A borrower must suffer at least some actual injury or damage to sue under sec. 224.80(2) because a mortgage broker did not use the correct forms prepared by the DFI.
“To read the statute as Avudria suggests, as a strict liability statute permitting a private cause of action for a mere technical violation of Wis. Stat. ch. 224, requires that the word ‘aggrieved’ be read out of the statute. ‘We avoid a construction of a statute that results in words being superfluous.’ WDOR v. River City Refuse Removal, Inc., 2007 WI 27, ¶45, 299 Wis. 2d 561, 729 N.W.2d 396. The legislature qualified the private-cause-of-action provision with the phrase ‘person who is aggrieved’ for a reason. If the legislature had intended to permit all borrowers to file suit for violations of ch. 224, regardless of whether the borrower was injured by the violation, it could have drafted the statute in a manner that omitted the word ‘aggrieved’; the legislature could simply have said that a mortgage broker is liable for the statutorily-prescribed damages if it fails to use the forms. Because the legislature included the word ‘aggrieved,’ we must interpret it to have meaning.”
Affirmed. Recommended for publication in the official reports.
2010AP2032 Avudria v. McGlone Mortgage Co., Inc.
Dist. I, Milwaukee County, Brash, J., Brennan, J.
Attorneys: For Appellant: O’Reilly, Robert K., Cudahy; Blythin, John D., Cudahy; For Respondent: Laing, Dean P., Milwaukee