859 N.W.2d 422
Wis.2015Background
- Bank sued Carson to foreclose on Concordia Ave. property; after default, the property appeared abandoned and municipal filings followed.
- Judgment was entered ordering sale after three months; the Bank did not secure or maintain the property.
- Carson moved to amend the judgment to find abandonment and to require sale five weeks after amended judgment under Wis. Stat. § 846.102.
- Circuit court denied the motion, concluding § 846.102 did not authorize a sale at a specific time and did not compel action by the mortgagee.
- Court of Appeals reversed, holding § 846.102 mandates sale after abandonment and authorizes prompt sale, remanding for abandonment determination.
- Wisconsin Supreme Court affirmed the Court of Appeals, remanding to determine abandonment and, if abandoned, to set a reasonable time for sale after the redemption period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 846.102 authorize ordering a sale after abandonment? | Bank contends § 846.102 authorizes sale after abandonment without mortgagee action. | Carson contends court can order sale under § 846.102 when abandonment is found. | Yes; court may order sale once abandonment is found. |
| Can a court require a sale at a specific time within the redemption period? | Bank argues no fixed time; sale can occur anytime after five weeks or later. | Carson argues the five-week deadline can be set by the court. | Court may set a time to bring sale, but within a reasonable time after the five-week period. |
| Is the word 'shall' in § 846.102(1) mandatory or directory? | Bank argues 'shall' contemplates mortgagee discretion. | Carson argues 'shall' is mandatory to ensure prompt sale. | Context shows 'shall' is mandatory to prompt sale after abandonment. |
| Does § 846.102 depend on mortgagee action or focus on property condition? | Bank emphasizes mortgagee control and timing. | Court should focus on abandonment evidence; sale may be required irrespective of mortgagee timing. | The focus is on abandonment evidence; sale can be compelled even without mortgagee timing. |
| Should the case be remanded to determine abandonment and reasonable sale time? | Bank seeks a sale order following five weeks from judgment if abandoned. | Carson seeks enforcement under § 846.102 with timely sale. | Remand is required to determine abandonment and, if abandoned, to set a reasonable sale time. |
Key Cases Cited
- Kalal v. State ex rel. Circuit Court for Dane County, 271 Wis.2d 633 (Wis. 2004) (statutory interpretation framework; context and language matter)
- Bank Mut. v. S.J. Boyer Constr., Inc., 326 Wis.2d 521 (Wis. 2010) (mandatory vs. directory analysis; statutory context matters)
- GMAC Mortgage Corp. v. Gisvold, 572 N.W.2d 466 (Wis. 1998) (shall construed when necessary to carry out legislative intent)
- Waller v. American Transmission Co., 833 N.W.2d 764 (Wis. 2013) (statutory construction aligned with statutory purpose)
- State ex rel. Marberry v. Macht, 665 N.W.2d 155 (Wis. 2003) (legislative intent and mandatory vs. directory effects)