Bank of New York v. Carson

2013 WI App 153, 841 N.W.2d 573, 352 Wis. 2d 205, 2013 WL 6169403, 2013 Wisc. App. LEXIS 992
CourtCourt of Appeals of Wisconsin
DecidedNovember 26, 2013
DocketNo. 2013AP544
StatusPublished
Cited by5 cases

This text of 2013 WI App 153 (Bank of New York v. Carson) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of New York v. Carson, 2013 WI App 153, 841 N.W.2d 573, 352 Wis. 2d 205, 2013 WL 6169403, 2013 Wisc. App. LEXIS 992 (Wis. Ct. App. 2013).

Opinion

CURLEY, PJ.

¶ 1. Shirley T. Carson appeals the trial court's order denying her motion to amend a judgment of foreclosure on her former home. Carson, who moved to amend the judgment to include a finding [208]*208that the property was abandoned and to order Bank of New York (hereafter "the Bank") to sell the property upon the expiration of the five-week redemption period pursuant to Wis. Stat. § 846.102 (2011-12),1 argues that the trial court erred in denying her motion to amend the judgment. Specifically, she argues that the trial court erred in construing § 846.102 to mean that only the Bank could elect the five-week abandonment period provided in the statute, and argues that the trial court erred in determining that it did not have the authority to order a sale of the property. We agree with Carson and reverse and remand the order.

Background

¶ 2. On January 25, 2011, the Bank filed a foreclosure action against Carson concerning residential property located at 1422 West Concordia Avenue in Milwaukee. Carson, a sixty-two-year-old widow who was physically and financially unable to care for the property, did not answer or dispute the foreclosure. Indeed, as reflected in the Bank's "Affidavit of Reasonable Diligence," around the time the Bank initiated its foreclosure upon Carson's home, Carson had already vacated the property, and the Bank was aware that she had done so.

¶ 3. On April 26, 2011, the Bank registered the property as abandoned with the City of Milwaukee, see Milwaukee Municipal Code § 200-22.5 (requiring lenders who initiate foreclosure proceedings to inspect the property subject to foreclosure every thirty days, and requiring lenders to register and maintain abandoned property), and three days later, on April 29, 2011, the [209]*209Bank filed a motion for default judgment. In its motion, the Bank affirmed that the property was non-owner occupied based on property inspection records it maintained.

¶ 4. The trial court granted the Bank's motion for default judgment on June 13, 2011.2 The trial court signed the order provided by the Bank finding the property non-owner occupied at the commencement of the action and ordering that the property shall be sold at any time after three months from the date of entry of judgment. The trial court further enjoined all parties from committing waste upon the premises. Finally, the trial court ordered that "the plaintiff may take all necessary steps to secure and winterize the property in the event it is abandoned or becomes unoccupied during the redemption period or until such time as this matter is concluded."

¶ 5. Thereafter, despite receiving a notice from the City of Milwaukee's Department of Neighborhood Services reminding it to comply with its duty to inspect the property every thirty days, to notify the Department if the property was abandoned, and to maintain the property, the Bank did not maintain the property. The redemption period passed, but no sheriffs sale was scheduled. The property was later burglarized and vandalized. On June 26, 2012, the City of Milwaukee issued a notice of violation because the vacant house was not maintained in a closed or locked condition. On August 21, 2012, a City of Milwaukee inspector noted boxes, scrap wood and loose trash in the alley and backyard, as well as other debris on the property. Carson made monthly payments of at least $25 to the [210]*210City of Milwaukee toward the fines resulting from the unaddressed building code violations; however, as noted, she was unable to contribute anything further toward the upkeep of the property. In sum, the property was not maintained, was not sold, and became what is commonly known as a lender walkaway or a "zombie" property.3

¶ 6. 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 judgment. Carson filed her motion pursuant to Wis. Stat. § 806.07(g) & (h) seeking an amendment finding that the property was abandoned pursuant to Wis. Stat. § 846.102 and an order requiring a sale of the property to be made upon the expiration of five weeks from the date of the amended judgment so that the foreclosure would comply with § 846.102. In support of her motion, Carson submitted: an affidavit stating that she had abandoned the property, moved to a new address and notified the Bank about her move; the City of Milwaukee Registration of Abandoned Property in Foreclosure filed by the Bank; the Bank's Affidavit of Reasonable Diligence, in which facts consistent with abandoned property were alleged; and the Advisory Notice issued by the Department of Neighborhood Services ordering the Bank to register, maintain, and inspect the prop[211]*211erty. The Bank opposed the motion, arguing that neither the applicable statutory language nor equity permitted the trial court to order it to hold a sale.

¶ 7. The trial court denied Carson's motion. The trial court noted that there were no published decisions addressing whether a court may order a bank to sell a property within a certain period of time subsequent to the entry of a judgment of foreclosure. Given the dearth of authority on the matter, the trial court reasoned that it did not have the authority to order the sale of the property. Additionally, the trial court construed Wis. Stat. § 846.102 to mean that only the Bank could elect the five-week abandonment period provided in the statute. The trial court concluded:

[W]ithout any specific case, or even anything similar that can tell me that I can [amend the judgment], I can't find that I do have the authority to do this. In general, a plaintiff can't be compelled to execute a judgment that they have obtained.
[Wis. Stat. §] 815.04 talks about the execution of judgments, and they can be executed at any time within five years.
I would also note that the redemption period is generally elected by the plaintiff through their pleadings and through their decisions to seek deficiency judgment or not seek a deficiency judgment.
The burden of proof as to abandonment is on the plaintiff, so the statutory scheme contemplates an election by the plaintiff of that redemption period.
So given all of that, I can't find anywhere in the statute that I have the authority to grant the relief that [Carson is] requesting....

¶ 8. Because the trial court found that it did not have the authority to grant Carson relief, it did not [212]*212reach the question of whether there were grounds for relief pursuant to Wis. Stat. § 806.07 or whether relief would be equitable in light of the facts of the case. Carson appeals.

Analysis

¶ 9. On appeal, Carson argues that the trial court erred in denying her motion to amend the judgment.

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Related

Bank of New York v. Shirley T. Carson
2015 WI 15 (Wisconsin Supreme Court, 2015)
Bank of America, N.A. v. Prissel
2015 WI App 10 (Court of Appeals of Wisconsin, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
2013 WI App 153, 841 N.W.2d 573, 352 Wis. 2d 205, 2013 WL 6169403, 2013 Wisc. App. LEXIS 992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-new-york-v-carson-wisctapp-2013.