829 N.W.2d 522
Wis. Ct. App.2013Background
- Kirk bought a 1998 Buick Regal in May 2007, financed via a retail installment contract ultimately assigned to Credit Acceptance.
- Under the contract, Kirk owed $305.32 monthly for 30 months and defaulted by July 2007; Notices of Right to Cure were mailed to Kirk and a co-signor by certified mail.
- Kirk's Notices to Cure were returned as unclaimed; Credit Acceptance repossessed the vehicle on April 8, 2008 and sold it at auction for $1300.
- Credit Acceptance filed a deficiency action on November 17, 2008; the circuit court later dismissed that action pursuant to a stipulation.
- Kirk filed this WCA action on November 17, 2009 alleging (i) improper cure notice/repossession, (ii) filing the deficiency action without cure notice, and (iii) filing the action knowing there was no right to a deficiency; the circuit court granted summary judgment to Kirk on the claim tied to the deficiency action and addressed other issues.
- On appeal, the court affirmed in part, reversed in part, and remanded for damages to be limited to actual $1300, remand for attorney’s fees hearing, and for arbitration-related issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the WCA claims are time-barred | Kirk | Credit Acceptance | Not barred; last violation occurred with the 2008 deficiency action. |
| Whether Credit Acceptance violated the WCA by filing the deficiency action without proper cure notice or knowing there was no right to a deficiency | Kirk | Credit Acceptance | Summary judgment for Kirk; repo without replevin judgment breached contract and violated §427.104(l)(j). |
| Whether arbitration should have stayed the WCA claims | Kirk | Credit Acceptance | Arbitration not required; waiver of arbitration found; circuit court did not err in denying stay. |
| What damages are available under Wis. Stat. §427.104(l)(j) and §425.304 | Kirk | Credit Acceptance | Only actual damages or statutory cap allowed; actual $1300 not to be supplemented by statutory double-damages; remanded to amend judgment. |
| Whether attorney's fees must be decided at a hearing | Kirk | Credit Acceptance | Hearing required to determine reasonable attorney's fees; remand for a hearing. |
Key Cases Cited
- Meyer v. Classified Ins. Corp. of Wis., 179 Wis.2d 386 (Ct. App. 1993) (waiver analysis for arbitration turns on overall conduct)
- Frank Lloyd Wright Found. v. City of Madison, 20 Wis.2d 361 (1963) (arbitration waiver standards; arbitration may be stayed when referable)
- J.J. Andrews, Inc. v. Midland, 164 Wis.2d 215 (Ct. App. 1991) (arbitration waiver; discovery and early litigation do not alone waive right)
- Dairyland Greyhound Park, Inc. v. Doyle, 295 Wis.2d 1 (2006) (contract interpretation and standard for ambiguity (de novo review))
- City of Madison v. Frank Lloyd Wright Found., 162 Wis.2d 100 (1965) (waiver/standard for arbitration and contract interpretation)