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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 instalment.
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.
846.16 Notice and report of sale.
846.162 Disposition of surplus.
846.165 Application for confirmation of sale and for deficiency judgment.
846.17 Deed, execution and effect of.
846.18 Tardy confirmation of sale.
846.25 Discharge after foreclosure.
846.30 Redemption period for land contracts.
846.01 846.01 Foreclosure judgment. In actions for the foreclosure of mortgages upon real estate, if the plaintiff recover, the court shall render judgment of foreclosure and sale, as hereinafter provided, of the mortgaged premises or such part thereof as may be sufficient to pay the amount adjudged to be due upon the mortgage and obligation secured thereby, with costs. But such judgment shall not be entered until twenty 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 W (2d) 585, 768 (1975); Stats. 1975 s. 846.01.
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 S. & L. v. American Med. Services, 66 W (2d) 210, 223 NW (2d) 921.
846.01 Annotation Mortgage foreclosure as fraudulent conveyance: Is judicial foreclosure an answer to the Durrett problem? 1984 WLR 195.
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 W (2d) 585, 768 (1975); Stats. 1975 s. 846.02; 1993 a. 486.
846.04 846.04 Deficiency, judgment for. 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 enforced as in other cases.
846.04 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.04; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.04; 1993 a. 486; 1995 a. 224.
846.05 846.05 Foreclosure for nonpayment of instalment. An action for the foreclosure of a mortgage upon which there shall be due any interest or any instalment of the principal and there shall be other instalments 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 instalment 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 W (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 W (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 instalment 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.
846.07 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.07; Sup. Ct. Order, 67 W (2d) 585, 768, 783 (1975); Stats. 1975 s. 846.07.
846.08 846.08 Judgment for sale of whole; adjustment of parties' rights. If, in any case mentioned in ss. 846.06 and 846.07 it shall appear that the mortgaged premises are so situated that they cannot be sold in parcels without injury to the interests of the parties or that the sale of the whole will be most beneficial to them the court may adjudge the sale of the whole in which case the proceeds of sale, after deducting the costs of the action and of sale, shall be applied to the payment of the sums due and to become due deducting from all sums not due, which do not bear interest, interest from the time of payment to the time when the same are payable or the court may direct the balance of the proceeds of sale, after paying the sum then due with such costs, to be placed at interest for the benefit of the plaintiff, to be paid to the plaintiff as such subsequent payments or instalments shall become due, with the interest thereon. The surplus, after paying the amount due the plaintiff and costs, shall be paid to the party entitled thereto on the order of the court.
846.08 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.08; Sup. Ct. Order, 67 W (2d) 585, 768, 783 (1975); Stats. 1975 s. 846.08; 1993 a. 486.
846.09 846.09 Amendments as to parties; process and pleading. In any action for the foreclosure of a mortgage, at any time after judgment and before a sale pursuant thereto, the plaintiff may be granted leave to amend the summons, complaint and all the proceedings in the action by making as defendant any person who is a proper or necessary party thereto. Such person so made a party shall be served with the summons in like manner as if originally a party, and may answer and defend, and all matters and proceedings as to the person shall be had and taken in like manner as if the person had been originally made a party thereto. After such person has been thus made a party and served, and the person's rights adjudicated upon, the original judgment may be so amended as to bar and foreclose the person thereby, or to make any provisions in regard to the person's rights and interests in like manner as it could have done had the person been made originally a party.
846.09 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.09; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.09; 1993 a. 486.
846.10 846.10 Foreclosure.
846.10(1)(1) If the plaintiff recovers the judgment shall describe the mortgaged premises and fix the amount of the mortgage debt then due and also the amount of each instalment thereafter to become due, and the time when it will become due, and whether the mortgaged premises can be sold in parcels and whether any part thereof is a homestead, and shall adjudge that the mortgaged premises be sold for the payment of the amount then due and of all instalments which shall become due before the sale, or so much thereof as may be sold separately without material injury to the parties interested, and be sufficient to pay such principal, interest and costs; and when demanded in the complaint, direct that judgment shall be rendered for any deficiency against the parties personally liable and, if the sale is to be by referee, the referee must be named therein.
846.10(2) (2) Any party may become a purchaser. No sale involving a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization may be held until the expiration of 12 months from the date when judgment is entered, except a sale under s. 846.101 or 846.102. Notice of the time and place of sale shall be given under ss. 815.31 and 846.16 and may be given within the 12-month period except that the first printing of the notice shall not be made less than 10 months after the date when judgment is entered, except that the sale of a farm shall not be made or advertised until the expiration of one year from the date when such judgment is entered. In all cases the parties may, by stipulation, filed with the clerk, consent to an earlier sale. Sales under foreclosure of mortgages given by any railroad corporation may be made immediately after the rendition of the judgment.
846.10(3) (3) The proceeds of every sale shall be applied to the discharge of the debt adjudged to be due and the costs awarded; and if there shall be any surplus it shall be subject to the order of the court. If any surplus remains in the court for 3 months, without being applied for, the court shall direct the same to be put out at interest for the benefit of the party entitled thereto to be paid to the party upon the order of such court.
846.10(4) (4) The court may order in the judgment of foreclosure that all sums advanced by the plaintiff for insurance, necessary repairs and taxes not included in the judgment may be added to the judgment by order at any time after the entry thereof.
846.10 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.10; Sup. Ct. Order, 67 W (2d) 585, 768, 783 (1975); Stats. 1975 s. 846.10; 1977 c. 304; 1993 a. 486.
846.10 Annotation Judgment of foreclosure and sale is final judgment appealable as matter of right under 808.03 (1). Appeal from order confirming sale does not enable appellant to challenge judgment of foreclosure. Shuput v. Lauer, 109 W (2d) 164, 325 NW (2d) 321 (1982).
846.10 Annotation Guarantor's liability was not extinguished by application of proceeds to guaranteed portion of debt. Crown Life Ins. Co. v. LaBonte, 111 W (2d) 26, 330 NW (2d) 201 (1983).
846.10 Annotation Federal Farmers Home Administration is not subject to state exemption laws in the foreclosure of its mortgages. U.S. v. Einum, 821 F Supp. 1283 (1993).
846.101 846.101 Foreclosure without deficiency; 20-acre parcels.
846.101(1)(1) If the mortgagor has agreed in writing at the time of the execution of the mortgage to the provisions of this section, and the foreclosure action involves a one- to 4-family residence that is owner-occupied at the commencement of the action, a farm, a church or a tax-exempt charitable organization, the plaintiff in a foreclosure action of a mortgage on real estate of 20 acres or less, which mortgage is recorded subsequent to January 22, 1960, may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage, and to consent that the mortgagor, unless he or she abandons the property, may remain in possession of the mortgaged property and be entitled to all rents, issues and profits therefrom to the date of confirmation of the sale by the court.
846.101(2) (2) When plaintiff so elects, judgment shall be entered as provided in this chapter, except that no judgment for deficiency may be ordered therein nor separately rendered against any party who is personally liable for the debt secured by the mortgage and the sale of such mortgaged premises shall be made upon the expiration of 6 months from the date when such judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and 846.16 within such 6-months period except that first printing of a copy of such notice in a newspaper shall not be made less than 4 months after the date when such judgment is entered.
846.101 History History: 1973 c. 189 ss. 7, 20; Stats. 1973 s. 816.101; Sup. Ct. Order, 67 W (2d) 585, 768, 783 (1975); Stats. 1975 s. 846.101; 1977 c. 304.
846.101 Annotation Election by mortgagee to foreclose under s. 816.101, 1973 stats., on one or more mortgages securing debt does not bar foreclosure upon remaining mortgages but does bar pursuit of personal deficiency. Glover v. Marine Bank of Beaver Dam, 117 W (2d) 684, 345 NW (2d) 449 (1984).
846.101 Annotation Veterans Administration was not estopped from pursuing deficiency against veteran under agreement to indemnify VA for VA's loss on loan guaranty where foreclosure was under 846.101. U.S. v. Davis, 961 F (2d) 603 (1992).
846.102 846.102 Abandoned premises. 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 2 months from the date when such judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and 846.16 and may be given within such 2-month period. In this section "abandoned" means the relinquishment of possession or control of the premises whether or not the mortgagor or the mortgagor's assigns have relinquished equity and title.
846.102 History History: 1973 c. 189; Sup. Ct. Order, 67 W (2d) 585, 768, 783 (1975); 1975 c. 41 s. 52; 1975 c. 199; Stats. 1975 s. 846.102; 1977 c. 304.
846.103 846.103 Foreclosures of commercial properties and multifamily residences.
846.103(1) (1) No foreclosure sale involving real property other than a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization may be held until the expiration of 6 months from the date when judgment is entered except a sale under sub. (2). Notice of the time and place of sale shall be given under ss. 815.31 and 846.16 and may be given within the 6-month period except that the first printing of the notice shall not be made less than 4 months after the date when judgment is entered.
846.103(2) (2) If the mortgagor of real property other than a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization has agreed in writing at the time of the execution of the mortgage to the provisions of this section, the plaintiff in a foreclosure action of a mortgage, which mortgage is recorded subsequent to May 12, 1978, may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage, and to consent that the mortgagor, unless he or she abandons the property, may remain in possession of the mortgaged property and be entitled to all rents, issues and profits therefrom to the date of confirmation of the sale by the court. When the plaintiff so elects, judgment shall be entered as provided in this chapter, except that no judgment for deficiency may be ordered nor separately rendered against any party who is personally liable for the debt secured by the mortgage and the sale of the mortgaged premises shall be made upon the expiration of 3 months from the date when such judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and 846.16 and may be given within the 3-month period except that first printing of the notice shall not be made less than one month after the date when judgment is entered.
846.103 History History: 1977 c. 304.
846.103 Annotation Application of reduced redemption period to mortgage executed before enactment of Chapter 304, laws of 1977, would be unconstitutional impairment of contract. Burke v. E. L. C. Investors, Inc. 110 W (2d) 406, 329 NW (2d) 259 (Ct. App. 1982).
846.11 846.11 Homestead, how sold. If any defendant appear and answer that any portion of the mortgaged premises is an exempt homestead the court shall ascertain whether such be the fact, and if so whether the part of the mortgaged premises not included in the exempt homestead can be sold separately therefrom without injury to the interests of the parties, and in that case shall direct in the judgment that the exempt homestead shall not be sold until all the other mortgaged lands have been sold.
846.11 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.11; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.11.
846.11 Annotation This statute gives the option to the mortgagor to insist that, where a mortgage covers both homestead and nonhomestead property, the nonhomestead property be sold first. That issue was irrelevant in the instant case, since the entire mortgaged property was homestead. Anchor Savings & Loan Asso. v. Week, 62 W (2d) 169, 213 NW (2d) 737.
846.11 Annotation This section is inapplicable where separate mortgages cover homestead and nonhomestead property. Valley Bank v. Jennings, 198 W (2d) 857, 544 NW (2d) 243 (Ct. App. 1995).
846.11 Annotation Federal Farmers Home Administration is not subject to state exemption laws in the foreclosure of its mortgages. U.S. v. Einum, 821 F Supp. 1283 (1993).
846.12 846.12 Interest; waste. The amount adjudged due shall draw interest at the rate provided to be paid on the mortgage debt, but shall not exceed the minimum rate prevailing immediately prior to the default on which the foreclosure is based, until the date of sale or payment, and all the instalments which shall become due after the date of such judgment shall draw interest at the same rate from the time the same become due. The judgment may enjoin the defendants and all persons claiming under them from committing waste or doing any act that may impair the value of the mortgaged premises.
846.12 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.12; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.12.
846.13 846.13 Redemption from and satisfaction of judgment. The mortgagor, the mortgagor's heirs, personal representatives or assigns may redeem the mortgaged premises at any time before the sale by paying to the clerk of the court in which the judgment was rendered, or to the plaintiff, or any assignee thereof, the amount of such judgment, interest thereon and costs, and any costs subsequent to such judgment, and any taxes paid by the plaintiff subsequent to the judgment upon the mortgaged premises, with interest thereon from the date of payment, at the same rate. On payment to such clerk or on filing the receipt of the plaintiff or the plaintiff's assigns for such payment in the office of said clerk the clerk shall thereupon discharge such judgment, and a certificate of such discharge, duly recorded in the office of the register of deeds, shall discharge such mortgage of record to the extent of the sum so paid.
846.13 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.13; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.13; 1993 a. 486.
846.13 Cross-reference Cross-reference: See s. 846.25, relative to discharge after foreclosure.
846.13 Annotation Bankruptcy court reduction of mortgage lien does not affect payment required for redemption. Hobl v. Lord, 162 W (2d) 226, 470 NW (2d) 265, (1991).
846.14 846.14 Redemption of part. In case the mortgagor, the mortgagor's heirs, representatives or assigns shall desire to pay a portion of such judgment, taxes, interest and costs, so as to relieve any distinct lot or parcel of the premises which can be sold separately under such judgment from the lien thereof and of such mortgage thereon, the court, on application of such person and on notice to the parties to the action, may, if the amount to be paid therefor is not agreed upon, ascertain and adjudge the proportion of such judgment, taxes, interest and costs to be paid for the purpose aforesaid; and when the amount so adjudged shall be paid as aforesaid it shall relieve such distinct lot or parcel from such judgment and the lien of such mortgage thereon and shall satisfy such judgment to the amount so paid. Any heir, devisee, grantee or assignee of the mortgagor, owning an undivided interest in the mortgaged premises, subject to the lien of the mortgage, may redeem such undivided interest from such judgment and the lien of the mortgage thereon by paying as aforesaid a sum that will bear the same proportion to the whole of such judgment, taxes, costs and interest as the interest proposed to be redeemed bears to the whole of the mortgaged premises.
846.14 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.14; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.14; 1993 a. 486.
846.15 846.15 Plaintiff's rights acquired by junior lienor. Any person having a junior lien upon the mortgaged premises or any part thereof or interest therein, may, at any time before such sale, pay to the clerk of court, or the plaintiff or the plaintiff's assignee, the amount of such judgment, taxes, interest and costs, and costs subsequent to judgment, and shall thereupon be subrogated to all the rights of the plaintiff as to such judgment.
846.15 History History: 1973 c. 189 s. 7; Stats. 1973 s. 816.15; Sup. Ct. Order, 67 W (2d) 585, 768 (1975); Stats. 1975 s. 846.15; 1993 a. 486.
846.16 846.16 Notice and report of sale.
846.16(1) (1) The sheriff or referee who makes sale of mortgaged premises, under a judgment therefor, shall give notice of the time and place of sale in the manner provided by law for the sale of real estate upon execution or in such other manner as the court shall in the judgment direct; where the department of veterans affairs is also a party in the foreclosure action, the judgment shall direct that notice of sale be given by registered mail, return receipt requested, to the department at Madison, Wisconsin, at least 3 weeks prior to the date of sale, but such requirement does not affect any other provision as to giving notice of sale. The sheriff or referee shall, within 10 days thereafter, file with the clerk of the court a report of the sale, and shall also immediately after the sale first deduct any fee due under s. 77.22 (1); then deposit that fee, a return under s. 77.22 and the deed with the clerk of the court for transmittal to the register of deeds; then deduct the costs and expenses of the sale, unless the court orders otherwise, and then deposit with the clerk of the court the proceeds of the sale ordered by the court. The sheriff may accept from the purchaser at such sale as a deposit or down payment upon the same not less than $100, in which case such amount shall be so deposited with the clerk of the court as above provided, and the balance of the sale price shall be paid to the clerk by the purchaser at such sale upon the confirmation thereof. If the highest bid is less than $100, the whole amount thereof shall be so deposited.
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