Wells Fargo Bank, N.A. v. Biba

2010 WI App 140, 793 N.W.2d 95, 329 Wis. 2d 787, 2010 Wisc. App. LEXIS 742
CourtCourt of Appeals of Wisconsin
DecidedSeptember 16, 2010
DocketNo. 2009AP2273
StatusPublished
Cited by1 cases

This text of 2010 WI App 140 (Wells Fargo Bank, N.A. v. Biba) 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
Wells Fargo Bank, N.A. v. Biba, 2010 WI App 140, 793 N.W.2d 95, 329 Wis. 2d 787, 2010 Wisc. App. LEXIS 742 (Wis. Ct. App. 2010).

Opinion

LUNDSTEN, J.

¶ 1. This appeal involves a mortgage foreclosure action initiated by Wells Fargo Bank concerning a residential property owned by James Biba and Lisa Clason. Neither Biba nor Clason filed an answer, and the action proceeded to a foreclosure sale and confirmation of that sale. After the foreclosure sale was confirmed, Biba appeared for the first time and asked the circuit court to invalidate the confirmation. Biba argued then, and now on appeal, that there are statutory confirmation requirements — notice, a motion, and a hearing — that apply in all situations before a court may confirm a foreclosure sale. Biba contends that, because these requirements were not met here, the circuit court's order confirming the foreclosure sale is invalid. We disagree and affirm the circuit court.

Background

¶ 2. In December 2007, Wells Fargo filed a complaint seeking foreclosure of homestead property belonging to Biba and Clason after Biba and Clason had defaulted on a mortgage held by Wells Fargo. Both Biba and Clason were served, but neither filed an answer or otherwise appeared. The circuit court entered a default judgment of foreclosure and directed that the property be sold at public auction.

¶ 3. At auction, Wells Fargo was the winning bidder. The circuit court received a "sheriffs report of sale on foreclosure" indicating that this sale had occurred. An attorney for Wells Fargo submitted a letter [790]*790to the court, requesting that it sign an order confirming the sale. No party had appeared, and Wells Fargo did not give notice to any party.

¶ 4. In May 2009, without a hearing, the circuit court issued an order confirming the sale. About three weeks later, Biba moved the circuit court to vacate the confirmation order. The court denied the motion, and Biba appeals.

Discussion

¶ 5. Biba contends that Wis. Stat. § 846.165(1) (2007-08)1 contains three prerequisites to the confirmation of a foreclosure sale: notice, a motion for confirmation, and a confirmation hearing. He argues that these requirements always apply, regardless whether any party has appeared. We disagree.

¶ 6. The application of a statute to undisputed facts is a question of law that we review de novo. JP Morgan Chase Bank, NA v. Green, 2008 WI App 78, ¶ 11, 311 Wis. 2d 715, 753 N.W.2d 536. We apply the following principles:

When we construe a statute, we begin with the language of the statute. We interpret the language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes!.]" If we conclude the statutory language is plain, then we apply its plain meaning. If we conclude it is ambiguous — that is, capable of being understood by reasonably well-informed persons in two or more senses — then we must resolve the ambiguity.

Id., ¶ 24 (citations omitted).

[791]*791 A. Notice Of Confirmation

¶ 7. Biba concedes that, under Wis. Stat. § 846.165(1), neither he nor anyone else was entitled to personal service of notice. Biba nonetheless maintains that the statute requires some sort of notice, suggesting, for example, that Wells Fargo was required to post or publish a general notice of a confirmation hearing. We disagree.

¶ 8. Section 846.165(1) consists of two sentences. The first sentence states: "No sale on a judgment of mortgage foreclosure shall be confirmed unless 5 days' notice has been given to all parties that have appeared in the action." The second sentence refers back to the notice in the first sentence and divides this notice requirement into two possible scenarios: when an appearing party's post office address is known, the statute directs that notice "be given either personally or by registered mail"; when an appearing party's post office address is unknown, the statute directs that "mailing may be dispensed with but an affidavit shall be filed with the court stating that the address is not known." Id. The second sentence concludes with a description of what a notice must contain. Id.2

[792]*792¶ 9. It is clear that the notice referred to throughout section 846.165(1) is the notice of the first sentence, namely, the notice that must be "given to all parties that have appeared in the action" (emphasis added). Biba does not contend that any party "appeared" within the meaning of the statute and, consequently, he concedes that no party was entitled to personal notice.

¶ 10. Instead, Biba asserts that, when no party is entitled to personal notice, section 846.165(1) somehow requires a general posting or publication of notice. The only statutory notice requirement, however, is that notice must be given to a party that has appeared. The omission of any public notice requirement is telling because it stands in contrast to related statutes, such as Wis. Stat. § 846.10(2) that sets forth the general procedure for foreclosure sales and expressly provides for public notice. Similarly, Wis. Stat. § 846.101(2), the more specific foreclosure sale statute used by Wells Fargo here, also contains an express public notice requirement.

¶ 11. Accordingly, we reject Biba's notice argument.

B. Confirmation Hearing

¶ 12. Biba argues that Wis. Stat. § 846.165(1) requires a confirmation hearing, regardless whether the statute requires notice. He contends that a confir[793]*793mation hearing is always a statutory prerequisite to a valid confirmation. We are not persuaded.

¶ 13. Nothing in section 846.165(1) suggests that there is a general hearing requirement. Rather, the only possible hearing requirement is triggered by the need to give an appearing party notice. In that situation, the statute may indirectly require a hearing in that the statute assumes that a hearing will be held. The statute directs that "notice [to parties that have appeared] shall be . . . mailed at least 5 days prior to the date when the motion for confirmation is to be heard" and that "the notice shall state . . . the time and place of hearing." Wis. Stat. § 846.165(1) (emphasis added). If, as this statutory language directs, the notice must be mailed before a hearing and must contain the time and place of a hearing, then it may be that the legislature intended to require a hearing when an appearing party is entitled to notice.

¶ 14. Apart from this possible implicit hearing requirement when notice is required, a topic not at issue here, there simply is no general hearing requirement in the statute. Indeed, the only express statutory prerequisite to a valid confirmation is compliance with the notice requirement. See Wis. Stat.

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Bluebook (online)
2010 WI App 140, 793 N.W.2d 95, 329 Wis. 2d 787, 2010 Wisc. App. LEXIS 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-bank-na-v-biba-wisctapp-2010.