Wis. Stat. § 321.62 — WI Code / Chapter 321 / Section 321.62
Service members civil relief; state active duty.
Status: in_force

(1) Definitions. In this section:

(a) “Court” means a Wisconsin circuit court, a Wisconsin court of appeals, or the Wisconsin supreme court.

(b) “Period of state active duty” means the period beginning on the date on which the service member receives an order to enter state active duty and ending on the date of the service member’s release from state active duty or death while on state active duty.

(bm) “Public agency” means a county, city, village, town, public inland lake protection and rehabilitation district, lake sanitary district, or school district or an agency of this state or of a county, city, village, town, public inland lake protection and rehabilitation district, lake sanitary district, or school district.

(c) “Service member” means a member of the national guard or state defense force who is ordered into state active duty for 30 days or more.

(2) Protection of persons secondarily liable.

(a) If this section results in the stay or suspension of any obligation, liability, court action, order, writ, or judgment, the court that issued the stay or suspension may grant the same remedy to sureties, guarantors, endorsers, and others subject to the obligation, liability, court action, order, writ, or judgment.

(b) If a service member is the principal on a criminal bail bond and his or her state active duty causes the surety upon the bond to be prevented from enforcing the attendance of the service member at court, the court shall not enforce the provisions of the bond during the service member’s period of state active duty and may either during or after the period of state active duty discharge the surety and exonerate the bail.

(c) A surety, guarantor, endorser, or other person subject to the obligation, liability, court action, order, writ, or judgment under par. (a) or (b) may waive in writing the rights afforded by this subsection, except that the waiver is not valid unless the waiver is executed as an instrument separate from the obligation, liability, court action, order, writ, or judgment. The waiver under this paragraph is not valid after the beginning of the period of state active duty if executed by a service member who subsequently is ordered into state active duty. The waiver under this paragraph is not valid if executed by a dependent of a service member unless the waiver is executed during the period of state active duty.

(3) Effect on rights under a written agreement. This section does not prevent the modification, termination, or cancellation of any contract, lease, bailment, or secured obligation, or the repossession, retention, foreclosure, sale, or forfeiture of property that is security for any obligation or which has been purchased or received under a contract, lease, or bailment under a written agreement of the parties if that agreement is executed during or after the period of state active duty.

(4) Exercise of rights. No person may use the fact that a service member has applied for, or received, a stay, postponement, or suspension in the payment of a tax, fine, penalty, insurance premium, or other civil obligation or liability as the basis for doing any of the following:

(a) If the person is a lender, determining that the service member is unable to pay any such civil obligation or liability in accordance with the terms of the obligation or liability.

(b) If the person is a creditor, denying or revoking any credit extended to the service member, changing the terms of a credit agreement to which the service member is a party, or refusing to grant credit to the service member in substantially the amount or on substantially the terms requested by the service member.

(c) If the person is in the business of assembling or evaluating consumer credit information, making an adverse report on the creditworthiness of the service member.

(d) If the person is an insurer, refusing to insure the service member.

(5) Default judgments, affidavits, and attorney representation.

(a) If, in any court action, there is a default of any appearance of the defendant, the plaintiff, when requesting a default judgment, shall file with the court an affidavit setting forth facts showing that the defendant is not in state active duty. If the plaintiff is unable to file such an affidavit, the plaintiff shall, when requesting a default judgment, file an affidavit setting forth that the defendant is in state active duty or that the plaintiff is unable to determine if the defendant is in state active duty. If an affidavit is not filed showing that the defendant is not in state active duty, a default judgment may not be entered without a court order. A court may not order the entry of a default judgment if the defendant is in state active duty until the court has appointed an attorney to represent the defendant and protect the defendant’s interests. Unless the court determines that the defendant is not in state active duty, the court may require, as a condition of entering judgment, the plaintiff to file a bond to indemnify the defendant, if he or she is in state active duty, against any loss or damage resulting from the judgment if any part of the judgment is later set aside. The court may make any other order as may be necessary to protect the interests of the defendant under this section.

(b) If a judgment is rendered in a court action against a service member during the period of state active duty or within 30 days after the end of that period of state active duty, and it appears that the service member was prejudiced in making a defense by reason of his or her state active duty, the court may reopen that judgment if all of the following conditions exist:

1. The service member moves the court to reopen the judgment within 90 days after his or her period of state active duty ends.

2. The service member has a meritorious or legal defense to the action.

(c) Vacating, setting aside, or reversing a judgment under this subsection does not impair any right or title acquired by a bona fide purchaser for value under the judgment.

(d) Any person who shall make or use an affidavit required under this subsection that he or she knows to be false shall be fined not more than $10,000 or imprisoned for not more than 9 months or both.

(6) Stay of action. During any stage of a court action in which a service member in state active duty is involved as a party, or within 60 days after the end of the period of state active duty, the court in which the action is pending may on its own motion, and shall, on application of the service member or some person acting on behalf of the service member, stay the action unless the court determines that the service member’s ability to represent his or her interest in the action is not materially affected by reason of his or her state active duty.

(7) Stay or vacation of executions or attachments. In any court action that is commenced against a service member before or after entering state active duty, or within 60 days after the period of state active duty ends, the court may on its own motion, and shall, on application of the service member or some person acting on behalf of the service member, stay the execution of any judgment or order entered against the service member, or stay or vacate any attachment or garnishment regarding the service member’s property, unless the court determines that the service member’s ability to comply with the judgment or order is not materially affected by reason of his or her state active duty.

(8) Duration and terms of stays.

(a) Any stay of any action, attachment, execution, or garnishment under this section may be ordered for the period of the state active duty and 90 days after that period has ended, or for any part of that time.

(b) Any stay under par. (a) may be subject to such terms as may be just, including the payment of installments in an amount and at the times that the court determines.

(c) If the service member is a codefendant in an action, the plaintiff may, by leave of the court, proceed against the other codefendants.

(9) Statutes of limitations. The period of state active duty may not be included in computing any period for the bringing of any action or proceeding in any court or before any public agency by or against a person in state active duty or by or against his or her heirs, personal representatives, or assigns, whether the cause of action or proceeding or the right to bring the action or proceeding accrued before or during the period of state active duty.

(10) Maximum interest rate. No obligation or liability bearing interest at a rate in excess of 6 percent per year incurred by a service member in state active duty before his or her entry into that duty may, during any part of the period of state active duty, bear interest in excess of 6 percent per year except by court order. If, upon application by an obligee, a court determines that the ability of the service member to pay interest upon the obligation or liability at a rate in excess of 6 percent per year is not materially affected by reason of his or her state active duty, the court may make any order that is just. In this subsection, “interest” includes service charges, renewal charges, fees, or other charges, other than insurance, in respect to the obligation or liability.

(11) Eviction stay.

(a) No eviction may be made during the period of state active duty in respect to any premises for which the agreed rent does not exceed the amount specified in 50 USC App. 531, occupied chiefly for dwelling purposes by the spouse, children, domestic partner under ch. 770 , or other dependents of a service member who is in state active duty, except upon order of a court in an action affecting the right of possession.

(b) In an action for eviction under par. (a) , the court may on its own motion, and shall, on application of the service member or some person acting on behalf of the service member, stay the proceedings for not longer than 90 days unless the court determines that the ability of the tenant to pay the agreed rent is not materially affected by the state active duty. The court may make any other order in the eviction action as it considers necessary and just. If a stay or order is issued under this paragraph, the court may, upon the request of the owner of the premises, make any other order as may be applicable to conserve the interests of all of the parties.

(c) Any person who knowingly takes part in any eviction prohibited under par. (a) except as provided in this subsection, or attempts to do so, shall be fined not more than $10,000 or imprisoned not more than 9 months or both.

(12) Action to enforce obligation secured by mortgage.

(a) In this subsection, “obligation” means an obligation of a service member in state active duty that was incurred before the service member’s period of state active duty began and that is secured by a mortgage, deed of trust, or other security in the nature of a mortgage on real or personal property that is owned by the service member.

(b) If a court action against a service member is commenced during the service member’s period of state active duty to enforce an obligation for nonpayment of any sum due or for any other breach of terms occurring before or during the service member’s period of state active duty, the court shall hold a hearing on the matter. Unless the court determines that the service member’s ability to comply with the terms of the obligation is not materially affected by reason of his or her state active duty, the court on its own motion may, or upon application of the service member or another person on his or her behalf shall, do any of the following:

1. Stay the action as provided in this section.

2. Make such other disposition of the case as the court determines is equitable to the interests of all parties.

(c)

1. Notwithstanding the times provided in ss. 846.10 , 846.101 , 846.102 , and 846.103 for sales of real property, no foreclosure, sale, or seizure of property for nonpayment of any sum due or for any other breach of terms is valid if it occurs during or within 90 days after the service member’s period of state active duty, unless the court ordered the foreclosure, sale, or seizure of property before the beginning of the service member’s period of state active duty and approves the foreclosure, sale, or seizure after it occurs.

2. Any person who knowingly causes a foreclosure, sale, or seizure of property that is invalid under subd. 1. shall be fined not more than $10,000 or imprisoned for not more than 9 months or both.

(13) Personal property contracts. When an action to resume possession of personal property, or to rescind or terminate a contract for the purchase of personal property, has been stayed under this section, the court may appoint 3 disinterested persons to appraise the property. Based upon the report of the appraisers, and unless undue hardship would result to the dependents of the service member in state active duty, the court may order that a sum be paid to the service member as a condition of resuming possession of the property or rescinding or terminating the contract.

(14) Termination of leases by lessees.

(a) This subsection applies to a lease to which all of the following apply:

1. The lease was executed by or on behalf of a service member who entered state active duty after the lease was executed.

2. The lease covers premises that are occupied for dwelling, professional, business, agricultural, or similar purposes by the service member, or the service member and his or her dependents.

(b) A lease to which this subsection applies may be terminated by the service member at any time after the beginning of the service member’s period of state active duty by giving notice in writing by personal delivery or first class mail to the landlord or the person who has been receiving rent or managing the property as the landlord’s agent.

(c) If the lease provides for monthly payment of rent, termination shall be effective 30 days after the first date on which the next rental payment is due and payable after the date on which the notice is delivered or mailed. In any other case, all of the following apply:

1. Termination shall be effective on the last day of the month after the month in which the notice was delivered or mailed.

2. Any unpaid rent for the period preceding termination shall be computed on a prorated basis.

3. The landlord or the landlord’s agent shall refund to the service member any rent paid in advance that applies to the period after termination.

(d) Upon application of a landlord after receiving notice under this subsection and before the lease termination date provided for in this subsection, a court may make such modifications to or restrictions on the relief granted in this subsection as the court determines are appropriate under the circumstances.

(e) No person may knowingly seize or retain personal property belonging to a service member who lawfully terminates a lease under this subsection, or in any manner interfere with the removal of the service member’s personal property from the premises covered by the lease, for the purpose of subjecting the personal property to a claim for rent accruing after the termination of the lease. Any person who violates this paragraph shall be fined not more than $10,000 or imprisoned for not more than 9 months or both.

(f) Section 704.29 does not apply to the termination of a lease as provided in this subsection.

(15) Storage liens.

(a) Notwithstanding s. 704.90 , no person may enforce a lien for storage of any household goods, furniture, or personal effects of a service member during the period in which the service member is in state active duty and for 90 days after the member’s completion of state active duty, except as permitted by a court order under par. (b) .

(b) No person may exercise any right to foreclose or enforce a lien for the storage of household goods, furniture, or personal effects of a service member during the service member’s period of state active duty and for 90 days after that period ends except upon an order of the court. In an action under this paragraph, the court, after a hearing, may on its own motion, and shall, on application of the service member or some person acting on behalf of the service member, stay the proceeding or make such other order as may be equitable to conserve the interests of all parties, unless the court determines that the ability of the service member to pay storage charges due is not materially affected by his or her state active duty.

(c) Any person who violates par. (a) may be fined not more than $10,000 or imprisoned for not more than 9 months or both.