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On May 12, Legal Action of Wisconsin, Inc. requested the Wisconsin Supreme Court either: “(1) enter an immediate, temporary order placing a moratorium on eviction actions in residential tenancies through June 30, 2021, due to the COVID-19 pandemic and the legal uncertainties surrounding the federal eviction moratorium; or (2) enter an immediate, temporary order placing a moratorium on any circuit court issuing a writ of restitution in residential eviction actions through June 30, 2021."  

In its request, Legal Action explains that it seeks the court-ordered eviction moratorium due to its concerns over the legal status of the Centers for Disease Control and Prevention's (CDC) nationwide eviction moratorium, set to expire June 30, 2021, which the CDC issued pursuant to the Public Health Service Act, 42 U.S.C. § 264. Legal Action noted that in a May 5 decision, the United States District Court for the District of Columbia held that because the Public Health Service Act does not grant the CDC the legal authority to impose the nationwide eviction moratorium, the moratorium must be vacated. That decision is now on appeal, and the District Court has stayed its order vacating the nationwide eviction moratorium pending appeal.  

In its denial, the Wisconsin Supreme Court stated that it is mindful of both (1) the COVID-related financial challenges facing many landlords and tenants and the importance of limiting COVID's spread and (2) the court’s proper role. The Wisconsin Supreme Court stated that Legal Action is essentially asking the Supreme Court to weigh the interests of tenants, landlords, and public health, and to declare that, as a matter of policy, the balance must be struck in favor of protecting tenants from eviction. The Wisconsin Supreme Court stated the ask is a legislative choice and that Legal Action need prove the merits of its request in the political arena, not with the Wisconsin Supreme Court, to obtain the relief Legal Action seeks. The Wisconsin Supreme Court denied the Legal Action of Wisconsin’s request for an eviction moratorium. Filings in the matter are available on the Wisconsin Supreme Court’s website

By, Alex Paniagua

Scott Birrenkott profileThe Wisconsin Supreme Court (Court) recently issued its decision in Security Finance v. Brian Kirsch. The Court concluded that a creditor’s failure to provide a notice of right to cure default does not constitute a sufficient basis for relief under Wisconsin’s Consumer Debt Collection law.

In Security Finance the debtor defaulted on the payment obligation of his loan agreement. The creditor did not issue a notice of right to cure default as required by Wis. Stat. 425.105 (425) before filing a small claims lawsuit against the debtor to enforce the loan agreement. The debtor counterclaimed, seeking damages by argument that failure to send the notice of right to cure default violated Wis. Stat. 427.104 (427). The creditor motioned to dismiss the counterclaims, which the circuit court granted. The Court of Appeals affirmed and its decision was upheld by the Court.

The parties stipulated that the creditor’s failure to provide sufficient notice of right to cure constituted a procedural violation, resulting in dismissal of the creditor’s initial claim. Thus, the Court focused its analysis on the debtor’s 427 claim. The debtor argued that by filing suit prior to providing the notice of right to cure, the creditor violated 427 by “harassing” the debtor. The Court found that the procedural defect of filing suit without first providing a notice of right to cure does not create liability under 427 in absence of a specific 427 violation. Meaning, failure to provide the right to cure under 425 does not automatically create a cause of action under 427. Furthermore, the Court indicated that even though the creditor “jumped the gun,” that did not negate its right to enforce compliance with the loan agreement.

In conclusion, a creditor’s failure to provide notice of right to cure under 425 does not constitute a sufficient basis for relief under 427. Wisconsin banks must still ensure they follow the procedural requirements under 425 and should consider the procedures by which they meet those notice requirements in relation to enforcement of loan obligations. However, failure to provide notice of right to cure does not, by itself, create a cause for action under 427.

By, Eric Skrum

In a tremendous win for Wisconsin’s banking industry, the Wisconsin Supreme Court affirmed a lower court decision in favor of Park Bank in the case of Koss Corp. v. Park Bank. The case addressed the issue of what constitutes “bad faith” under Wisconsin’s Uniform Fiduciary Act (UFA).

WBA filed an amicus brief as the case worked its way through the court system. Previously, there was little case law in Wisconsin interpreting “bad faith” under the UFA. This decision was critical in establishing a lasting definition of “bad faith” with which all banks must comply to avoid liability under the UFA.

This is huge news for Wisconsin’s banking industry. WBA will provide an in-depth analysis of the decision and its effect on the banking industry soon.

Read the Court’s full decision here.

View WBA’s amicus brief here.

By, Ally Bates

Q: Are Jury Waiver Clauses Contractually Enforceable in Wisconsin?

A: Yes. On April 13, 2017 the Wisconsin Supreme Court ruled that the jury waiver provision in the case of Parsons v. Associated Banc-Corp., 2017 WI 37 was enforceable.

The provision in question appeared within loan documentation, including the promissory note. Language within indicated that both parties waived any right to have a jury participate in resolving any dispute. The issue arose after the borrower filed suit against Associated and demanded a jury trial. The circuit court granted Associated’s motion to strike the jury demand based upon the waiver, but the court of appeals reversed that decision. The Wisconsin Supreme Court reversed the court of appeals’ position that a contractual waiver of the right to a jury trial was unenforceable.

In Its decision, the Supreme Court indicated that the ability to waive the right to a civil jury trial is already settled law. Under Article I, section 5 of the Wisconsin Constitution a person may waive his or her right to a civil jury trial in all cases in the manner prescribed by law. The Court found that this applies to contracts.

For Wisconsin banks that utilize jury waivers, WBA recommends reviewing them considering the Court’s decision. While the decision was favorable to the jury waiver provision at hand in this case, financial institutions will want to remain mindful of what made it so.

Read the Court's decision here

By, Scott Birrenkott