Commercial Law

Debtors – Nonjudicial Repossession – “Dwelling”

Duncan v. Asset Recovery Specialists Inc., 2022 WI 1 (filed 6 Jan. 2022)

HOLDING: In a nonjudicial repossession case, the term “dwelling” includes an apartment building’s parking garage.

SUMMARY: Duncan fell behind in her payments for her car loan. The lender, a bank, held a security interest in her car and opted for a nonjudicial repossession under Wis. Stat. sections 425.205(1g)(a) and 425.206(1)(d). The bank hired Asset Recovery Specialists (ARS) to repossess the car. Duncan lived in a multistory apartment complex, leasing a parking space in the building’s ground-floor garage. An ARS employee entered the garage through an open door and repossessed Duncan’s car.

Duncan filed this action alleging that the repossession was “unconscionable” and violated assorted statutes. The circuit court granted summary judgment to the defendants. In a published decision, the court of appeals reversed. See 2020 WI App 54.

The supreme court modified and affirmed the court of appeals’ opinion in an opinion authored by Justice Dallet. A majority of the court held that the “merchant” (ARS) violated section 425.206(2)(b) when it entered her “dwelling” without obtaining her voluntary consent. The phrase “dwelling used by the customer as a residence” in Wis. Stat. section 425.206(2)(b) includes a garage attached to the residential building in which the customer lives. ARS violated the statute when it “repossessed Duncan’s car from the parking garage of her apartment building without her consent” (¶ 23).

A second issue centered on Duncan’s claim that the merchant’s conduct was “unconscionable” under Wis. Stat. section 425.107(1). A plurality of the court concluded that “a consumer may assert a claim of unconscionability under Wis. Stat. § 425.107 only in response to ‘actions or other proceedings brought by a creditor to enforce rights arising from consumer credit transactions’” (¶ 28). It further concluded that “a non-judicial repossession pursuant to Wis. Stat. § 425.206(1)(d) is not one of the ‘actions or other proceedings brought by a creditor’ contemplated by Wis. Stat. § 425.102” (¶ 29).

Justice Karofsky concurred in the holding on the “dwelling” issue and the court’s mandate but disagreed “with the conclusion that a customer can never raise unconscionability as a defense to a non-judicial repossession” (¶ 36).

Dissenting, Justice Roggensack, joined by Chief Justice Ziegler and Justice R.G. Bradley, concluded that the term “dwelling” did not encompass the building’s garage and that the majority had not followed the statute’s plain meaning (see ¶ 90).

Taxation

Municipal Tax Assessments – Certiorari Review

State ex rel. City of Waukesha v. City of Waukesha Bd. of Review, 2021 WI 89 (filed 21 Dec. 2021)

HOLDING: A municipality cannot seek certiorari review of a tax assessment determination by the municipality’s own board of review.

SUMMARY: The City of Waukesha Board of Review determined the tax assessment for a piece of property owned by a church following a hearing at which the taxpayer and the city of Waukesha appeared as parties. The valuation of the property in question was contested. The Board accepted the church’s valuation.

The city then appealed the Board’s determination by seeking certiorari review in the circuit court pursuant to Wis. Stat. section 70.47(13). The Board moved to quash the writ, arguing that section 70.47 affords only taxpayers – not municipalities – the ability to seek certiorari review of a board decision. The circuit court disagreed and denied the motion to quash. In a published decision, the court of appeals reversed. See 2020 WI App 77.

In an unanimous opinion authored by Justice A.W. Bradley, the supreme court affirmed the court of appeals. It concluded that the controlling statute – Wis. Stat. section 70.47(13) – “does not allow the City to seek certiorari review of a decision of the Board [of Review]” (¶ 45).