Property – foreclosure

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Wisconsin Court of Appeals

Civil

Property – foreclosure — abandonment

A trial court has the power to order a lender to sell foreclosed property upon the expiration of the redemption period.

“Given the plain language of the statute, it is clear that whether or not the five-week redemption period may be applied to a particular property depends on the condition of the property, not the plaintiff’s preference. Contrary to the trial court’s conclusion, there is nothing in the statute placing the burden upon a plaintiff—in this case, the Bank—to prove abandonment. Nor is there any language limiting election of the five-week redemption period only to the plaintiff. Indeed, the statute plainly provides that any party to a foreclosure action, as well as municipal representatives, are permitted to present evidence of abandonment. See WIS. STAT. § 846.102(2) (‘In addition to the parties to the action to enforce a mortgage lien, a representative of the city, town, village, or county where the mortgaged premises are located may provide testimony or evidence….’) (emphasis added). We therefore conclude that the trial court erred as a matter of law when it concluded that only the Bank could elect the five-week abandonment period provided in the statute. The trial court could have, given the evidence presented by Carson—specifically, the affidavit in which Carson stated that she had abandoned the property and the City of Milwaukee Registration of Abandoned Property in Foreclosure filed by the Bank, among other documents—decided to amend the judgment to a foreclosure of an abandoned property as described by § 846.102.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP544 Bank of New York v. Carson

Dist. I, Milwaukee County, Carroll, J., Curley, J.

Attorneys: For Appellant: Hartman, April A.G., Milwaukee; For Respondent: Foshag, William N., New Berlin