The creation of debt by a credit to an account with the lender upon which the customer is entitled to draw immediately;
The creation of debt pursuant to a credit card or similar arrangement other than pursuant to a seller credit card;
The forbearance by a lender of debt arising from a loan.
“Merchandise certificate" means a writing issued by a seller not redeemable in cash and usable in its face amount in lieu of cash in exchange for goods or services.
“Merchant" means a person who regularly advertises, distributes, offers, supplies or deals in real or personal property, services, money or credit in a manner which directly or indirectly results in or is intended or designed to result in, lead to or induce a consumer transaction. The term includes but is not limited to a seller, lessor, manufacturer, creditor, arranger of credit and any assignee of or successor to such person. The term also includes a person who by his or her occupation holds himself or herself out as having knowledge or skill peculiar to such practices or to whom such knowledge or skill may be attributed by his or her employment as an agent, broker or other intermediary.
Fees and charges which actually are or actually will be paid for determining the existence of or for perfecting a security interest related to a consumer credit transaction to the extent that such fees and charges do not exceed those fees and charges prescribed by law for payment to public officials; and
Premiums payable for insurance in lieu of perfecting a security interest otherwise required by the creditor in connection with the consumer credit transaction, if the premium does not exceed the amount payable to the insurer and the fees and charges described in par. (a)
which would otherwise be payable.
“Open-end credit plan" means consumer credit extended on an account pursuant to a plan under which:
The creditor may permit the customer to make purchases or obtain loans, from time to time, directly from the creditor or indirectly by use of a credit card, check or other device, as the plan may provide;
The customer has the privilege of paying the balance in full or in installments;
A finance charge may be computed by the creditor from time to time on an outstanding unpaid balance; and
The creditor has treated the transaction as open-end consumer credit for purposes of any disclosures required under the federal consumer credit protection act.
The term does not include negotiated advances under an open-end real estate mortgage or a letter of credit.
A credit plan shall not be considered an open-end credit plan, even though it meets the criteria listed in par. (a) 1.
, if the creditor treats the transaction as other than open-end credit for each extension of credit for purposes of any disclosures required under the federal consumer credit protection act.
“Organization" means a corporation, government or governmental subdivision or agency, trust, estate, limited liability company, partnership, cooperative or association other than a cooperative organized under ch. 185
which has gross annual revenues not exceeding $5 million.
“Other than open-end credit" means consumer credit other than an open-end credit plan itself, or other than consumer credit transactions pursuant to an open-end credit plan, and includes precomputed transactions.
“Payable in installments" means that payment is required or permitted by agreement to be made in:
Two or more installments, excluding the down payment in a consumer credit sale, with respect to an obligation arising from a consumer credit transaction for which a finance charge is or may be imposed;
More than 4 installments, excluding the down payment in a consumer credit sale, in any other consumer credit transaction; or
Two or more installments if any installment other than the down payment is more than twice the amount of any other installment, excluding the down payment.
“Person" includes a natural person, and an organization.
“Person related to" with respect to a natural person means:
A brother, brother-in-law, sister, sister-in-law of the natural person;
An ancestor or lineal descendant, by blood or adoption, of the natural person or that person's spouse; and
Any other relative, by blood, marriage or adoption, of the natural person or that person's spouse who shares the same home with the natural person.
“Person related to" with respect to an organization means:
A person directly or indirectly controlling the organization, controlled by the organization or, who together with the organization, is under common control;
An officer or director of the organization or a person performing similar functions with respect to the organization or to a person related to the organization;
The spouse of a natural person related to the organization; and
A relative by blood, marriage or adoption of a person related to the organization who shares the same home with that person.
“Personal property" includes but is not limited to goods.
“Precomputed" with respect to a consumer credit transaction means a consumer credit transaction, other than a motor vehicle consumer lease, in which debt is expressed as a single sum comprised of the amount financed and the finance charge computed in advance.
“Prepaid finance charge" means any finance charge paid separately, in cash or otherwise, directly or indirectly to the creditor or with the creditor's knowledge to another person or withheld by the creditor from the proceeds of the credit extended.
“Presumed" or “presumption" means that the trier of the issue must find the existence of that which is presumed unless and until evidence is introduced which would support a contrary finding.
“Refund anticipation loan" means an agreement under which a creditor arranges to be repaid for a loan directly from the proceeds of a customer's income tax refund.
“Refund anticipation loan fees" include charges, fees or other consideration imposed by a creditor for making a refund anticipation loan. “Refund anticipation loan fees" does not include any charge, fee or other consideration usually imposed by the creditor in the ordinary course of business for nonloan services, such as fees for tax return preparation or fees for electronic filing of tax returns.
“Required deposit balance" means any deposit balance or any investment which the creditor requires the customer to make, maintain or increase in a specified amount or proportion as a condition to the extension of credit except:
Amounts paid into an escrow account which are permitted additional charges under s. 422.202
A deposit balance which will be wholly applied toward satisfaction of the customer's obligation in the transaction;
A deposit balance or investment which was in existence prior to the extension of credit and which is offered by the customer as security for that extension of credit; and
A deposit balance or investment which is acquired or established from the proceeds of an extension of credit made for that purpose, which the creditor does not require as a condition to the extension of credit, and which is acquired or established at the written request of the customer.
See also s. DFI-WCA 1.09
, Wis. adm. code.
“Sale of services" means furnishing or agreeing to furnish services and includes arranging to have services furnished by another.
“Security interest" means a real property mortgage, deed of trust, seller's interest in real estate under a land contract, any interest in property which secures payment or performance of an obligation under ch. 409
or any other consensual or confessed lien whether or not recorded.
“Seller credit card" means an arrangement pursuant to an open-end credit plan in which a person gives to a customer the privilege of using a credit card, or other credit confirmation or identification primarily for the purpose of purchasing or leasing goods or services from that person, a person related to that person or others licensed or franchised to do business under that person's business or trade name or designation.
Privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals, cemetery accommodations, and the like; and
Insurance provided in connection with a consumer credit transaction.
“Services" does not include any services of common carriers if the tariffs, rates, charges, costs or expenses of such common carriers are required by law to be filed with or approved by the federal government or any official, department, division, commission or agency of the United States.
“Supervised financial organization" means a person:
Organized, chartered or holding an authorization certificate under the laws of this state or of the United States which authorize the person to make loans and to receive deposits, including a savings, share, certificate or deposit account; and
Subject to supervision by an official or agency of this state or of the United States.
“Total lease obligation" means the sum of all of the following with respect to a motor vehicle consumer lease:
“Transaction" means an agreement between 2 or more persons, whether or not the agreement is a contract enforceable by action, and includes the making of and the performance pursuant to that agreement.
A “rent-to-own" transaction was a consumer credit sale even though the customer was not contractually obligated to make installment payments. Palacios v. ABC TV & Stereo Rental, 123 Wis. 2d 79
, 365 N.W.2d 882
(Ct. App. 1985).
An option to purchase at the conclusion of a lease for appliances at a price equal to 11 percent of the total lease payments was a consumer credit sale under sub. (9). Rent-a-Center, Inc. v. Hall, 181 Wis. 2d 244
, 510 N.W.2d 789
(Ct. App. 1993).
If a lessor of personal property is bound for a period exceeding 4 months, a consumer lease under sub. (11) exists even though the lessee may exercise an option to purchase the leased goods less than 4 months after the beginning of the lease period. LeBakken Rent-to-Own v. Warnell, 223 Wis. 2d 582
, 589 N.W.2d 425
(Ct. App. 1998), 98-1569
To determine if an option price is nominal under sub. (9), a court may consider: 1) the relation of the option price to the item's fair market value, 2) the relation of the option price to the total rental price, 3) the relationship between the option price and the original price of the goods, or 4) whether the lessee has “any sensible alternative" to exercising the option. LeBakken Rent-to-Own v. Warnell, 223 Wis. 2d 582
, 589 N.W.2d 425
(Ct. App. 1998), 98-1569
An agreement necessary to establish that there is an obligation “payable in installments" under sub. (30), which is required for there to be a “consumer credit transaction" under sub. (10), must be made before services are rendered. Permitting a debtor to pay over time only after attempts to collect in full have failed does not render the transaction a consumer credit transaction. Dean Medical Center, S.C. v. Conners, 2000 WI App 202
, 238 Wis. 2d 636
, 618 N.W.2d 194
A person who, along with her fiance, signed a credit application but did not sign the subsequent retail installment agreement was a customer under sub. (17). Sub. (17) addresses personal, family, or household purposes. When a woman is engaged to the father of her child and they are purchasing a car together, they apparently are doing so for anticipated personal, family, and household purposes. Zehetner v. Chrysler Financial Company, LLC, 2004 WI App 80
, 272 Wis. 2d 628
, 679 N.W.2d 919
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 sub. (16). Rsidue, LLC v. Michaud, 2006 WI App 164
, 295 Wis. 2d 585
, 721 N.W.2d 718
To state a claim under either the federal Fair Debt Collection Practices Act or the Wisconsin Consumer Act, a plaintiff must demonstrate that the debt in question arises out of a transaction incurred for personal, family, or household purposes. When a plaintiff maintains that the underlying debt was not his or hers, the plaintiff can nonetheless claim protection by showing that the debt collector treated the plaintiff as a consumer allegedly owing a consumer debt. However, a plaintiff proceeding under this theory still must offer evidence to establish that the debt was a consumer debt: in other words, that the debt was incurred for personal, family, or household purposes. Burton v. Kohn Law Firm, S.C., 934 F.3d 572
The applicability of the consumer act to rent-to-own contracts is discussed. Burny v. Thorn, 944 F. Supp. 762
The Wisconsin Consumer Act: When is a Transaction a Consumer Credit Transaction? Anzivino. 96 MLR (No. 1 2012)
The venue for a claim arising out of a consumer transaction or a consumer credit transaction is the county:
Where the customer resides or is personally served;
Where collateral securing a consumer credit transaction is located; or
Where the customer sought or acquired the property, services, money or credit which is the subject of the transaction or signed the document evidencing his or her obligation under the terms of the transaction.
When it appears from the return of service of the summons or otherwise that the county in which the action is pending under sub. (1)
is not a proper place of trial for such action, unless the defendant appears and waives the improper venue, the court shall act as follows:
Except as provided in par. (b)
, if it appears that another county would be a proper place of trial, the court shall transfer the action to that county.
If the action arises out of a consumer credit transaction, the court shall dismiss the action for lack of jurisdiction.
If there are several defendants, and if venue is based on residence, venue may be in the county of residence of any of them.
History: 1983 a. 228
; 1987 a. 208
An improperly venued action arising from a consumer credit transaction “shall be dismissed for lack of jurisdiction" under sub. (2) (b). When the court fails to dismiss, the action is invalid. Kett v. Community Credit Plan, Inc. 228 Wis. 2d 1
, 596 N.W.2d 786
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
Sections 801.50 and 801.51, the general venue statutes, do not apply to actions arising from consumer credit transactions. Rather, the venue provision in s. 421.401 applies. Brunton v. Nuvell Credit Corporation, 2010 WI 50
, 325 Wis. 2d 135
, 785 N.W.2d 302
Sub. (2) (b) states that an improperly venued consumer credit action must be dismissed unless the defendant appears and waives the improper venue. Appearance in the action and pleading in the action are distinct requirements. Waiver under sub. (2) requires the intentional relinquishment of a known right. To establish a valid waiver, it must be proved that the defendant knew the place of proper venue and knew of the right to dismissal of the case when it was not properly venued. A plaintiff must prove that the rights to proper venue and dismissal of an improperly venued action were intentionally relinquished. Continued litigation of an action does not unambiguously demonstrate an intention to relinquish the right to proper venue. Brunton v. Nuvell Credit Corporation, 2010 WI 50
, 325 Wis. 2d 135
, 785 N.W.2d 302