The Wisconsin Supreme Court will answer this question in Bank of New York v. Carson, No. 2013AP544. It heard argument in this case last Tuesday.
The case began more than 3 1/2 years ago when a widow—physically and financially unable to care for her house—vacated her house and did not answer or dispute foreclosure. During the redemption period, the property fell into disrepair and was burglarized. (The court of appeals blamed the bank for failing to keep up the property.) The bank decided not to sell the property in its dilapidated state.
The owner then moved to amend the judgment, arguing that the circuit court should order the bank to sell the property within 5 weeks of the amended judgment, pursuant to Wis. Stat. § 846.102(1) (“In an action for enforcement of a mortgage lien if the court makes an affirmative finding upon proper evidence being submitted that the mortgaged premises have been abandoned by the mortgagor and assigns, judgment shall be entered as provided in s. 846.10 except that the sale of such mortgaged premises shall be made upon the expiration of 5 weeks from the date when such judgment is entered. . . .”).
The bank opposed the owner’s motion, arguing that the circuit court did not have the power to order it to sell the foreclosed property. The circuit court agreed and denied the motion, and therefore did not consider whether grounds existed to modify the judgment.
The court of appeals reversed. In a published opinion, the court held that the language of the statute—twice using the word “shall”—gave the circuit court authority to order the sale of a foreclosed property, enforceable with its contempt power. The court of appeals reversed and remanded for the circuit court to consider if grounds existed to modify the judgment.
The court of appeals decision is in tension with its unpublished decision a few months earlier, where the court, interpreting similar language in Wis. Stat. § 846.103, held that a bank was not required to sell a property after obtaining a judgment of foreclosure. Deutsche Bank Nat. Trust Co. v. Matson, No. 2012AP1981, unpublished op. (Wis. Ct. App. July 30, 2013).
The supreme court now takes up the question. A decision is expected by the end of July.
This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney.
This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary.
The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites.
In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.