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Weekly Case Digests – May 20, 2019 – May 24, 2019

By: WISCONSIN LAW JOURNAL STAFF//May 24, 2019//

Weekly Case Digests – May 20, 2019 – May 24, 2019

By: WISCONSIN LAW JOURNAL STAFF//May 24, 2019//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: L.D.R. v. Nancy A. Berryhill

Case No.: 18-1763

Officials: BAUER, ROVNER, and BRENNAN, Circuit Judges.

Focus: ALJ Error – Disability Benefits

A mother contests the decision that her minor son (whom we refer to as L.D.R.) did not qualify for social security disability benefits until second grade. She also seeks retroactive payments for the first year of L.D.R.’s life, before she applied for assistance, challenging the constitutionality of social security laws that bar benefits before application.

We conclude that the administrative law judge’s opinion was properly reasoned and well supported by substantial evidence. We also reject the mother’s constitutional challenge to the social security laws and agree with the district court’s review of the ALJ’s opinion. So we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Rafaela Aldaco v. RentGrow, Inc.

Case No.: 18-1932

Officials: WOOD, Chief Judge, and EASTERBROOK and BRENNAN, Circuit Judges.

Focus: Statutory Interpretation

In 1996 Rafaela Aldaco pleaded guilty to battery and received a sentence of six months’ supervision, a diversionary disposition under Illinois law. See 730 ILCS 5/5-1-21, 5/5-6-3.1. The state court entered a finding of guilt and deferred proceedings while Aldaco served her sentence. After Aldaco complied with the conditions of her supervision, the court dismissed the charge. Although Aldaco could have had the battery record expunged, she did not ask the court to do so charge.

Aldaco then filed suit, contending that Yardi—as a consumer reporting agency—violated the Fair Credit Reporting Act (FCRA) when it disclosed her criminal history to the landlord. The Act prohibits reporting agencies from disclosing any arrest record or other adverse item more than seven years old but permits them to report “records of convictions of crimes” no matter how long ago they occurred. See 15 U.S.C. §1681c(a). The Act does not define the word “conviction.” Aldaco’s primary argument is that a sentence of supervision in Illinois is not a conviction under the Act. In the district court she asserted two propositions: (1) that “conviction” in the Act means “conviction as defined by state law,” and (2) that she has not been convicted as Illinois law understands that word. The district judge held that Yardi was entitled to summary judgment, concluding that “conviction” has a federal definition, under which Aldaco’s battery record qualifies. Aldaco now appeals to us, again asserting that Illinois law supplies §1681c(a)’s definition of conviction.

Aldaco has another problem: her protest to Yardi contended only that the battery record wasn’t hers. She did not dispute the reported length of the sentence or the omission of the charge’s dismissal. After receiving the complaint, Yardi had a duty to reinvestigate only whether “disputed information” was inaccurate. 15 U.S.C. §1681i(a)(1)(A). Yardi did investigate and confirm with its sources the only information that was disputed: whether the battery record pertained to Aldaco.

Affirmed

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7th Circuit Court of Appeals

Case Name: Juan Carlos Garcia-Martinez v. William P. Barr

Case No.: 18-1797

Officials: WOOD, Chief Judge, and SYKES and SCUDDER, Circuit Judges.

Focus: Immigration – Removal Order

The task of identifying a “crime involving moral turpitude” has vexed courts and agencies for decades, if not centuries. “Moral turpitude” tends to be defined very broadly. So, for example, one reads in Black’s Law Dictionary (10th ed. 2014), that it is “conduct that is contrary to justice, honesty, or morality; esp., an act that demonstrates depravity.” Webster’s Third New International Dictionary defines it as “1: an act or behavior that gravely violates the moral sentiment or accepted moral standards of the community; esp.: sexual immorality …; 2: the morally culpable quality held to be present in some criminal offenses as distinguished from others ….” The Board of Immigration Appeals offers this: “The term ‘moral turpitude’ generally refers to conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (BIA 2016) (Silva-Trevino III). Each of those definitions leaves a lot of work to be done when particular crimes or specific acts must be characterized. Nonetheless, there is a rough consensus that the phrase is more than an epithet. The Supreme Court has held that crimes involving fraud.

Garcia-Martinez contends, his crime of conviction is not categorically one of moral turpitude. The Board found that there was no realistic probability that the New Jersey law could be applied to conduct outside the scope of the generic crime. It therefore concluded that Garcia-Martinez’s earlier conviction was for a crime involving moral turpitude. On Garcia-Martinez’s petition for review, we conclude that the Board committed several legal errors that may have affected its decision. We thus grant the petition and remand for further proceedings.

Petition Granted and remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Nikesh A. Patel

Case No.: 18-1685

Officials: WOOD, Chief Judge, and FLAUM and SYKES, Circuit Judges.

Focus: Sentencing Guidelines

The government charged defendant‐ appellant Nikesh Patel with five counts of wire fraud, in violation of 18 U.S.C. § 1343, for his role in selling $179 million in fraudulent loans to an investment advisor. Patel pleaded guilty to all five counts and delayed his sentencing date for a year while he purported to help recover funds for the victims of his scheme. But, while on bond and just days before he was to be sentenced, Patel attempted to flee the United States and seek political asylum elsewhere; agents arrested him just before he boarded a chartered flight to Ecuador. The district court then sentenced Patel to 25 years’ imprisonment followed by 3 years’ supervised release. Patel appeals, arguing that his sentence is both procedurally and substantively unreasonable. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Bernard L. Cherry

Case No.: 18-1157

Officials: HAMILTON, BARRETT, and SCUDDER, Circuit Judges.

Focus: Jury Instructions

Bernard Cherry appeals his conviction as a felon in possession of a firearm on the ground that the district court erred by not giving the jury his proposed “innocent possession” instruction. He also claims that the district court erred by not asking whether he wanted the jury to determine the forfeitability of the firearm in the event of a guilty verdict.

Because we have never recognized an innocent possession defense and because the facts here don’t support such a defense even if we were to recognize it, the district court did not err in refusing to give the instruction. And given that no reasonable juror could have failed to find a nexus between the gun and Cherry’s felon-in-possession conviction, the district court’s failure to ask either party whether it wanted the jury to determine the forfeitability of the firearm did not affect Cherry’s substantial rights. We affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Paul Regains v. City of Chicago

Case No.: 15-2444

Officials: FRANK H. EASTERBROOK, Circuit Judge, DAVID F. HAMILTON, Circuit Judge, PAMELA PEPPER, District Judge*

Focus: Amended Opinion

The opinion of this court issued March 13, 2019, is amended as follows: Page 2, carryover paragraph, eighth line, “failing to a report a” is replaced by “failing to report a” Page 5, carryover paragraph, fifth line, “in custody until his December 3, 2012 trial—” is replaced by “in custody until his December 3, 2013 trial—”

Page 7, second full paragraph, second and third lines, “He was arraigned and detained by lawful process on September 4, 2012;” is replaced by “He was arraigned and detained by lawful process on September 3, 2012, or earlier;” Page 7, second full paragraph, eighth line, “on December 3, 2012— the date he was acquitted.” is replaced by “on December 3, 2013—the date he was acquitted.” Page 7, second full paragraph, tenth line, “claims properly fell” is replaced by “claim properly fell” Page 8, carryover paragraph, tenth and eleventh lines, “December 3, 2012,” is replaced by “December 3, 2013,” Page 12, first full paragraph, third line, “or marshal proof the proof at summary judgment” is replaced by “or marshal proof at summary judgment” Page 12, first full paragraph, tenth line, “To state a Monell claim,” is replaced by “To prove a Monell claim,”.

Plaintiff-appellant filed a petition for rehearing on March 27, 2019. All of the judges on the panel have voted to deny rehearing. The petition for rehearing is therefore DENIED.

Denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Z Investment Properties, LLC, et al.

Case No.: 18-1915

Officials: BAUER, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Tax Lien – Foreclosure

Carroll V. Raines (“Raines”) and his wife, Lizzie Mae Raines, purchased their home in 1975 as joint tenants and not tenants in common. When Raines’ wife died, he became the sole owner of 18952 W. Oak Avenue, Mundelein, Lake County, Illinois (the “Property”). Raines was the sole owner of the Property at the time of his death in July 2009. Raines died intestate with six heirs. On August 9, 2010, the United States recorded a notice of federal tax lien (the “Notice”) against Raines with the Lake County Recorder of Deeds for taxes and penalties in the amount of $115,022.42. The Notice incorrectly identified “Carrol V. Raines” as the debtor, omitting the second “l” from his first name, and failed to include a legal description or permanent index number for the Property, but did correctly identify it by its address—18952 W. Oak Avenue, Mundelein, Lake County, Illinois.

In November 2010, Raines’ heirs conveyed their interest in the Property to Chicago Title Land Trust Company (“Chicago Title”). Following its acquisition of the Property, Chicago Title made improvements and capital investments in the Property. On June 12, 2017, the Government instituted proceedings seeking to foreclose the tax lien against the Property. The complaint named Chicago Title, several other financial institutions, and municipal entities. By November 2017, the parties agreed to waive any discovery and filed cross‐motions for summary judgment, asking the court to rule on the enforceability of the federal tax liens and whether the affidavit of William Bond (“Bond”) was admissible.

On April 2, 2018, the district court granted the Government’s motion and denied Z Investment Properties, LLC (“Z Investments”) and Chicago Title’s (collectively, the “Appellants”) motion. The district court found that: the Appellants had adequate notice of the tax lien because it conformed to the applicable provisions of the Internal Revenue Code; and the Government could enforce the tax lien which encumbered the Property. The district court also found Bond’s affidavit was partially inadmissible and struck paragraphs 5‐7, 10‐12, 14, 20, and 21. Final Judgment was entered on April 9, 2018. For the reasons stated below, we agree and affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: City of Joliet, Illinois, v. New West, L.P., et al.

Case No.: 18-1787

Officials: EASTERBROOK, SYKES, and BARRETT, Circuit Judges.

Focus: Condemned Property – Forum Selection

This appeal is New West V in a saga that began in 2005 when Joliet proposed to condemn and raze the Evergreen Terrace apartments as a public nuisance. By 2017 the district court had held that Joliet is entitled to condemn the buildings, had set just compensation at about $15 million, and had held that New West cannot obtain relief against the City under federal housing discrimination statutes. New West, L.P. v. Joliet, 891 F.3d 271 (7th Cir. 2018) (New West IV), affirms the last of those decisions, and we supposed that the litigation was over. New West thus has a choice: the district court or the Court of Federal Claims. It cannot pursue both options at once, however. See 28 U.S.C. §1500; United States v. Tonoho O’odham Nation, 563 U.S. 307 (2011). In either forum, the judge should start from scratch, disregarding the missteps in the condemnation suit. We have nothing to say here about the merits of that dispute, which must receive a proper airing before it is resolved on appeal—and if the suit proceeds in the Court of Federal Claims, final decision on the merits belongs to the Federal Circuit rather than to us. The district court’s decision is vacated.

Vacated

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: London Scott Barney, et al. v. Julie Mickelson, MD, et al.

Case No.:  2017AP1616

Officials: Kessler, P.J., Brennan and Brash, JJ.

Focus: Jury Instructions

Raquel and London Barney, through London’s guardian ad litem (collectively, the Barneys), appeal an order for judgment entered on a jury verdict dismissing their medical malpractice claim against Dr. Julie Mickelson, Columbia St. Mary’s Hospital Milwaukee, Inc., and the Injured Patients and Families Compensation Fund. They also appeal from the trial court’s denial of their request for a new trial. We conclude that the trial court erred when it instructed the jury that it should not find Dr. Mickelson negligent if she merely made a choice between alternative methods of treatment. The issue in this case is not whether Dr. Mickelson chose between two recognized methods of treatment, but whether she negligently failed to determine whether an external fetal heart monitor placed on Raquel’s abdomen was accurately measuring London’s heart rate and ultimately failed to recognize signs of fetal oxygen depletion. Consequently, also at issue is whether Dr. Mickelson failed to employ a more accurate method of tracing the fetal heart rate. We reverse and remand for a new trial.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert Brian Spencer

Case No.: 2017AP1722-CR

Officials: Kessler, P.J., Brennan and Brash, JJ.

Focus: Sufficiency of Evidence

Robert Brian Spencer appeals from his judgment of conviction entered after a jury convicted him of possession with intent to deliver ten to fifty grams of heroin as a second or subsequent offense, and possession of a firearm by a felon. He also appeals from an order denying his motion for postconviction relief. In that motion, Spencer argued that (1) there was insufficient evidence to support the jury’s verdict; (2) his trial counsel was ineffective for failing to call additional witnesses and investigate a potential challenge to the testimony of one of the police officers involved in the case; (3) his trial counsel was ineffective for failing to file a motion to suppress the evidence obtained after the execution of a search warrant; and (4) the State committed a Brady violation in failing to turn over portions of the personnel record of a police officer who was previously disciplined in an unrelated case.

The trial court granted Spencer’s request for a Machner hearing regarding his ineffective assistance claim relating to counsel’s failure to call additional witnesses, but denied the remainder of Spencer’s motion. At the end of the Machner hearing, the court denied that ineffective assistance claim as well, finding that trial counsel was not deficient and that Spencer had not demonstrated that he was prejudiced because the outcome of the trial would likely not have been different. We affirm.

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WI Court of Appeals – District III

Case Name: Timothy Rabitoy v. Robert O. Billington, et al.

Case No.: 2018AP270

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Safe Place Act – Unsafe Work Conditions

Timothy Rabitoy was severely injured when a truck rolled off a car hoist while he and his friend, Richard Klobucher, were attempting to repair the truck’s transmission. Rabitoy appeals a summary judgment dismissing his claims against the owner of the hoist, Robert Billington (Billington), and Billington’s business, Billington Contracting, Inc. (Billington Contracting). The issues on appeal are: (1) for purposes of Rabitoy’s claim under the Safe Place Act, whether the hoist constituted an unsafe condition associated with Billington’s property—and, if so, whether Billington had notice of this fact; and (2) for purposes of Rabitoy’s other claims against Billington or Billington Contracting, whether Klobucher’s use of the hoist was within the scope of his employment with either of them. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Raymond K. Thompson

Case No.: 2017AP2090-CR

Officials: Blanchard, Sherman, and Kloppenburg, JJ.

Focus: Ineffective Assistance of Counsel

Raymond K. Thompson appeals a judgment convicting him of three counts of first-degree sexual assault of a child, and an order denying his postconviction motions seeking a new trial due to the ineffective assistance of trial counsel and in the interest of justice. For the reasons that follow, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Sheldon K. Miller

Case No.: 2018AP247-CR

Officials: Lundsten, P.J., Blanchard, and Fitzpatrick, JJ.

Focus: Abuse of Discretion – Other Acts Evidence

Sheldon Miller appeals the judgment of conviction, following a jury trial, for first degree child sexual assault involving sexual contact with a person under age 13 as a persistent repeater. Miller makes the following arguments: (1) his trial counsel provided ineffective assistance by failing to object to remarks by a prosecutor about the victim having “cognitive delays”; (2) the circuit court erroneously exercised its discretion in allowing the State to admit “other-acts” evidence in the form of allegations regarding Miller’s sexual assaults of two boys in 1990; and (3) the circuit court violated his rights to due process and a fair trial by allegedly misstating the State’s burden of proof during jury selection and by delaying the reading of the standard burden of proof instruction to the jury. Miller also apparently intends to make an ineffective assistance of counsel argument based on the cumulative effect of alleged acts of deficient performance by trial counsel. We reject each argument and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Felipe Estrada, III,

Case No.: 2018AP325-CR

Officials: Lundsten, P.J., Blanchard and Kloppenburg, JJ.

Focus: Court Error – Jury Instructions

Estrada was charged with, tried for, and convicted of two crimes that both required proof that his blood contained a controlled substance at the time he operated a motor vehicle. With respect to the particular alleged controlled substance, an expert called by the State testified at trial that Estrada’s blood tested positive for a synthetic cannabinoid, and more specifically that the particular synthetic cannabinoid was “5F-AMB.” Estrada makes two arguments on appeal. First, he argues that the circuit court erred by permitting the State’s expert to testify at trial, even though the expert report that the State produced pretrial failed to give sufficient notice of the content of his testimony. Second, Estrada contends that the circuit court erred when it instructed the jury that “5F-AMB” is a controlled substance because that issue was a fact question for the jury. We reject these arguments and affirm.

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WI Court of Appeals – District IV

Case Name: J.P. v. A.P.

Case No.: 2018AP1775; 2018AP1776; 2018AP1777; 2018AP1778

Officials: LUNDSTEN, P.J.

Focus: Termination of Parental Rights

A.P. appealed the circuit court’s orders terminating her parental rights to her children A.P., D.P., N.P., and T.P. After these appeals were filed, this court remanded to the circuit court and the termination orders were vacated. Therefore, all that remains is A.P.’s challenge to a statutory jurisdictional ruling and, if I conclude that the jurisdictional ruling was in error, the appropriate remedy. More specifically, the jurisdictional issue is whether the circuit court correctly found, under WIS. STAT. § 822.23, that it had jurisdiction to enter an order modifying a Minnesota custody order. I agree with A.P. that, based on the record before it, the circuit court had insufficient information to affirmatively find that it had such jurisdiction. As to the proper remedy, I reject A.P.’s request for dismissal of these actions and instead remand for further proceedings.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Gary E. Grass

Case No.: 2019 WI 35

Focus: Attorney Disciplinary Proceedings

We review a stipulation filed pursuant to Supreme Court Rule (SCR) 22.12 by the Office of Lawyer Regulation (OLR) and Attorney Gary E. Grass. In the stipulation, Attorney Grass admits that he committed professional misconduct, and he agrees with the OLR’s request that his license to practice law in Wisconsin be suspended for a period of 60 days.

After careful review of the matter, we accept the stipulation and impose the requested discipline. Because Attorney Grass entered into a comprehensive stipulation before the appointment of a referee, we do not require him to pay the costs of this proceeding.

License suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. B.C. Fischer

Case No.: 2019 WI 36

Focus: Attorney Disciplinary Proceedings

This is a reciprocal discipline matter. On January 14, 2019, the Office of Lawyer Regulation (OLR) filed a complaint and motion pursuant to Supreme Court Rule (SCR) 22.22, requesting this court suspend Attorney B.C. Fischer’s license to practice law in Wisconsin for a period of 90 days, and direct him to comply with the terms of a Minnesota court order, as reciprocal discipline identical to that imposed by the Minnesota Supreme Court.

Attorney Fischer and the OLR executed a stipulation, in which Attorney Fischer agrees that he should be suspended for a period of 90 days as discipline reciprocal to that imposed by the Supreme Court of Minnesota, and directed to comply with the conditions imposed by the Minnesota court. Upon our review, we accept the stipulation and we suspend Attorney Fischer’s license to practice law in Wisconsin for a period of 90 days and order him to abide by the terms imposed by the Supreme Court of Minnesota. The OLR does not seek costs. Because the parties were able to resolve this matter without appointment of a referee, no costs will be imposed.

License suspended

Concur:

Dissent:
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WI Supreme Court

Case Name: Town of Lincoln v. City of Whitehall

Case No.: 2019 WI 37

Focus: Court Error – Annexation

The petitioner, Town of Lincoln, seeks review of a published court of appeals decision affirming the circuit court’s orders granting the City of Whitehall’s motion to dismiss and motion for summary judgment. The Town aims to challenge the City’s annexation of a portion of the Town. Specifically, the Town contends that the court of appeals’ decision was based on the erroneous classification of the petition as one for direct annexation by unanimous approval even though the annexation petition lacked the signatures of all the required landowners. It asserts that the court of appeals erred in limiting the grounds on which the Town may challenge the annexation.

We conclude that the annexation petition in this case is not a petition for direct annexation by unanimous approval. Because the limitations on annexation challenges set forth in Wis. Stat. § 66.0217(11)(c) (2015-16)2 pertain to petitions for direct annexation by unanimous approval only, such limitations do not apply here. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court.

Reversed and remanded

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Patrick J. Hudec

Case No.: 2019 WI 39

Focus: Attorney Disciplinary Proceedings

We review Referee Richard M. Esenberg’s report and recommendation concluding that Attorney Patrick J. Hudec violated the rules of professional conduct in connection with his representation of two clients, D.B. and N.K. The referee recommended that this court impose a 60-day suspension of Attorney Hudec’s law license and condition Attorney Hudec’s continued practice of law on his satisfaction of a monetary judgment entered in N.K.’s civil lawsuit against him. We adopt the referee’s findings of fact, conclusions of law, and recommendation regarding discipline. We impose the full costs in this matter, which total $4,319.04 as of January 24, 2019.

License suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Nelson Garcia, Jr.

Case No.: 2019 WI 40

Focus: Amicus Brief Filed

An amicus curiae brief was submitted on behalf of The Innocence Project, Inc., and The Wisconsin Innocence Project of the Frank J. Remington Center, University of Wisconsin Law School, by Keith A. Findley and Wisconsin Innocence Project, Madison. With whom on the brief was Alexis Agathocleous and The Innocence Project, Inc., New York, New York.

Affirmed

Concur:

Dissent:
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WI Supreme Court

Case Name: Security Finance v. Brian Kirsch

Case No.: 2019 WI 42

Focus: Wisconsin Consumer Act Violation

This is a review of an unpublished decision of the court of appeals, Security Finance v. Kirsch, No. 2017AP1408, unpublished slip op. (Wis. Ct. App. Apr. 11, 2018), affirming the Washington County circuit court’s order. The order granted Security Finance’s (“Security”) motion to dismiss Brian Kirsch’s (“Kirsch”) counterclaims against Security arising under Wis. Stat. chs. 425 and 427 (2015-16). The court of appeals affirmed the circuit court, concluding that Kirsch’s counterclaims were properly dismissed.

This court must consider whether a debtor who has been sued on a consumer credit transaction without first receiving a notice of right to cure default under ch. 425 may sue the creditor for damages under ch. 427, the Wisconsin Consumer Act (“WCA”). We conclude that a creditor’s failure to provide such notice does not constitute a sufficient basis for relief under ch. 427. As a result, Kirsch’s counterclaims were properly dismissed, and we affirm the court of appeals.

Affirmed

Concur:

Dissent:

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