After the Bank Forecloses, Must It Actually Sell Your House?

01 October 2014 Wisconsin Appellate Law Blog

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The court of appeals decision is in tension with its unpublished decision a few months earlier, where the court, interpreting similar language in Wis.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 Trust Co. v. Matson, No. 2012AP1981, unpublished op.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.

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