2010AP3036 U.S. Bank v. Landa

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Property
Condominium liens; mortgages; priority

Regardless of which of two mortgages on a condominium was recorded first, the mortgage intended to be the first mortgage is the first mortgage under sec. 703.165(5).

“Meadowland asks us to read WIS. STAT. § 703.165(5)(b) to mean that the first mortgage recorded is the only mortgage lien superior to a condominium lien, even if the terms of the first recorded mortgage clearly state that it is subordinate to another mortgage. Meadowland’s theory fails as both the $168,000 mortgage and the $42,000 mortgage were recorded prior to Meadowland’s condominium liens. Section 703.165(5)(b) states that ‘a first mortgage’ recorded prior to a condominium assessment is the only mortgage lien superior to a condominium lien. (Emphasis added.) The statute does not say ‘the first mortgage’ recorded prior to a condominium assessment is the only mortgage lien that is superior to a condominium lien. We may not ignore the plain meaning of a statute. See State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. The mortgages on their face reflect that the $168,000 U.S. Bank mortgage is superior to the $42,000 mortgage. The fact that the $42,000 mortgage was recorded prior to the $168,000 mortgage—with both mortgages being recorded before Meadowland’s condominium liens were filed—does not alter the $168,000 mortgage’s contractual status as the first mortgage.”

Reversed and Remanded.

Recommended for publication in the official reports.

2010AP3036 U.S. Bank v. Landa

Dist. II, Kenosha County, Wilk, J., Reilly, J.

Attorneys: For Appellant: Potteiger, David M, Milwaukee; For Respondent: Infusino, Nicholas J., Kenosha

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