Nelson v. Union National Bank
This text of 330 N.W.2d 225 (Nelson v. Union National Bank) 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.
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Melvin D. Nelson appeals from a judgment awarding him only a portion of the penalties he sought from the Union National Bank and its employee, Keith R. Olson, for the bank’s claimed violation of sec. 425.206 (1), Stats.1 The bank cross-appeals for dismissal of Nelson’s complaint. Because we conclude that the bank did not violate sec. 425.206(1), we reverse the judgment and remand this matter to the trial court with directions to dismiss Nelson’s complaint.2
[315]*315Section 425.206(1) restricts a bank’s3 right to take possession of collateral securing its loans and penalizes a bank’s violation of the statute.4 The interpretation of sec. 425.206(1) is a question of law. See Central National Bank v. Dustin, 107 Wis. 2d 614, 617, 321 N.W.2d 321, 322 (Ct. App. 1982). An appellate court must independently decide a question of law without deference to the trial court’s conclusion. First National Leasing Corp. v. City of Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251, 253 (1977). Since a violation of sec. 425.206(1) results in exemplary damages, we will not extend the application of the statute by implication. See Rische Construction Co. v. May, 15 Wis. 2d 123, 127, 112 N.W.2d 165, 168 (1961).
The parties do not dispute the relevant facts. Nelson pledged his truck and assigned his life insurance policy to the bank as security for a loan. The assignment required the bank to notify Nelson before it surrendered his policy to the insurance company for its cash value. When Nelson failed to make his required loan payments, the bank cashed the policy without notifying Nelson. Nelson’s truck was subsequently stolen, and his insurer sent him a check for the truck’s value. When Nelson turned this check over to the bank, he asked the bank to return his life insurance policy. The bank then told him that it had cashed his policy.
The bank did not violate sec. 425.206(1) by cashing Nelson’s life insurance policy. The statute prohibits an [316]*316improper taking. The bank’s cashing of Nelson’s policy was not a taking, it was a conversion. See Wheeler v. Pereles, 43 Wis. 332, 336 (1877). If the legislature had wanted to penalize an improper conversion as well as an improper taking, it could have expressed this intent.
Additionally, there is no reason to expansively interpret sec. 425.206(1) to include a creditor’s conversion of collateral. The purpose of sec. 425.206(1) is to prohibit self-help repossession. See Barrett and Jones, Wisconsin Consumer Act—A Freak Out?, 57 Marq. L. Rev. 483, 500 (1974) ; Heiser, Wisconsin Consumer Act — A Critical Analysis, 57 Marq. L. Rev. 389, 460 (1974); Whitford and Laufer, The Impact of Denying Self-Help Repossession of Automobiles: A Case Study of The Wisconsin Consumer Act, 1975 Wis. L. Rev. 607, 612. Conversion of possessed property does not involve any of the perceived evils associated with self-help repossession.5
The bank also did not violate sec. 425.206(1) when it accepted Nelson’s truck insurance check. By Nelson’s agreement with the bank, the bank was entitled to the check. The check was not collateral within the meaning of the Consumer Act. See secs. 425.202, 421.301(21), 409.105(1) (h) and (i), Stats. Its acceptance was not a prohibited self-help repossession of collateral.
By the Court. — Judgment reversed and cause remanded with directions.
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Cite This Page — Counsel Stack
330 N.W.2d 225, 111 Wis. 2d 313, 1983 Wisc. App. LEXIS 3209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-union-national-bank-wisctapp-1983.