Bank of New York v. Carson (WI)

Summary: Wis. Stat. Ann. § 846.102 on abandoned property (1) dictates a five-week redemption period dependent on the condition of the property, (2) does not place a burden upon the plaintiff to prove abandonment, and (3) does not limit election of the five-week redemption period to plaintiffs only.


Go to full opinion.


Bank of New York v. Carson, 2013 WI App 153, 352 Wis. 2d 205, 841 N.W.2d 573.


Facts: On January 25, 2011, Bank of New York (‘BNY’) filed a foreclosure action against Shirley T. Carson (‘Carson’) concerning a residential property that she had already abandoned. BNY, aware of Carson’s abandonment of the property, registered the property as abandoned with the City of Milwaukee. On April 29, 2011, BNY filed a motion for default judgment, which the trial court granted, finding the property was non-owner occupied. The court ordered the property to be sold at any time within three months after the judgment was entered. Following the judgment, BNY did not perform its duty of inspecting the property every 30 days, nor did it notify the City of Milwaukee’s Department of Neighborhood Services that the property was abandoned. Because BNY failed to maintain the property, Carson made monthly payments of at least $25 to the City of Milwaukee to address fines resulting from the building code violations.

On November 6, 2012, more than sixteen months after the judgment of foreclosure was entered and more than a year after the redemption period had expired, Carson filed a motion to amend the trial court’s judgment, seeking a finding that the property was abandoned pursuant to Wis. Stat. § 846.102 (West) (‘Abandoned premises’). Carson also requested an order requiring a sale of the property after expiration of five week redemption period, enacted from the date of the amended judgment. Carson produced affidavits as proof of abandonment and an Advisory Notice issued by the Department of Neighborhood Services ordering BNY to register, maintain, and inspect the property. BNY opposed the motion, arguing that the applicable statute and equity did not permit the trial court to order it to hold a sale.

The trial court denied Carson’s motion. The court reasoned that, under statute, only BNY could elect when the five-week abandonment period began. The court also held that, under statute, it could not order BNY to hold a sale. Carson subsequently appealed.


Holding: Reversed and Remanded. On appeal, Carson argued that the trial court erred in denying her motion to amend the judgment based on the court’s interpretation of Wis. Stat. § 846.102. Carson specifically argued that the trial court’s interpretation of limiting the election of the five-week abandonment period to BNY was in error. Carson also argued that the trial court erred in determining that it lacked the authority to order a sale of the property. BNY argued that Wis. Stat. § 815.04 (‘Execution, when issued’) & § 846.18 (‘Tardy confirmation of sale’) permitted the bank to arrange a sale at any time within 5 years after a judgment and that the sale would still be timely.

The appellate court agreed with Carson, holding that based on the plain language reading of the statute, whether the five-week redemption period applied depended on the condition of the property and not the plaintiff’s preference. Further, there was nothing in the statute indicating that plaintiff had the burden of proof in proving abandonment, nor was there any language limiting election of the five-week redemption period to the plaintiff. Therefore, the court concluded that the trial court erred as a matter of law when it concluded that only BNY could elect the five-week abandonment period. Additionally, the statutory language indicated that the trial court did have the power to order BNY to sell the property when the redemption date expired, as the statute read that the sale of the mortgaged premises “shall” be made upon the expiration of the redemption period.

The court also summarily dismissed BNY’s argument, holding that Wis. Stat. § 815.04 (West) could not be applied before the five-week redemption date expired, and further that it was unreasonable to interpret a statute that mandates a sale ‘upon expiration of five weeks’ to mean a sale may be made any time within five years. The court also dismissed BNY’s argument concerning Wis. Stat. § 846.18 (West), stating that it pertained to situations involving the confirmation of sale and not the actual sale of property being timely made.


Opinion Year: 
By: ATG Underwriting Department | Posted on: Tue, 10/28/2014 - 11:03am