Horizon Bank, National Association v. Marshalls Point Retreat LLC

2018 WI 19, 908 N.W.2d 797, 380 Wis. 2d 60
CourtWisconsin Supreme Court
DecidedMarch 6, 2018
Docket2016AP000832
StatusPublished
Cited by15 cases

This text of 2018 WI 19 (Horizon Bank, National Association v. Marshalls Point Retreat LLC) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horizon Bank, National Association v. Marshalls Point Retreat LLC, 2018 WI 19, 908 N.W.2d 797, 380 Wis. 2d 60 (Wis. 2018).

Opinions

ANN WALSH BRADLEY, J.

*64¶1 The petitioner, Allen S. Musikantow (Musikantow), seeks review of an unpublished per curiam decision of the court of appeals directing that the circuit court apply a credit of $2,250,000 to a money judgment entered against Musikantow as guarantor of a loan.1 Musikantow contends that the court of appeals erred by limiting the credit to the amount of the winning bid at the sheriff's sale thereby precluding the circuit court from hearing evidence of the fair value of the property after the confirmation of sale.

¶2 Specifically, Musikantow contends that Wis. Stat. § 846.165 (2015-16)2 does not require a circuit court to make a determination of a guaranty credit at *65the time the foreclosure sale is confirmed. He further argues that circuit courts have the discretion to decouple guaranty-related rulings from underlying foreclosure sales.

¶3 We conclude that Wis. Stat. § 846.165 does not apply to credits toward a judgment on a guaranty. Rather, it applies to the relationship between only the mortgagee *800and mortgagor who signed the promissory note underlying the mortgage. It therefore cannot serve as authority for the proposition that, when confirming a foreclosure sale, a circuit court must determine the amount of a credit to be applied to a judgment on a guaranty.

¶4 Further, we conclude that when an action for foreclosure against a mortgagor and an action for a money judgment on a guaranty are brought in the same proceeding as in the instant case, the circuit court may, in its discretion, decide the amount of a credit to be applied to a judgment on a guaranty either at the time the sale is confirmed or at another time. The questions of fair value for purposes of Wis. Stat. § 846.165 and the amount of any credit toward the judgment on the guaranty are separate questions. Thus, the circuit court did not erroneously exercise its discretion when it decoupled the confirmation of sale from the determination of the guaranty credit.

*66¶5 Finally, we determine that the stipulation in this case does not establish that the amount of the winning bid at the sheriff's sale shall be the sole credit toward the money judgment against Musikantow.

¶6 Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings to determine the amount of the credit to be applied toward the judgment against Musikantow as guarantor.

I

¶7 Horizon Bank, National Association (Horizon Bank) loaned $5 million to Marshalls Point Retreat LLC (Marshalls Point), secured by a mortgage on property located in Sister Bay.3 Musikantow, a member of Marshalls Point, signed a continuing guaranty of payment for the loan.

¶8 Alleging that Marshalls Point had defaulted on the loan, Horizon Bank brought a foreclosure action. In the same action, Horizon Bank also brought a claim for a money judgment against Musikantow pursuant to the terms of the guaranty.

¶9 The parties stipulated to the entry of judgment on both of Horizon Bank's claims. The stipulation contained an order for judgment, which the circuit court signed. A judgment for foreclosure was entered against Marshalls Point and a money judgment was entered against Musikantow as guarantor for $4,045,555.55, the amount of principal and interest remaining on the loan.

*67¶10 In addition, the stipulation provided that the Sister Bay property may be sold at a sheriff's sale. It further stated that:

[t]he amount paid to [Horizon Bank] from the proceeds of said sale of the Premises, remaining after deduction by [Horizon Bank] of the amount of interest, fees, costs, expenses, disbursements and other charges paid or incurred by [Horizon Bank] not included in the monetary judgment against [Musikantow] (set forth below) shall be credited by [Horizon Bank] as payment on said monetary judgment.

¶11 At the sheriff's sale, Horizon Bank bought the Sister Bay property for a credit bid of $2,250,000. The sole bid was from Horizon Bank.

¶12 Horizon Bank moved the circuit court to confirm the sale pursuant to Wis. Stat. § 846.165, arguing that the amount of its bid at the sheriff's sale constituted "fair *801value" of the Sister Bay property.4 In support of its determination of fair value, Horizon Bank submitted two expert witness affidavits.

¶13 Additionally, Horizon Bank indicated in its motion to confirm the sale that it would not seek a deficiency judgment against Marshalls Point.5 Finally, it requested that the circuit court apply the amount of *68the winning bid at the sheriff's sale as a credit toward the judgment against Musikantow, thereby reducing the amount of the money judgment by that amount.

¶14 In response to the motion to confirm the sale, Marshalls Point and Musikantow "recognize[d] that the court must find that the amount bid at sale represents fair value, even though the mortgagee did not seek a deficiency judgment against the mortgagor." They also conceded that "[f]air value is not the same as fair market value."

¶15 Thus, Marshalls Point and Musikantow did not object to the confirmation of sale at the price of Horizon Bank's winning bid at the sheriff's sale on the condition that certain language be added to the order confirming the sale. They sought language to protect Musikantow from being bound to the amount of the winning bid as the amount of the credit:

Notwithstanding anything in this order, the confirmation of the sale of the collateral to Horizon Bank, following a deficiency against the borrower, shall have no collateral estoppel or res judicata effect should Horizon Bank seek to recover against the guarantor, Allen S. Musikantow, on all or any part of the judgment against Allen S. Musikantow as guarantor of this obligation.

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Cite This Page — Counsel Stack

Bluebook (online)
2018 WI 19, 908 N.W.2d 797, 380 Wis. 2d 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horizon-bank-national-association-v-marshalls-point-retreat-llc-wis-2018.