Notice of hearing not required

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A confirmation hearing is not required in a foreclosure action if the defendants did not appear in the case.

The Wisconsin Court of Appeals on Sept. 16 held that sec. 846.165(1) does not expressly or implicitly require a hearing when no one appears. “Homeowners subject to foreclosure … and other interested parties can protect their interests in a fair value sale by making an appearance,” Judge Paul Lundsten wrote for the court.

In 2007, after James J. Biba and Lisa S. Clason defaulted on their mortgage, Wells Fargo Bank., N.A., filed a complaint seeking foreclosure. Both Biba and Clason were served, but neither filed an answer or otherwise appeared in the case.

The circuit court entered default judgment and ordered the property be sold at auction.

Wells Fargo was the highest bidder, and submitted a letter to the court, requesting that it sign an order confirming the sale. Wells Fargo did not give notice to any party.

In May 2009, without a hearing, the circuit court confirmed the sale. Three weeks later, Biba moved the court to vacate the order. The court denied the motion and Biba appealed, but the Court of Appeals affirmed.

The first sentence of sec. 846.165(1) provides, “No sale on a judgment of mortgage foreclosure shall be confirmed unless 5 days’ notice has been given to all parties that have appeared in the action.”

The second states the requirements the notice must provide and says it must be mailed “at least 5 days prior to the date when the motion for confirmation is to be heard.”

The court held that no notice was required to be given to Biba because the statute explicitly states that notice need only be given to parties “that have appeared” in the case.

Second, the court held that a confirmation hearing is not a statutory prerequisite to confirmation when no notice is required.

Judge Lundsten wrote, “Nothing in section 846.165(1) suggests that there is a general hearing requirement. Rather, the only possible hearing requirement is triggered by the need to give an appearing party notice. In that situation, the statute may indirectly require a hearing in that the statute assumes that a hearing will be held.”

The court acknowledged, “If, as this statutory language directs, the notice must be mailed before a hearing and must contain the time and place of a hearing, then it may be that the legislature intended to require a hearing when an appearing party is entitled to notice.”

But the court found no implicit requirement for a hearing when no one appears in the case.

Finally, the court found no statutory requirement for a formal motion for confirmation, as opposed to the letter that was sent by Wells Fargo, nor that any purpose would be served by such a requirement.

The court explained, “We acknowledge that a motion might serve some other purpose, such as notifying the court that the time is ripe to confirm a sale. But it does not follow that a motion is the only means of accomplishing that purpose, much less that the statute requires a motion in all instances (emphasis by court).”

David Ziemer can be reached at [email protected].