By: WISCONSIN LAW JOURNAL STAFF//December 22, 2011//
Wisconsin Court of Appeals
Civil
Property – foreclosure — offset
The judgment against a guarantor in a foreclosure action should have been offset by the fair market value of the property.
“[W]hile the preference for a monetary remedy is a real and practical one that is sufficient to avoid mootness, that preference does not mean that the Bank did not recover property valued at $147,000 through the foreclosure action. The Bank decided to submit a bid and ultimately took title to the property, and it cannot thereafter deny the significance of that fact to the calculation of the total debt at issue. Stated another way, having decided to take title to the property by acquiring it at a sheriff’s sale, and having affirmatively paid no funds for the property, the Bank cannot now claim that it is proceeding against Sherry as though it did not also proceed against the debtors in foreclosure. The Bank cannot now obtain relief based on the false premise that it has proceeded against Sherry alone as its exclusive remedy to recover on the debt.”
Reversed and Remanded.
Recommended for publication in the official reports.
2010AP2473 McFarland State Bank v. Sherry
Dist. IV, Dane County, Colas, J., Blanchard, J.
Attorneys: For Appellant: Loniello, Nicholas, Madison; For Respondent: Starkweather, John P., Madison