2017 Wisconsin Statutes & Annotations
Chapter 425. Consumer transactions — remedies and penalties.
425.205 Action to recover collateral.
425.205 Action to recover collateral.
(1) Except as provided in s. 425.206, a creditor seeking to obtain possession of collateral or goods subject to a consumer lease shall commence an action for replevin of the collateral or leased goods. Those actions shall be conducted in accordance with ch. 799, notwithstanding s. 799.01 (1) (c) and the value of the collateral or leased goods sought to be recovered, except that:
(a) Notwithstanding ss. 799.05 (2) and 799.06 (2), process shall be issued by the clerk of court, and such action shall be commenced upon the request of an officer or employee of a merchant on the merchant's behalf;
(b) The summons shall be in the form prescribed in sub. (2), and a complaint in the form described in sub. (3) shall be served with the summons;
(c) When service is made pursuant to s. 799.12 (3) certified mail with return receipt requested shall be employed;
(d) On the return date of the summons or any adjournment date thereof the customer shall have the right to a hearing on the issue of default or other matter which questions the validity of the merchant's claim to the collateral or leased goods, and the customer may answer, move to dismiss under s. 802.06 (2) or otherwise plead to the complaint orally, but if the customer fails to appear on the return day, judgment may be entered by the clerk or judge in accordance with the demands of the verified complaint, or upon an affidavit of the facts, or sworn testimony or other evidence to the clerk or judge; and
(e) Judgment in such action shall determine only the right to possession of the collateral or leased goods, but such judgment shall not bar any subsequent action for damages or deficiency to the extent permitted by this subchapter.
(1g)
(a) A merchant may not take possession of motor vehicle collateral or goods subject to a motor vehicle consumer lease under s. 425.206 (1) (d), unless the merchant gives, by mail, the customer a notice containing all of the following information:
1. The name, address, and telephone number of the merchant, a brief identification of the consumer credit transaction, and a brief description of the collateral or goods.
2. A statement that, as a result of the customer's default on the consumer credit transaction, the merchant may have the right to take possession of the collateral or goods without further notice or court proceeding.
3. A statement that if the customer is not in default or objects to the merchant's right to take possession of the collateral or goods, the customer may, no later than 15 days after the merchant has given the notice, demand that the merchant proceed in court by notifying the merchant in writing.
4. A statement that if the merchant proceeds in court, the customer may be required to pay court costs and attorney fees.
(b) The information required under par. (a) may be combined with any other notice, except that if the customer has a right to cure under s. 425.105, the information required under par. (a) shall be combined with the notice of right to cure under s. 425.104.
(c) A merchant is presumed to have given notice under par. (a) if the merchant sent the notice by certified or registered mail. A merchant who fails to give notice under par. (a) by certified or registered mail is subject to the penalties specified in s. 425.302 (1), but such failure does not constitute a failure to comply with s. 425.206 (1) (d).
(2) The summons in such actions shall be in the following form:
State of Wisconsin
Circuit Court
.... County
A. B. Plaintiff
v.
C. D. Defendant
SUMMONS (Small Claim)
THE STATE OF WISCONSIN
To said Defendant:
The Plaintiff named above has commenced an action to recover possession of the following property:
[Description of Collateral or Leased Goods]
This claim arises under a consumer credit transaction under which you are alleged to be in default, as described in the attached complaint.
IF YOU ARE NOT IN DEFAULT OR HAVE AN OBJECTION TO THE PLAINTIFF'S TAKING THE PROPERTY LISTED ABOVE, YOU MAY ARRANGE FOR A HEARING ON THESE ISSUES BY APPEARING IN THE CIRCUIT COURT OF .... COUNTY, IN THE COURTHOUSE LOCATED IN ...., (municipality), BEFORE JUDGE .... OR ANY OTHER JUDGE TO WHOM THE ACTION MAY BE ASSIGNED, ON .... (date), AT .... (time). IF YOU DO NOT APPEAR AT THAT TIME, JUDGMENT WILL BE RENDERED AGAINST YOU FOR DELIVERY OF THE PROPERTY TO THE PLAINTIFF.
DATED ...., .... (year)
E.F.
Clerk of Circuit Court
[or]
Plaintiff's Attorney
Plaintiff's P. O. Address
....
....
Plaintiff's Attorney (if any)
....
....
Defendant's P. O. Address
....
....
(3) The complaint in such action shall conform with the requirements of s. 425.109.
(4) Upon the written request of the customer under s. 425.109 (2), the merchant shall produce an accurate copy of writings evidencing the customer's obligation pursuant to an open-end credit plan upon which the merchant's claim is made, and default judgment shall not be entered for the merchant unless the merchant does so. The writings requirement under this subsection is satisfied if the merchant provides the customer with a copy of the billing statement referenced in s. 425.109 (1) (d) 1. addressed to the customer reflecting the total outstanding balance on the customer's account at the time this billing statement was issued. If this billing statement is attached to the complaint, then the statement under s. 425.109 (1) (h) is not required to be included in the complaint.
(5) Upon entry of judgment for the plaintiff, the plaintiff shall have the right to:
(a) Have execution issue to require the sheriff of the county where the collateral or leased goods may be to take the same from the defendant and deliver it to the plaintiff; or
(b) Immediately exercise the right to nonjudicial recovery of the collateral or leased goods, subject to s. 425.206.
(6) Action pursuant to this section may be commenced at any time after the customer is in default, but the return day of process may not be set prior to the expiration of the period for cure of the default by the customer (s. 425.105), if applicable.
Sub. (1g) (a) requires a creditor to give notice to the debtor that includes that the creditor may repossess the car without going to court unless the debtor demands within fifteen days of the notice that the creditor proceed to court. Under s. 421.201(8), the debtor's address is established by any writing signed by the debtor in connection with the transaction and is presumed to be unchanged until the creditor knows or has reason to know of a different address. Given the debtor's failure to provide her new address to the creditor, the debtor failed to show that the creditor's notice by registered mail to the address that it had on file did not comply with this section. Molinski v. Chase Auto Finance Corporation, 2013 WI App 101, 349 Wis. 2d 687, 837 N.W.2d 166, 12-2184.
Wisconsin's New Automobile Repossession law: Creditors in the Driver's Seat. Anderson & Meili. Wis. Law. Feb. 2007.
