Executive Letter: Advocacy at the Court Level

Rose Oswald PoelsBy Rose Oswald Poels

Not only does WBA advocate on behalf of its members on the state and federal legislative front, but we also file as amicus curiae (Latin for friend of the court) with courts at an appellate level when significate banking-related issues are at hand. WBA, through the efforts of attorneys with the Boardman Clark Law Firm, has recently filed two amicus briefs on behalf of the membership.

Several weeks ago, WBA filed with the Wisconsin Supreme Court, and the court accepted, our brief expressing support of creditors’ rights under Wisconsin Consumer Act repossession rules. The question the court is to answer is whether when a creditor enters an open, semi-public, multi-space parking garage attached to a multi-unit apartment building for the purposes of taking possession of motor vehicle collateral, has the creditor entered a dwelling used by the customer as a residence.

How the court determines the answer to that question will result in whether the creditor violated Wisconsin’s self-help repossession procedures under Wisconsin Statute Chapter 425, or not. Oral arguments were heard by the court yesterday, September 15. I am hopeful the court will correctly interpret statutory language that an open, semi-public, multi-space parking garage is not a dwelling used by the customer as a residence.

Just this past week, WBA filed an amicus with the Wisconsin Supreme Court requesting the court accept our brief which urges the court to review a Court of Appeals decision concerning the rights of a holder of a first-position mortgage lien on real property assets to the proceeds of the sale of those assets in a Chapter 128 proceeding. The Court of Appeals subordinated the right of that secured, perfected creditor to unsecured, unperfected interests of others. I am hopeful the court will accept our request of amicus on behalf of the industry and review the Court of Appeals decision. WBA strongly believes the Court of Appeals decision is contrary to Wisconsin’s secured creditor priority laws.

WBA has long been involved in advocacy at the court level on behalf of the membership, and while it is impossible for WBA to participate in all cases involving banks and banking, WBA does have a policy it follows for determining when and whether to file as amicus curiae. In general, WBA considers participation only in cases of widespread importance to Wisconsin banks and only where the banking industry is in general agreement on the issues. Further, WBA will not participate when two or more members are opposing parties and will not participate until the matter is at an appellate level. Additionally, the WBA Board of Directors need approve WBA’s involvement to file as amicus.

Advocating on this front is of equal importance as our efforts on the legislative front, and I am optimistic as to the outcome of these two cases in favor of the interests of creditors. Stay tuned.