & Loan Assoc. v. American Medical Services, 66 Wis. 2d 210, 223 N.W.2d 921 (1974).

846.01 Annotation The trial court could enter judgment against a codefendant who received an excess payment of sheriff sale proceeds from another defendant. The trial court’s authority in a foreclosure action is equitable in nature and not limited to that expressly granted by statute. The court’s discretion extends even after confirmation of sale, if necessary to provide that no injustice be done to any of the parties. Harvest State Bank v. ROI Investments, 228 Wis. 2d 733, 598 N.W.2d 571 (Ct. App. 1999), 98-2320.

846.01 Annotation In accordance with this section and the court’s equitable powers, the circuit court order “forever barred and foreclosed of all right, title, interest, lien or equity of redemption in and to said mortgaged premises.” A condominium association policy could not survive a foreclosure action to the extent it restricts a current owner’s use of condominium facilities based on the failure of the prior owners to pay their debts. Such a policy ties the debts of the prior owners to the units, in violation of well-established foreclosure. Walworth State Bank v. Abbey Springs Condominium Association, Inc. 2016 WI 30, 368 Wis. 2d 72, 878 N.W.2d 170, 14-0940.

846.01 Annotation When a lender does not validly accelerate payment of the amount due under a note and a foreclosure action brought on the borrower’s default on an installment payment under the note has been dismissed with prejudice, claim preclusion does not bar the lender from bringing a subsequent foreclosure action based upon the borrower’s continuing default on the same note. Federal National Mortgage Association v. Thompson, 2018 WI 57, 381 Wis. 2d 609, 912 N.W.2d 364, 16-1496.

846.01 Annotation Mortgage foreclosure as fraudulent conveyance: Is judicial foreclosure an answer to the Durrett problem? 1984 WLR 195.

846.01 Annotation Advising Clients Facing Foreclosure. Cummisford. Wis. Law. Dec. 2007.

846.01 Annotation Beyond Robo-signing: Mortgage Foreclosure Defense Basics. Nora. Wis. Law. April 2011.

846.02 846.02 Foreclosure; defendant may have assignment of mortgage.

846.02(1) (1) In a mortgage foreclosure action, any defendant may upon payment to the plaintiff or the plaintiff’s attorney, of the amount then owing thereon for principal, together with interest and all costs up to such time, demand the assignment of such mortgage to the defendant. The plaintiff shall upon such demand and a tender of the amount owing for principal, interest and costs, assign the mortgage to such defendant and the plaintiff shall be barred from further prosecuting such action. If dispute shall arise over the amount due for costs, application to fix the costs accrued shall be made to the court in which such action is pending.

846.02(2) (2) If such demand and tender is made after judgment, the plaintiff or the plaintiff’s assignee shall assign such judgment to such defendant.

846.02 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.02; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.02; 1993 a. 486.

846.04 846.04 Deficiency, judgment for.

846.04(1) (1) The plaintiff may, in the complaint, demand judgment for any deficiency that may remain due the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage. Judgment may be rendered for any deficiency remaining after applying the proceeds of sale to the amount due. The judgment for deficiency shall be ordered in the original judgment and separately rendered against the party liable on or after the confirmation of sale. The judgment for deficiency shall be entered in the judgment and lien docket and, except as provided in subs. (2) and (3), enforced as in other cases. A mortgage foreclosure deficiency judgment entered on or after October 14, 1997, on property under agricultural use, as defined in s. 91.01 (2), for at least 12 consecutive months during the preceding 36-month period shall be recorded as an agriculture judgment.

846.04(2) (2) Except as provided in sub. (3), if a mortgage foreclosure deficiency judgment is entered on property under agricultural use, as defined in s. 91.01 (2), for at least 12 consecutive months during the preceding 36-month period, an action on the deficiency judgment shall be commenced within 10 years after the date on which the mortgage foreclosure deficiency judgment is entered or be barred.

846.04(3) (3) If a mortgage foreclosure deficiency judgment was entered before January 1, 1990, on property devoted primarily to agricultural use, as defined in s. 91.01 (5), an action on the deficiency judgment shall be commenced within 2 years after October 14, 1997, or be barred. If the deficiency judgment remains unsatisfied in a mortgage foreclosure deficiency judgment action entered before October 14, 1997, the defendant in that action shall notify the clerk of circuit court of the existence of that deficiency judgment and of the date that an action on that deficiency judgment shall be commenced or be barred. Not later than 60 days prior to 2 years after October 14, 1997, if notified of an unsatisfied deficiency judgment by the defendant in that action, the clerk of each circuit court in which a mortgage foreclosure deficiency judgment on property devoted primarily to agricultural use, as defined in s. 91.01 (5), was entered before January 1, 1990, and remains unsatisfied, shall, upon payment by the defendant in that action of the costs of the publication and certified mail, do all of the following:

846.04(3)(a) (a) Publish a notice as a class 1 notice under ch. 985, in the official newspaper of the county where the mortgage foreclosure deficiency judgment was entered, stating that the party holding the mortgage foreclosure deficiency judgment is required to commence an action on the deficiency judgment prior to 2 years after October 14, 1997, or be barred from any further action on that deficiency judgment.

846.04(3)(b) (b) Notify by certified mail the primary plaintiff in the action for the mortgage foreclosure deficiency judgment that the plaintiff is required to commence an action on the deficiency judgment prior to 2 years after October 14, 1997, or be barred from any further action on that deficiency judgment.

846.04 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.04; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.04; 1993 a. 486; 1995 a. 224; 1997 a. 27; 2009 a. 28.

846.04 Annotation “Personally liable for the debt secured by the mortgage” has the same meaning in ss. 846.103 (2) and 846.04. “Personally liable” is a term of art used to distinguish the borrower’s liability, which is a personal obligation, from the mortgagor’s liability, which is an obligation limited to the property used to secure the note debt. Bank Mutual v. S.J. Boyer Construction, Inc. 2010 WI 74, 326 Wis. 2d 521, 785 N.W.2d 462, 08-0912.

846.04 Annotation There is no reasonable way to read sub. (1) and s. 846.101 to mean that a money judgment obtained on a second mortgage and note should count as a deficiency judgment for purposes of a foreclosure action on a separate indebtedness secured by a first mortgage. Harbor Credit Union v. Samp, 2011 WI App 40, 332 Wis. 2d 214, 796 N.W.2d 813, 10-0974.

846.05 846.05 Foreclosure for nonpayment of installment. An action for the foreclosure of a mortgage upon which there shall be due any interest or any installment of the principal and there shall be other installments to become due shall be dismissed upon the defendant’s bringing into court, before judgment, the principal and interest due, with the costs. If after judgment is entered in such case the defendant shall bring into court the principal and interest due, with the costs, proceedings on the judgment shall be stayed; but the court may enforce the judgment by a further order, upon a subsequent default in the payment of any installment of the principal, or of any interest thereafter to grow due.

846.05 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.05; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.05.

846.06 846.06 Sale in parcels. If in the cases mentioned in s. 846.05 the defendant shall not, before judgment, bring into court the amount so due with costs the court before rendering judgment shall ascertain by reference or otherwise the situation of the mortgaged premises and whether they can be sold in parcels without injury to the interests of the parties; and if it shall appear that they can be so sold the judgment shall direct a sale in parcels, specifying them, or so much thereof as will be sufficient to pay the amount due for principal, interests and costs; and such judgment shall remain as security for any subsequent default.

846.06 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.06; Sup. Ct. Order, 67 Wis. 2d 585, 768, 783 (1975); Stats. 1975 s. 846.06.

846.07 846.07 Order of sale for other defaults. If, in the case mentioned in s. 846.06, there shall be any default subsequent to judgment in the payment of any installment or of any interest due upon such mortgage the court may, upon petition of the plaintiff, direct a sale of enough of the mortgaged premises, to be made under the judgment, to satisfy the amount due, with the costs of such petition and the proceedings thereon; and like proceedings shall be had as often as a default shall happen.