2022 WI 1

SUPREME COURT OF WISCONSIN

CASE NO.: 2019AP1365

COMPLETE TITLE: Danelle Duncan,

 Plaintiff-Appellant,

 v.

Asset Recovery Specialists, Inc., Greg Strandlie 

and Wells Fargo Bank, N.A.,

 Defendants-Respondents-Petitioners.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 393 Wis. 2d 814,948 N.W.2d 419

PDC No:2020 WI App 54 - Published

OPINION FILED: January 6, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 15, 2021 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dane 

JUDGE: Stephen E. Ehlke 

JUSTICES:

DALLET, J., delivered the majority opinion of the Court with 

respect to all parts except ¶¶29, 31-34, in which ANN WALSH 

BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined, and an opinion 

with respect to ¶¶29, 31-34, in which ANN WALSH BRADLEY and 

HAGEDORN, JJ., joined. KAROFSKY, J., filed a concurring 

opinion. ROGGENSACK, J., filed a dissenting opinion in which 

ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendants-respondents-petitioners, there were 

briefs filed by William W. Ehrke, Micaela Haggenjos, and 

Crivello Carlson S.C., Milwaukee. There was an oral argument by 

William W. Ehrke.

For the plaintiff-appellant, there was a brief filed by 

Briane F. Pagel and Lawton & Cates, S.C., Madison. There was an 

oral argument by Briane F. Pagel.
2

An amicus curiae brief was filed on behalf of Wisconsin 

Bankers Association by James E. Bartzen and Boardman & Clark 

LLP, Madison.

An amicus curiae brief was filed on behalf of The Wisconsin 

Credit Union League and American Financial Services Association 

by Lisa M. Lawless and Husch Blackwell LLP, Milwaukee; and Marci 

V. Kawski, Lauren C. Capitini and Husch Blackwell LLP, Madison.
2022 WI 1

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2019AP1365

(L.C. No. 2017cv1704)

STATE OF WISCONSIN : IN SUPREME COURT

Danelle Duncan,

 Plaintiff-Appellant,

 v.

Asset Recovery Specialists, Inc., Greg 

Strandlie and Wells Fargo Bank, N.A.,

 Defendants-Respondents-Petitioners.

FILED

JAN 6, 2022

Sheila T. Reiff

Clerk of Supreme Court

DALLET, J., delivered the majority opinion of the Court with 

respect to all parts except ¶¶29, 31-34, in which ANN WALSH 

BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined, and an opinion 

with respect to ¶¶29, 31-34, in which ANN WALSH BRADLEY and 

HAGEDORN, JJ., joined. KAROFSKY, J., filed a concurring 

opinion. ROGGENSACK, J., filed a dissenting opinion in which 

ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Modified and 

affirmed and, as modified, cause remanded. 

¶1 REBECCA FRANK DALLET, J. Danelle Duncan left her car 

in her parking spot in the garage on the ground floor of her 

apartment building. When she returned a short time later, the 

car was gone. She later learned that Defendants——Asset Recovery 

Specialists, Inc.; Wells Fargo Bank, N.A.; and Greg Strandlie——
No. 2019AP1365 

2

had entered the garage without her consent and repossessed the 

car. 

¶2 Duncan alleges that Defendants violated the Wisconsin 

Consumer Act by "[e]ntering a dwelling used by the customer as a 

residence except at the voluntary request of a customer" during 

the repossession. See Wis. Stat. § 425.206(2)(b) (2017-18).1 We 

agree and hold that "dwelling used by the customer as a 

residence" in § 425.206(2)(b) includes a garage attached to the 

residential building in which the customer lives. In her 

complaint, Duncan also alleged that Defendants' conduct during 

and after the repossession was unconscionable in violation of 

Wis. Stat. § 425.107. We hold that claims of unconscionability 

under § 425.107 are available only in "actions or other 

proceedings brought by a creditor to enforce rights arising from 

consumer credit transactions," see Wis. Stat. § 425.102, and 

that a non-judicial repossession under § 425.206(1)(d), like the 

one Defendants performed in this case, is not such an action or 

other proceeding. As a result, Duncan's unconscionability claim 

must be dismissed. We therefore affirm the decision of the 

court of appeals, as modified by our conclusion on 

unconscionability, and remand to the circuit court for further 

proceedings. 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
No. 2019AP1365 

3

I

¶3 Duncan bought her car from a dealership and financed 

the purchase with a loan. The loan, which created a security 

interest in the car, was later assigned to Wells Fargo Bank. 

After Duncan defaulted on the loan, the Wisconsin Consumer Act 

(Wis. Stat. chs. 421-427) provided the bank with two ways to 

take possession of the car. It could either obtain a judgment 

for return of the car by filing a replevin action under Wis. 

Stat. § 425.205 or follow the statutory process for a nonjudicial repossession under Wis. Stat. §§ 425.205(1g)(a) 

and 425.206(1)(d). Wells Fargo pursued the latter option,2 and 

hired Asset Recovery Specialists, owned by Greg Strandlie, to 

repossess Duncan's car. 

¶4 At that time, Duncan lived in a multi-story, multiunit apartment building. The ground floor of the building is 

made up entirely of parking for residents and includes at least 

56 parking spaces. Duncan leased a parking space in the garage 

under an agreement separate from her apartment lease. To access 

the residential floors and apartments from the garage, or to 

 

2 It is undisputed that Wells Fargo met the statutory 

requirements to proceed with a non-judicial repossession under 

Wis. Stat. § 425.206(1)(d). Specifically, Wells Fargo provided 

notice to Duncan, pursuant to Wis. Stat. § 425.205(1g)(a), 

including notice of Duncan's right to demand that Wells Fargo 

proceed by filing a replevin action. See § 425.205(1g)(a)3. 

Had Duncan made such a demand, § 425.206(1)(d) would have barred 

Wells Fargo from repossessing the car without first obtaining 

judgment in a replevin action brought under § 425.205. The 

parties agree that Duncan made no such demand, and therefore no 

replevin action was required. 
No. 2019AP1365 

4

enter the garage on foot from the outside, residents must use 

keys. To drive into the garage, residents must use a garage 

door opener.3 

¶5 When Strandlie and one of his employees arrived to 

repossess Duncan's car, however, they found the garage door 

open. They went in, located Duncan's car, and towed it away. 

Neither Strandlie nor the employee interacted with Duncan at the 

time. A maintenance worker was in the garage at the time of the 

repossession and did not object. 

¶6 Duncan filed this case in circuit court4 alleging, 

among other things, that Defendants violated Wis. Stat. 

§ 425.206(2)(b) when they entered the parking garage to 

repossess her car and that Defendants' conduct during and after 

the repossession was unconscionable in violation of Wis. Stat. 

§ 425.107(1).5 

 

3 As the court of appeals noted, the parties dispute other 

facts about the garage, including whether signs were posted 

restricting entry. See Duncan v. Asset Recovery Specialists, 

Inc., 2020 WI App 54, ¶5 n.3, 393 Wis. 2d 814, 948 N.W.2d 419. 

Like the court of appeals, we conclude that these factual 

disputes are immaterial to our interpretation and application of 

Wis. Stat. § 425.206(2)(b). See id. 

4 The Honorable Stephen E. Ehlke of the Dane County Circuit 

Court presided.

5 Duncan initially brought these claims in an action in 

federal court alongside other claims under state and federal 

law. See Duncan v. Asset Recovery Specialists, Inc., No. 16-cv530-WMC, 2017 WL 2870520 (W.D. Wis. July 5, 2017), aff'd 907 

F.3d 1016 (7th Cir. 2018). The federal court dismissed the 

claims at issue in this case without prejudice. See id. at *6-

7. 
No. 2019AP1365 

5

¶7 The circuit court granted summary judgment to 

Defendants on all claims, concluding that entering the garage to 

repossess the car did not violate Wis. Stat. § 425.206(2)(b) and 

that Duncan's unconscionability claim failed as a result. The 

circuit court reasoned that § 425.206(2)(b) did not apply 

because Duncan had no right to exclude all others from the 

garage and that the garage "offers no use that is primarily or 

intimately tied to the use of her apartment, for example, 

sleeping, eating or conducting her private life." 

¶8 The court of appeals reversed. Duncan v. Asset 

Recovery Specialists, Inc., 2020 WI App 54, 393 Wis. 2d 814, 948 

N.W.2d 419. The court of appeals reasoned that "dwelling used 

by [Duncan] as a residence" included the parking garage, relying 

on the language of Wis. Stat. § 425.206(2)(b); another part of 

the Wisconsin Consumer Act, Wis. Stat. § 422.419(1)(a); and an 

administrative rule interpreting § 422.419(1)(a), Wis. Admin. 

Code § DFI-WCA 1.392 (July 2007)6. See Duncan, 393 Wis. 2d 814, 

¶2. Based on its reading of those provisions, the court of 

appeals also rejected any interpretation of the phrase "dwelling 

used by the customer as a residence" that "turns on 

considerations of ownership or the right to exclude" or the 

would-be repossessors' subjective evaluation of whether a 

particular location showed some "indicia of residential use." 

Id., ¶¶33-35 (internal quotation marks omitted). Because the 

 

6 All subsequent references to the Wis. Admin. Code ch. DFIWCA 1 are to the July 2007 register date unless otherwise 

indicated.
No. 2019AP1365 

6

circuit court dismissed the unconscionability claim on the same 

grounds as the repossession claim, the court of appeals remanded 

to give the parties and the circuit court the opportunity to 

address in the first instance whether the unconscionability 

claim should be dismissed for other reasons.

II

¶9 At issue in this case is the interpretation and 

application of Wis. Stat. §§ 425.206(2)(b) and 425.107(1). 

Statutory interpretation is a question of law that we review de 

novo. See, e.g., Clean Wis., Inc. v. DNR, 2021 WI 72, ¶10, 398 

Wis. 2d 433, 961 N.W.2d 611. "When interpreting statutes, we 

start with the text, and if its meaning is plain on its face, we 

stop there." Id. We also consider the broader statutory 

context, interpreting language consistently with how it is used 

in closely related statutes. Id. Our analysis is further 

informed by the legislature's explicit statements of legislative 

purpose and those reflected in a statute's context and 

structure. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 

2004 WI 58, ¶49, 271 Wis. 2d 633, 681 N.W.2d 110.

III

¶10 We begin with Duncan's claim that Defendants violated 

Wis. Stat. § 425.206(2)(b) by entering the parking garage of her 

apartment building to repossess her car. Section 425.206(2) 

states as follows: 

In taking possession of collateral or leased goods, no 

merchant may do any of the following: 

(a) Commit a breach of the peace. 
No. 2019AP1365 

7

(b) Enter a dwelling used by the customer as a 

residence except at the voluntary request of a 

customer.

It is undisputed that Defendants are "merchant[s]," that Duncan 

is "the customer," and that Duncan made no "voluntary request" 

for Defendants to enter the garage. See id.; Wis. 

Stat. § 421.301(17), (25). To determine whether the 

repossession was proper, we must therefore answer a single 

question: Did Defendants enter "a dwelling used by [Duncan] as 

a residence" when they repossessed her car from the first-floor 

parking garage of her apartment building? In answering that 

question, we first determine the meaning of "dwelling" as it is 

used in § 425.206(2)(b) before analyzing the phrase that 

modifies it, "used by the customer as a residence." 

A

¶11 Although "dwelling" is undefined in the Wisconsin 

Consumer Act, it is a common word and the parties generally 

agree on its ordinary, dictionary definition. "Dwelling" 

typically refers to "a building or other shelter in which people 

live." See, e.g., Webster's Seventh New Collegiate Dictionary

259 (16th ed. 1967); American Heritage Dictionary 406 (6th ed. 

1976) (defining "dwelling" as "[a] place to live in; residence; 
No. 2019AP1365 

8

abode").7 In other words, a dwelling is a building in which at 

least one person lives. 

¶12 That definition is consistent with the use of 

"dwelling" elsewhere in the statutes at the time the Wisconsin 

Consumer Act was adopted in 1971. See Spielmann v. Indus. 

Comm'n, 236 Wis. 240, 250, 295 N.W. 1 (1940) (explaining that 

statutory terms should be interpreted consistently with the 

"definition contained in the statutes in force at the time the 

act was passed"). For example, Wis. Stat. § 990.01(13)(a) 

(1971-72) defined "homestead" to mean "the dwelling and so much 

of the land surrounding it as is reasonably necessary for use of 

the dwelling as a home, but not less than one-fourth acre (if 

available) and not exceeding 40 acres." Id. Similarly, Wis. 

Stat. § 852.09(2) (1971-72) defined "home" as "any dwelling in 

the estate of the decedent which at the time of his death the 

 

7 Black's Law Dictionary contains similar definitions. At 

the time the Wisconsin Consumer Act was adopted, Black's defined 

"dwelling house" as "[t]he house in which a man lives with his 

family; a residence; abode; habitation; the apartment or 

building or group of buildings, occupied by a family as a place 

of residence." Dwelling House, Black's Law Dictionary 596 (4th 

rev. ed. 1968). The subsequent edition of Black's included a 

very similar definition of "dwelling," which is nearly identical 

to the current edition's definition: "The house or other 

structure in which a person or persons live; a residence; abode; 

habitation; the apartment or building, or group of buildings, 

occupied by a family as a place of residence. Structure used as 

place of habitation." Dwelling, Black's Law Dictionary 454 (5th 

ed. 1979); see also Dwelling House, Black's Law Dictionary 641 

(11th ed. 2019). These definitions accord with the ordinary 

dictionary definition of "dwelling" and reinforce our ultimate 

conclusion that "dwelling" in Wis. Stat. § 425.206(2)(b) refers 

to a building in which at least one person lives. 
No. 2019AP1365 

9

surviving spouse occupies or intends to occupy." Id. 

Section 852.09(2) further explained that this language included 

"a house, a mobile home, a duplex or multiple apartment building 

one unit of which is occupied by the surviving spouse, or a 

building used in part for a dwelling and in part for commercial 

or business purposes." Id. Thus, at the time the Wisconsin 

Consumer Act was adopted, "dwelling" meant, at a minimum, a 

building in which at least one person lived. The term referred 

to the entire building, not just the parts of the building in 

which the residents might eat, sleep, or shower. 

¶13 Aside from Wis. Stat. § 425.206(2)(b), the Wisconsin 

Consumer Act uses "dwelling" twice, both times in ways 

consistent with the ordinary understanding of the word and its 

usage elsewhere in the statutes. See Clean Wis., 398 

Wis. 2d 433, ¶10 (noting that we interpret statutory language 

"consistent with how it is used in closely related statutes"). 

"Dwelling" appears first in Wis. Stat. § 422.409(2), which 

imposes requirements on certain payment-assignment notices. See

id. (requiring that such notices include the total of payments 

"except in the case of a transaction secured by a first lien 

mortgage or equivalent security interest for the purpose of the 

acquisition of a dwelling"). It is clear from the language of 

§ 422.409(2)——particularly its reference to a "mortgage or 

equivalent security interest"——that "dwelling" refers to a 

building in which at least one person lives and not just certain 

rooms within a building. 
No. 2019AP1365 

10

¶14 The second time "dwelling" appears in the Act is in 

Wis. Stat. § 422.419(1)(a), which prohibits consumer credit 

contracts from allowing "[t]he merchant or other person acting 

on the merchant's behalf . . . to enter the customer's dwelling 

or to commit any breach of the peace in the course of taking 

possession of collateral securing the transaction." This 

statute is the subject of an administrative rule adopted shortly 

after the Act took effect. See 210 Wis. Admin. Reg. 72 (June 1, 

1973); see also Wis. Stat. § 426.104(1)(e) (authorizing the 

Department of Financial Institutions' administrator to 

"adopt . . . rules to carry out the policies of chs. 421 to 427 

and 429"). That rule, Wis. Admin. Code § DFI-WCA 1.392, 

specifies that, for purposes of § 422.419(1)(a), "dwelling" 

includes "any garage, shed, barn or other building on the 

premises whether attached or unattached." 

¶15 In light of the relationship between Wis. 

Stat. §§ 425.206(2) and 422.419(1)(a), the Department's rule 

reinforces our reading of "dwelling" in § 425.206(2)(b). As 

discussed above, § 425.206(2) prohibits merchants from breaching 

the peace or entering a dwelling used by the customer as a 

residence during a repossession. And § 422.419(1)(a) prohibits 

merchants from contracting around that prohibition. As the 

court of appeals put it in this case, these statutes "appear to 

be two sides of the same coin." Duncan, 393 Wis. 2d 814, ¶28. 

Because "dwelling" in § 422.419(1)(a) includes any garage on the 

premises, see Wis. Admin. Code § DFI-WCA 1.392, Defendants could 

not have contracted for the right to repossess Duncan's car from 
No. 2019AP1365 

11

her apartment building's parking garage. We see no reason why 

"dwelling" in § 425.206(2)(b) should exclude that same garage, 

especially since both statutes prevent merchants from entering a 

dwelling to repossess property. 

¶16 To be clear, we do not adopt the administrative 

definition of "dwelling" as the statutory definition under Wis. 

Stat. § 425.206(2)(b). Rather, we rely on the administrative 

definition only as further support for our conclusion that 

"dwelling" in § 425.206(2)(b) means, at a minimum, a building in 

which at least one person lives. Based on that definition, 

Duncan's "dwelling" includes the parking garage, because it is 

located in the building in which she lives. The remaining 

question then is whether the phrase "used by the customer as a 

residence" nevertheless excludes the garage.

B

¶17 Despite the parties' general agreement on the common 

meaning of "dwelling," they offer competing readings of the 

phrase "used by the customer as a residence." Defendants assert 

that a "residence" is the place where a person "actually lives." 

They conclude that "used by the customer as a residence" limits 

"dwelling" to only the parts of the building that are also

"integral parts" of a residence; for example, the areas in which 

a person might sleep, eat, cook, or shower. Because Duncan did 

not sleep, eat, cook, or shower in the garage, Defendants claim 

that they could lawfully enter the garage because it was not 

used by Duncan as a residence. In contrast, Duncan suggests 

that "used by the customer as a residence" simply distinguishes 
No. 2019AP1365 

12

her particular dwelling from all other dwellings. She therefore 

acknowledges that Defendants would not have violated Wis. Stat. 

§ 425.206(2)(b) if they had repossessed her car from the parking 

garage of a different apartment building, or while it was parked 

in a friend's open garage. 

¶18 We agree with Duncan's interpretation and conclude 

that "used by the customer as a residence" distinguishes the 

customer's dwelling from all other dwellings. To begin with, 

this is the more natural reading of the language of Wis. Stat. 

§ 425.206(2)(b). As we have already explained, "dwelling" 

generally refers to an entire building in which people live. 

The modifier "used by the customer as a residence" is best 

understood as imposing a limitation on which dwelling 

§ 425.206(2)(b) protects——the dwelling this customer uses as a 

residence——not what parts of the dwelling it protects. Nothing 

in the language "dwelling used by the customer as a residence" 

suggests that the protections in § 425.206(2)(b) are limited to 

only the "integral parts" of a residence or the areas with 

"indicia of residential use." Indeed, the best evidence against 

those interpretations is that neither phrase appears in the 

statute. 

¶19 Additionally, reading "used by the customer as a 

residence" as distinguishing the customer's dwelling from all 

other dwellings provides simple, clear guidance to parties to 

consumer credit transactions. This interpretation makes clear 

to merchants that "dwelling used by the customer as a residence" 

refers to the customer's entire dwelling, the full structure in 
No. 2019AP1365 

13

which she lives. In this respect, our interpretation of Wis. 

Stat. § 425.206(2)(b) furthers one of the legislatively 

expressed purposes of the Wisconsin Consumer Act,8 namely 

"simplify[ing], clarify[ing], and moderniz[ing] the law 

governing consumer transactions." See Wis. Stat. 

§ 421.102(2)(a); see also § 421.102(1) (directing courts to 

"liberally construe[] and appl[y]" the Wisconsin Consumer Act in 

furtherance of its expressed purposes and policies); Kalal, 271 

Wis. 2d 633, ¶49 (explaining that when the legislature states 

the purposes of a statute, we interpret the statute in light of 

those purposes). 

¶20 In contrast, Defendants' reading of "used by the 

customer as a residence" is unworkable. See Kalal, 271 

Wis. 2d 633, ¶46 (explaining that we should read statutes to 

avoid "unreasonable results"). Defendants' proposed 

interpretation of Wis. Stat. § 425.206(2)(b) requires merchants 

to perform a case-by-case analysis of how the customer uses 

certain parts of her dwelling to decide whether a repossession 

is permitted. But Defendants offer no principled way to decide 

when "indicia of residential use" or "residential activities" 

 

8 There are four legislatively expressed purposes of the 

Wisconsin Consumer Act: (1) "[t]o simplify, clarify, and 

modernize the law governing consumer transactions"; (2) "[t]o 

protect consumers against unfair, deceptive, false, misleading 

and unconscionable practices by merchants"; (3) "[t]o permit and 

encourage the development of fair and economically sound 

consumer practices in consumer transactions"; and (4) "[t]o 

coordinate the regulation of consumer credit transactions with 

the policies of the federal consumer credit protection act." 

Wis. Stat. § 421.102(2)(a)-(d).
No. 2019AP1365 

14

are prevalent or frequent enough such that a particular part of 

a dwelling is "used by the customer as a residence." Even more 

to the point, Defendants fail to explain how a would-be 

repossessor would know, without entering the building first, 

whether a customer sometimes sleeps, eats, cooks, or showers in 

a particular part of her dwelling. 

¶21 Like the court of appeals, we also reject any 

definition of "dwelling used by the customer as a residence" 

that depends on whether the customer has the right to exclude 

others from a particular area or whether the customer has a 

reasonable expectation of privacy in a particular area under the 

Fourth Amendment.9 For one thing, there is no basis in the text 

of Wis. Stat. § 425.206(2)(b) for either notion. The statute's 

protections apply to a building——the "dwelling"——that the 

customer uses in a particular way——"as a residence." Its 

protections turn on neither who owns the building nor what level 

of privacy a resident might reasonably expect. Additionally, 

the Wisconsin Consumer Act reflects a balance the legislature 

struck between customers' and merchants' interests in certain 

transactions. That courts have struck a different balance 

between citizens and law enforcement in the Fourth Amendment 

context says nothing about how we should interpret 

§ 425.206(2)(b). 

 

9 See, e.g., State v. Dumstrey, 2016 WI 3, ¶51, 366 

Wis. 2d 64, 873 N.W.2d 502 (concluding that a parking garage 

under the defendant's apartment building was not curtilage and 

that the defendant lacked a reasonable expectation of privacy 

there).
No. 2019AP1365 

15

¶22 Similarly, it is irrelevant whether Defendants 

breached the peace by entering Duncan's garage. The text and 

structure of Wis. Stat. § 425.206(2)(b) make clear that 

"[e]nter[ing] a dwelling used by the customer as a residence" is 

not synonymous with breaching the peace. Section 425.206(2)(a) 

codifies the rule in the Uniform Commercial Code prohibiting 

repossessions in breach of the peace. See Wis. Stat. 

§ 409.609(2)(b); see also Hollibush v. Ford Motor Credit Co., 

179 Wis. 2d 799, 806, 508 N.W.2d 449 (Ct. App. 1993) (concluding 

that "breach of the peace" in § 425.206(2)(a) has the same 

meaning as in the Uniform Commercial Code). And § 425.206(2)(b) 

separately prohibits merchants from repossessing collateral by 

either breaching the peace or "enter[ing] a dwelling used by the 

customer as a residence," a distinction that would make little 

sense if both prohibitions meant the same thing. See Augsburger 

v. Homestead Mut. Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385, 

856 N.W.2d 874. 

¶23 In sum, we conclude that "dwelling used by the 

customer as a residence" in Wis. Stat. § 425.206(2)(b) includes 

a garage attached to the residential building in which the 

customer lives. Defendants therefore violated § 425.206(2)(b) 

when they repossessed Duncan's car from the parking garage of 

her apartment building without her consent. 

IV

¶24 We turn next to Duncan's claim of unconscionability 

pursuant to Wis. Stat. § 425.107(1). We begin with the language 

of the statute: 
No. 2019AP1365 

16

With respect to a consumer credit transaction, if the 

court as a matter of law finds that any aspect of the 

transaction, any conduct directed against the customer 

by a party to the transaction, or any result of the 

transaction is unconscionable, the court shall, in 

addition to the remedy and penalty authorized in sub. 

(5), either refuse to enforce the transaction against 

the customer, or so limit the application of any 

unconscionable aspect or conduct to avoid any 

unconscionable result. 

§ 425.107(1). The statute enumerates a number of different 

factors the court may consider pertinent to determining whether 

a transaction, conduct directed against the customer, or the 

result of the transaction are unconscionable. See

§ 425.107(3)(a)-(i). In addition to the remedies specified in 

subsec. (1), upon a finding of unconscionability a customer may 

recover statutory and actual damages pursuant to Wis. Stat. 

§ 425.303. See § 425.107(5). 

¶25 The general rule in the Wisconsin Consumer Act is that 

"[a]ny right or obligation declared" in the Act "is enforceable 

by action unless the provision declaring it specifies a 

different and limited effect." Wis. Stat. § 425.301(2). But 

Wis. Stat. § 425.102 states that the provisions of that 

subchapter, including the unconscionability provision in Wis. 

Stat. § 425.107, "appl[y] to actions or other proceedings 

brought by a creditor to enforce rights arising from consumer 

credit transactions and to extortionate extensions of credit 

under s. 425.108."10 We are therefore left with two 

 

10 Duncan does not allege a violation of Wis. Stat. 

§ 425.108, which prohibits extortionate extensions of credit. 

As a result, we do not address the implications of Wis. Stat. 

§ 425.102 on the available remedies for violations of § 425.108. 
No. 2019AP1365 

17

questions: (1) can customers bring claims of unconscionability 

under § 425.107 only in "actions or other proceedings brought by 

a creditor to enforce rights arising from consumer credit 

transactions"?; and (2) is a non-judicial repossession pursuant 

to Wis. Stat. § 425.206(1)(d) such an action or other 

proceeding?

A

¶26 Although we have not previously addressed the first 

question, several federal district courts have, and all have 

concluded that a consumer may raise an unconscionability claim 

under Wis. Stat. § 425.107 only in response to an action or 

other proceeding brought by a creditor. In Riel v. Navient 

Sols., Inc., No. 16-CV-1191-JPS, 2017 WL 168900 (E.D. Wis. 

Jan. 17, 2017), the court concluded that the scope statement in 

Wis. Stat. § 425.102 meant that consumers could not enforce 

"[s]ection 425.107's prohibitions on unconscionability via a 

separate civil lawsuit." Id. at *3 (citing Tammi v. Porsche 

Cars N.A., Inc., 2009 WI 83, ¶27, 320 Wis. 2d 45, 768 

N.W.2d 783). The court held that, because § 425.107(1) applied 

only to actions or other proceedings brought by a creditor, the 

statute implied "that [customers] must raise unconscionability 

in the form of an affirmative defense to [a creditor's] lawsuit 

to collect the loans, if one is filed." Id. Other federal 

district courts have followed Riel's reasoning. See, e.g., 

Gable v. Universal Acceptance Corp., 338 F. Supp. 3d 943, 956-57 

(E.D. Wis. 2018); VanHuss v. Rausch, Sturm, Israel, Enerson & 
No. 2019AP1365 

18

Hornik, No. 16-cv-372-slc, 2017 WL 1379402, at *10 (W.D. Wis. 

Apr. 14, 2017). 

¶27 We agree with the federal courts that the scope 

language of Wis. Stat. § 425.102 bars a customer from bringing a 

claim of unconscionability under Wis. Stat. § 425.107 except in 

response to "actions or other proceedings brought by a 

creditor." Although the protections of the Wisconsin Consumer 

Act are generally enforceable in actions brought by consumers, 

§ 425.102 makes statutory unconscionability claims available in 

a more limited set of circumstances. These limitations are in 

line with the common law doctrine of unconscionability, which is 

a defense to contract enforcement, not an affirmative claim 

available outside a contract-enforcement or breach-of-contract 

action. See Rosecky v. Schissel, 2013 WI 66, ¶57, 349 

Wis. 2d 84, 833 N.W.2d 634. 

¶28 We therefore hold that a consumer may assert a claim 

of unconscionability under Wis. Stat. § 425.107 only in response 

to "actions or other proceedings brought by a creditor to 

enforce rights arising from consumer credit transactions." See

Wis. Stat. § 425.102. 

B

¶29 On the second question, we conclude that a nonjudicial repossession pursuant to Wis. Stat. § 425.206(1)(d) is 

not one of the "actions or other proceedings brought by a 

creditor" contemplated by Wis. Stat. § 425.102.11 Although 

 

11 There are multiple ways a creditor can obtain the right 

to non-judicially repossess a vehicle. The creditor may, as in 
No. 2019AP1365 

19

neither "actions" nor "other proceedings" is defined in the 

Wisconsin Consumer Act, the context of the Act reveals that 

these terms refer to creditor-initiated litigation or other 

legal processes akin to litigation pursued by a creditor. 

¶30 Taking the word "actions" first, this term is 

consistently used throughout the Wisconsin Consumer Act to refer 

to litigation. For example, Wis. Stat. § 425.205, titled 

"Action to recover collateral," explains that "a creditor 

seeking to obtain possession of collateral or goods subject to a 

consumer lease shall commence an action for replevin of the 

collateral or leased goods." § 425.205(1) (emphasis added). 

The statute goes on to describe the process a creditor must 

follow in filing a replevin action, and it specifies the form 

and contents of the summons and complaint "in such actions." 

See § 425.205(1)-(3). Several other statutes similarly use 

 

this case, follow the notice process laid out in Wis. 

Stat. §§ 425.205(1g) and 425.206(1)(d); or a creditor may, after 

obtaining a judgment in a replevin action, non-judicially 

repossess the vehicle. See § 425.205(5)(b). In the latter 

case, "non-judicial" is something of a misnomer, since that 

remedy is available only after a creditor files and prevails in 

a replevin case. Section 425.205(5)(b) nevertheless refers to 

this as a "nonjudicial recovery" of collateral distinct from the 

creditor's right after obtaining judgment in a replevin action 

to "[h]ave execution issue to require the sheriff of the county 

where the collateral or leased goods may be to take the same 

from the defendant and deliver it to the plaintiff." 

§ 425.205(5)(a). 

Our holding that "actions or other proceedings" does not 

encompass non-judicial repossessions is limited to non-judicial 

repossessions pursuant to § 425.206(1)(d), since a non-judicial 

repossession pursuant to § 425.205(5)(b) is possible only after 

a creditor prevails in an "action[] or other proceeding[]"——that 

is, a replevin action. See § 425.205(1). 
No. 2019AP1365 

20

"action" to refer to a lawsuit or other judicial proceeding. 

See, e.g., Wis. Stat. § 425.111(1) ("Prior to entry of judgment

in an action subject to this subchapter, no process, . . . shall 

issue" except under certain circumstances (emphases added)); 

Wis. Stat. § 425.203(1) (explaining that, after certain 

conditions are met, "a merchant may commence an action to 

recover collateral . . . or reduce the claim to a judgment by 

any available judicial procedure" (emphases added)). Unlike 

these actions, non-judicial repossession under Wis. 

Stat. § 425.206(1)(d) is an explicit alternative to litigation 

that does not require a creditor to assert its rights in court. 

Non-judicial repossession is available to a creditor 

under § 425.206(1)(d) only if the customer fails to demand that 

the creditor file a replevin action. See § 425.206(1)(b), (d). 

As a result, a non-judicial repossession under § 425.206(1)(d) 

is not an "action[]" described in § 425.102. 

¶31 As for "other proceedings," we know from the phrase 

"actions or other proceedings," that it, too, refers to 

something like litigation. Wis. Stat. § 425.102. After all, 

"actions or other proceedings" implies that "actions" (i.e. 

litigation) are one type of "proceedings." Id. (emphasis 

added); see Stroede v. Soc'y Ins., 2021 WI 43, ¶¶13, 15, 397 

Wis. 2d 17, 959 N.W.2d 305 (explaining that in the list "owner, 

lessee, tenant, or other lawful occupant," an "other lawful 

occupant" covered only those persons who had the same type of 

control over property as did owners, lessees, and tenants). 

Other sections in ch. 425 provide further contextual support for 
No. 2019AP1365 

21

that conclusion. For example, Wis. Stat. § 425.110(1) prevents 

employers from firing an employee because "a merchant has 

subjected or attempted to subject unpaid earnings of the 

employee to garnishment or like proceeding directed to the 

employer for the purpose of paying a judgment arising from a 

consumer credit transaction." Id. (emphasis added). The 

earnings-garnishment statutes use the terms "action" and 

"proceeding" synonymously, and set forth a process different in 

some respects from ordinary civil litigation. See, e.g., Wis. 

Stat. § 812.31(3) (referring to an "earnings garnishment 

action"); § 812.31(4) (describing the form of pleadings in "an 

earnings garnishment proceeding"); see also Wis. Stat. § 812.35 

(laying out the process for "commenc[ing] an earnings 

garnishment proceeding"). Similarly, Wis. Stat. § 425.203(3)(b) 

refers to "a proceeding for a deficiency judgment pursuant to 

s. 425.209(1)," which occurs in court following repossessions 

performed pursuant to a replevin judgment. See also

§ 425.203(3)(a). In other words, "other proceedings" are formal 

legal processes similar to litigation that allow a creditor to 

enforce its rights.12 

 

12 At the time the Wisconsin Consumer Act was adopted,

Black's Law Dictionary used the term "proceeding" almost 

identically with "action." Proceeding, Black's Law Dictionary

1368 (4th rev. ed. 1968) ("In a general sense, the form and 

manner of conducting juridical business before a court or 

judicial officer; regular and orderly progress in form of law; 

including all possible steps in an action from its commencement 

to the execution of judgment."). A subsequent edition included 

a slightly different definition, but not one that suggests that 

non-judicial repossession is an action or proceeding. 

"Proceeding" included "action and special proceedings before 
No. 2019AP1365 

22

¶32 Other scope provisions in the Wisconsin Consumer Act 

demonstrate that "actions or other proceedings" refers to a 

narrow subset of things a creditor might do to enforce its 

rights. For example, Wis. Stat. § 427.102 demonstrates that 

when the legislature wants a statute's scope to encompass the 

full range of steps a creditor might take in recovering debts, 

it knows how to write a sufficiently broad statement: "This 

chapter applies to conduct and practices in connection with the 

collection of obligations arising from consumer transactions." 

Id. (emphasis added). Slightly narrower is Wis. Stat.

§ 425.201, which provides that subchapter II of Chapter 425

"applies to the enforcement by a creditor of security interests 

in collateral." The general "enforcement . . . of security 

interests" is broad enough to encompass non-judicial 

repossessions, because that is a means by which a creditor may 

enforce a security interest in collateral. But "actions or 

other proceedings" is narrower than "conduct and practices" and 

"enforcement . . . of security interests." "Actions or other 

proceedings" includes only a limited subset of ways a creditor 

might enforce its rights, namely through litigation or similar 

formal legal processes. 

 

judicial tribunals as well as proceedings pending before quasijudicial officers and boards," and "any action, hearing, 

investigation, inquest, or inquiry (whether conducted by a 

court, administrative agency, hearing officer, arbitrator, 

legislative body, or any other person authorized by law) in 

which, pursuant to law, testimony can be compelled to be given." 

Proceeding, Black's Law Dictionary 1083-84 (5th ed. 1979). 
No. 2019AP1365 

23

¶33 Non-judicial repossessions under Wis. 

Stat. § 425.206(1)(d), however, are unlike litigation. For one 

thing, the non-judicial repossession process is highly informal. 

Indeed, all a merchant has to do prior to non-judicially 

repossessing a car is send the customer a notice containing the 

disclosures required by Wis. Stat. § 425.205(1g)(a). If the 

customer does nothing for 15 days, then the merchant may 

repossess the car, no additional process or procedures required. 

See § 425.206(1)(d). For another thing, non-judicial 

repossessions under § 425.206(1)(d) are non-adversarial, and 

require no third-party involvement at all, let alone that of a 

neutral third party like a judge. Indeed, aside from curing the 

default under Wis. Stat. § 425.105, a customer's only way of 

contesting a non-judicial repossession is by demanding the 

merchant instead file a replevin action in the circuit 

court. §§ 425.205(1g)(a)3.; 425.206(1)(d). In other words, 

non-judicial repossession is permitted only after the customer 

fails to demand the creditor file an "action[] or other 

proceeding[]." See §§ 425.206(1)(d); 425.102. 

¶34 We therefore conclude that non-judicial repossessions 

under Wis. Stat. § 425.206(1)(d) are not "actions or other 

proceedings brought by a creditor." As a result, a claim of 

unconscionability under Wis. Stat. § 425.107(1) is unavailable 

in this case. See Wis. Stat. § 425.102. 

V

¶35 We conclude that "dwelling used by the customer as a 

residence" in Wis. Stat. § 425.206(2)(b) includes a garage 
No. 2019AP1365 

24

attached to the residential building in which the customer 

lives. Defendants therefore violated § 425.206(2)(b) when they 

repossessed Duncan's car from the parking garage in her 

apartment building. We also conclude that Duncan's 

unconscionability claim under Wis. Stat. § 425.107 fails because 

such claims are available only in response to "actions or other 

proceedings brought by a creditor," Wis. Stat. § 425.102, and 

Defendants' non-judicial repossession of Duncan's car under Wis. 

Stat. § 425.206(1)(d) was not an action or other proceeding. 

Accordingly, we affirm the court of appeals' decision as 

modified by our conclusion on unconscionability and remand to 

the circuit court for further proceedings. 

By the Court.—The decision of the court of appeals is 

modified and affirmed and, as modified, the cause remanded 

to the circuit court.
No. 2019AP1365.jjk

1

¶36 JILL J. KAROFSKY, J. (concurring). I agree that 

Defendants violated Wis. Stat. § 425.206(2)(b) by entering 

Duncan's "dwelling" and concur in the court's ultimate mandate. 

I disagree, however, with the conclusion that a customer can 

never raise unconscionability as a defense to a non-judicial 

repossession. Because the applicable statutes plainly permit an 

unconscionability defense, I respectfully concur.

I

¶37 A creditor may repossess a motor vehicle that serves 

as collateral through either a judicial or a non-judicial 

process. Judicial repossession follows a creditor's successful 

replevin action. See Wis. Stat. §§ 425.205 & 425.206(1)(b). 

Non-judicial repossession requires no court order, but the 

creditor must still adhere to the legally prescribed process 

under § 425.206(1)(d)-(2). That non-judicial process includes:

 Providing the customer detailed notice per § 425.205(1g);

 Taking no action for at least 15 days after that notice 

is given, § 425.206(1)(d);

 Committing no "breach of the peace" when repossessing the 

car, § 425.206(2)(a); and

 Abstaining from entering "a dwelling used by the customer 

as a residence" absent the customer's voluntary request, 

§ 425.206(2)(b).

Failure to follow these steps exposes the creditor to legal 

sanctions. See § 425.206(3).

¶38 Here, in response to the non-judicial repossession of 

her car, Duncan alleges that Defendants acted unconscionably
No. 2019AP1365.jjk

2

both during and after the repossession, contrary to Wis. Stat. 

§ 425.107. The question is, may she raise this 

unconscionability defense? To answer that question, I first 

look to the plain meaning of the statutes governing 

unconscionability. I then explain why we should give the 

operative statutory text at issue its common, ordinary, and 

accepted meaning. I conclude by applying that meaning to 

Duncan's circumstances and determine that she and customers like 

her may raise an unconscionability defense, regardless of which 

repossession alternative a creditor brings.

A

¶39 The unconscionability defense codified in Wis. Stat. 

§ 425.107 entitles a customer to additional relief "if the court 

as a matter of law finds that any aspect of the transaction, any 

conduct directed against the customer by a party to the 

transaction, or any result of the transaction is 

unconscionable." § 425.107(1). I agree with my colleagues that 

this defense is subject to the scope provision at Wis. Stat. 

§ 425.102, and as such is only available in response "to actions 

or other proceedings brought by a creditor to enforce rights 

arising from consumer credit transactions" (emphasis added). I 

further agree that a non-judicial repossession is not an 

"action." We diverge, however, on whether a non-judicial 

repossession constitutes a "proceeding."

¶40 "Proceeding" is neither specially defined nor 

technical and therefore carries its "common, ordinary, and 

accepted meaning." See, e.g., Stroede v. Soc'y Ins., 2021 
No. 2019AP1365.jjk

3

WI 43, ¶11, 397 Wis. 2d 17, 959 N.W.2d 305; see also Wis. Stat. 

§ 990.01(1). To discern that common, ordinary, and accepted 

meaning the court often looks to dictionaries as well as the 

word's usage in common parlance. See, e.g., Stroede, 397 

Wis. 2d 17, ¶12; Topolski v. Topolski, 2011 WI 59, ¶42, 335 

Wis. 2d 327, 802 N.W.2d 482; State ex rel. McManus v. Bd. of 

Trs. of Policemen's Pension Fund, 138 Wis. 133, 136, 119 

N.W. 806 (1909) (adopting a word's broader "ordinary modern 

usage" as used in "common parlance" over a dated common-law 

meaning). Here, dictionary and judicial definitions of 

"proceeding," as well as its usage in common parlance, all 

confirm that "proceeding" means any legally prescribed process 

for enforcing a legal right.

¶41 The Oxford English Dictionary's leading "Law" 

definition for "proceeding" broadly includes "[a] legal action 

or process." Proceeding, Oxford English Dictionary (3d ed. 

2007) (emphasis added). That breadth is mirrored in another 

dictionary's "proceeding" definition: "A course of action; a 

procedure." Proceeding, American Heritage Dictionary 1444 (3d 

ed. 1992). These broad dictionary definitions match 

comprehensive judicial definitions of "proceeding." Several 

courts have recited the Words and Phrases definition that 

"proceeding" is "a very comprehensive term" generally meaning "a 

prescribed course of action for enforcing a legal right." See, 

e.g., Wash. Ry. & Elec. Co. v. D.C., 77 F.2d 366, 369 (D.C. Cir. 

1935) (quoting Hyattsville Bldg. Ass'n v. Bouic, 44 App. D.C. 

408, 413 (D.C. Cir. 1916)); Borough of Jamesburg v. Hubbs, 80 
No. 2019AP1365.jjk

4

A.2d 100, 102 (N.J. 1951) (quoting Words and Phrases at 83). As 

the U.S. Court of Appeals for the Eighth Circuit aptly 

summarized: "'Proceeding' is a comprehensive term meaning the 

action of proceeding——a particular step or series of steps, 

adopted for accomplishing something. This is the dictionary 

definition as well as the meaning of the term in common 

parlance." Rice v. United States, 356 F.2d 709, 712 (8th 

Cir. 1966).

¶42 Indeed, in common parlance "proceeding" regularly

describes a legally prescribed process for enforcing rights that 

occurs without any litigation before a judicial or 

administrative tribunal. For example, under the United States 

Code the federal government may execute a civil forfeiture of 

certain contraband via a "nonjudicial civil forfeiture 

proceeding." 18 U.S.C. § 983 (2018).1 The United State Supreme 

Court has dubbed similar non-judicial forfeitures permitted 

under 19 U.S.C. §§ 1607-09 as "nonjudicial, summary forfeiture 

proceedings." See United States v. Von Neumann, 474 U.S. 242, 

244 n.4 (1986); United States v. Eight Thousand Eight Hundred & 

Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 557 n.2

(1983). More recently, the Court referred to Colorado's nonjudicial foreclosure procedure as "nonjudicial foreclosure 

proceedings," as did the Tenth Circuit opinion the Court was 

 

1 Courts interpreting 18 U.S.C. § 983 similarly use the 

"nonjudicial civil forfeiture proceeding" or "nonjudicial 

forfeiture proceeding" moniker. See, e.g., Omidi v. United 

States, 851 F.3d 859 (9th Cir. 2017); Langbord v. U.S. Dep't of 

Treasury, 832 F.3d 170, 182 (3d Cir. 2016). All references to 

the United States Code are to the 2018 version.
No. 2019AP1365.jjk

5

reviewing. See Obduskey v. McCarthy & Holthus LLP, 

___ U.S. ____, 139 S. Ct. 1029 (2019), aff'g Obduskey v. Wells 

Fargo, 879 F.3d 1216 (10th Cir. 2018). State courts speak 

similarly, such as the California Supreme Court discussing that 

state's "nonjudicial foreclosure proceedings." Dreyfuss v. 

Union Bank of Cal., 11 P.3d 383, 385-86, 390 (Cal. 2000). Other 

examples abound.2

¶43 Taken together, the dictionary and judicial 

definitions of "proceeding" as well as that word's usage in 

common parlance converge on one, comprehensive common, ordinary, 

and accepted meaning: a legally prescribed process for 

enforcing a legal right.

B

¶44 I would simply give "proceeding" its common, ordinary, 

and accepted meaning here. I see nothing in the statutory 

context that requires a different result. True, context and a 

word's relationship "to the language of surrounding or closelyrelated statutes" can affect a word's otherwise common, 

ordinary, and accepted meaning. See, e.g., Stroede, 397 Wis. 2d 

17, ¶11. It is also true that in the statutes surrounding Wis. 

Stat. § 425.102, "proceeding" is most often used to connote 

"something like litigation." But that fact does not in and of 

 

2 See, e.g., United States v. Henderson, 707 F.2d 853 (5th 

Cir. 1983); Bryan E. Meek, Mortgage Foreclosure 

Proceedings: Where We Have Been and Where We Need to Go, 48 

Akron L. Rev. 129 (2015); Stefan D. Cassella, The Civil Asset 

Forfeiture Reform Act of 2000, 27 J. Legis. 97 (2001); Jaime 

Marie Nies, 15A Cyc. of Fed. Proc. § 88:45 (3d ed.).
No. 2019AP1365.jjk

6

itself override the word's otherwise common, ordinary, and 

accepted meaning.

¶45 Rather, the legislature instructs that we must apply 

an undefined, non-technical word's "common and approved usage," 

except in the limited circumstance where it "would produce a 

result inconsistent with the manifest intent of the 

legislature." Wis. Stat. § 990.01(1). Thus, only if 

"proceeding" as used in related or nearby provisions evinces a 

real conflict between that word's common, ordinary, and accepted 

meaning and those provisions' "manifest [legislative] intent" 

may this court depart from the common, ordinary, and accepted 

meaning. But nothing in how "proceeding" is used in neighboring 

provisions causes such a conflict.

¶46 To the contrary, the comprehensive common, ordinary, 

and accepted meaning of "proceeding" harmonizes that word's

varied use across the two neighboring provisions cited by the 

majority/lead opinion. The first, Wis. Stat. § 425.110(1), 

discusses "garnishment or like proceedings directed to the 

employer for the purpose of paying a judgment arising from a 

consumer credit transaction." Garnishment is a type of legal 

action, see Wis. Stat. §§ 812.30-812.44, so a "proceeding" like 

garnishment is something like a legal action. In other words, 

"proceeding" is used as a synonym for a legal action. That 

usage fits the common, ordinary, and accepted meaning of 

"proceeding" because a legal action——such as a garnishment 

proceeding——is a statutorily prescribed process for enforcing a 

legal right. See, e.g., id.
No. 2019AP1365.jjk

7

¶47 A slightly different meaning of "proceeding" appears 

in Wis. Stat. § 425.203(3)(b). Section 425.203(3)(b) declares 

that for certain consumer transactions, a judicial hearing to 

confirm a creditor's sale of repossessed collateral "shall be 

considered a proceeding for a deficiency judgment." Here, 

"proceeding" refers to a specific procedure within a larger 

action rather than the action itself. And, consistent with the 

common, ordinary, and accepted meaning of "proceeding," this 

intra-action procedure is also a statutorily prescribed process 

for enforcing a legal right. See Wis. Stat. §§ 425.209-425.210. 

The varied meaning of "proceeding" across these two nearby 

provisions——a synonym of legal action in the former and a 

particular procedure within an action in the latter——verifies 

that in this statutory chapter, "proceeding" is used as 

comprehensively as its common, ordinary, and accepted meaning.

See Int'l Wire Works v. Hanover Fire Ins. Co., 230 Wis. 72, 74-

75, 283 N.W. 292 (1939) (concluding that different statutes' 

particular uses of a word that "do not conflict with [its] 

common meaning . . . indicate[s] that the legislature of this 

state has adopted th[at] definition").

¶48 Similarly, nothing in other nearby scope provisions 

calls for a departure from the common, ordinary, and accepted 

meaning of "proceeding." In contrast to the "actions or other 

proceedings" phrase at issue here, the nearby "Debt Collection" 

chapter's scope extends to "conduct and practices." See Wis. 

Stat. § 427.102. "[C]onduct and practices" might very well 

encompass a non-judicial repossession. But just because 
No. 2019AP1365.jjk

8

"conduct and practices" could include non-judicial 

repossessions, does not mean the legislature is forever bound to 

use that exact language each and every time it intends for a 

statute to cover such repossessions. That logic unduly hampers 

the legislature's freedom to use different but overlapping

language to accomplish valid policy distinctions. Distinct 

scopes can harmoniously overlap without any conflict. As such, 

the legislature's chosen phrasing in a different, apparently 

overlapping——but non-conflicting——scope provision has no bearing 

on whether "proceeding" in this scope provision should carry its 

common, ordinary, and accepted meaning. In sum, I find no 

evidence of a conflicting "manifest [legislative] intent" in the 

statutory context that Wis. Stat. § 990.01(1) requires to 

justify a departure from the common, ordinary, and accepted 

meaning of "proceeding."

¶49 Beyond lacking contextual support, the "something like 

litigation" limitation produces two results at odds with the 

Wisconsin Consumer Act's textually expressed purposes. First, 

it sets a trap for an unwary customer subjected to a creditor's 

unconscionable conduct. A savvy customer who within 15 days of 

the notice makes a written demand that a creditor instead file a 

replevin action, see Wis. Stat. § 425.206(1)(d), preserves her 

unconscionability defense. But an unwary customer who misses 

that tight demand deadline would lose even a meritorious claim 

against a creditor's unconscionable conduct——giving an

unconscionable creditor a free pass. Second, an interpretation 

narrower than the common, ordinary, and accepted meaning renders 
No. 2019AP1365.jjk

9

the unconscionability defense a nullity in situations where, as 

alleged here, a creditor's unconscionable conduct first occurs 

during or after the actual repossession, well beyond the 15-day 

demand deadline. Even a savvy customer, who simply preferred 

the efficiency of the non-judicial route, would suddenly be 

without recourse for a creditor's post-repossession conduct, 

despite the unconscionability provision applying to "any conduct

directed against the customer." See Wis. Stat. § 425.107(1) 

(emphasis added). Both results conflict with the legislature's 

textually expressed directive that we "liberally construe[] and 

appl[y]" the Act "to promote" the "protect[ion of] customers 

against unfair, deceptive, false, misleading and unconscionable 

practices by merchants." Wis. Stat. § 421.102(1), (2)(b).

¶50 At bottom, "proceeding" should carry its common, 

ordinary, and accepted meaning in Wis. Stat. § 425.102. The 

legislature and our case law require it to because nothing in 

the surrounding context justifies a departure from that 

interpretation. And, importantly, applying the common, 

ordinary, and accepted meaning here offers the additional 

benefit of satisfying the "cardinal rule" that we "favor an 

interpretation that will fulfill the [textually expressed] 

purpose of the statute over an interpretation that defeats the 

manifest objective of the act." See, e.g., State v. Davis, 2001 

WI 136, ¶13, 248 Wis. 2d 986, 637 N.W.2d 62.

C

¶51 Applying the common, ordinary, and accepted meaning of 

"proceeding," I conclude that "other proceedings" includes a 
No. 2019AP1365.jjk

10

non-judicial repossession. A non-judicial repossession is a 

legally prescribed process for enforcing a legal right. The 

statute prescribes the initiating notice, the 15-day wait 

period, and the prohibitions against both "breach[ing] of the 

peace" and entering "a dwelling used by the customer as a 

residence." Wis. Stat. § 425.206(1)(d)-(2). It matters not 

that the legislature made a policy decision to cut out the 

expense and time of litigation. Nothing in that policy choice 

indicates a simultaneous desire to foreclose a customer in 

Duncan's position from even requesting judicial scrutiny of 

unconscionable creditor conduct. Quite the opposite. The 

legislature directs us to "liberally construe[] and appl[y]" the 

entire Act to "protect customers against . . . unconscionable 

practices by merchants." See Wis. Stat. § 421.102(1), (2)(b).

Put simply, the statutorily prescribed non-judicial repossession 

process to enforce a creditor's right to collateral plainly 

constitutes an "other proceeding[] brought by a creditor to 

enforce rights arising from [a] consumer credit transaction[]" 

under Wis. Stat. § 425.102.

¶52 Before concluding that Duncan can bring her 

unconscionability claim here, I address one last wrinkle. At 

common law, unconscionability claims arose defensively. That is 

precisely the posture Duncan is in here, albeit not in the 

traditional sense. Duncan raises unconscionability as a defense 

to Defendants enforcing their right to repossess her car. Had 

that repossession commenced via a replevin action, Defendants 

would have filed a complaint and Duncan would raise
No. 2019AP1365.jjk

11

unconscionability in her answer or some post-judgment filing if 

the unconscionable conduct occurred during or after the 

repossession. But a non-judicial repossession dispenses with 

these traditional pleadings. Therefore, Duncan can raise 

unconscionability only in her own complaint. That is of no 

moment because when it comes to pleadings, this court considers 

not their form or title but their substance. See, e.g., Wis. 

Pub. Serv. Corp. v. Arby Const., Inc., 2012 WI 87, ¶37, 342 

Wis. 2d 544, 818 N.W.2d 863 (observing that this court looks 

"beyond 'hypertechnical'" labels to the pleading's actual 

"substance"). Accordingly, Duncan may raise unconscionability 

even under a pleading technically labeled "complaint" because 

its substance remains a defense to a creditor's non-judicial 

repossession.

II

¶53 I conclude that Duncan could raise an 

unconscionability defense to Defendants' non-judicial 

repossession. Here, however, her allegations do not as a matter 
No. 2019AP1365.jjk

12

of law rise to the level of unconscionable.3 Therefore, I concur 

in the court's ultimate mandate and join all but ¶29 and ¶¶31–34 

of the majority/lead opinion.

 

3 The court decides unconscionability claims "as a matter of 

law." Wis. Stat. § 425.107(1). Duncan alleges that in addition 

to unlawfully entering her "dwelling," Defendants engaged in 

unconscionable behavior by obfuscating and misleading her as to 

the cost to redeem her car; charging her nearly one-sixth of the 

car's original value to redeem it; providing her limited time to 

pay the redemption fee; vaguely referencing the possibility of 

additional fees; denying Duncan an opportunity to inspect the 

car's post-repossession condition before redeeming it; and 

communicating with Duncan in a manner that was "rude and

aggressive," so much so that Duncan eventually contacted the 

police. Accepting these statement as true and upon considering 

the factors listed in § 425.107(3), I conclude that the 

Defendants' conduct, while very troubling, did not rise to the 

level of unconscionable as a matter of law. Therefore, I agree 

that on remand the circuit court need not address Duncan's 

unconscionability claim.
No. 2019AP1365.pdr

1

¶54 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The 

court of appeals defined "dwelling," as employed in Wis. Stat. 

§ 425.206(2)(b), by choosing an administrative rule definition 

that by the definition's explicit terms applies only to Wis. 

Stat. § 422.419(1)(a). In so doing, the court of appeals 

avoided a plain-meaning analysis of § 425.206(2)(b) and the 

rules of statutory interpretation that we have repeated and 

repeated in countless cases since 2004. 

¶55 The majority opinion follows the errant lead of the 

court of appeals.1 Instead of interpreting "dwelling" within the 

structure of the statute in which it appears, e.g., "used by the 

customer as a residence," and instead of relying on Danelle 

Duncan's own statements that she never lived or resided in the 

apartment building's garage, the majority opinion ignores a 

plain-meaning analysis of Wis. Stat. § 425.206(2)(b). Rather, 

it patches together a hodgepodge of theories in order to affirm 

the court of appeals. Because I conclude that the plain meaning 

of § 425.206(2)(b) does not apply to the apartment building's 

garage, which Duncan shared with many others and has said in two 

court proceedings that she has never lived or resided in, I 

would reverse the court of appeals and affirm the summary 

judgment granted by the circuit court. Therefore, I 

respectfully dissent from the majority opinion. 

I. BACKGROUND

¶56 Duncan purchased a vehicle that she financed with an 

installment sales contract with the dealership. The dealership 

 

1 Majority op., ¶¶14-16.
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assigned the contract to Wells Fargo, and Wells Fargo then 

became the lien holder for Duncan's vehicle. 

¶57 Duncan defaulted on her loan, and on February 26, 

2015, Wells Fargo gave her notice of the right to cure the 

default by paying $887.15. Duncan did not exercise her right to 

cure the default. On July 30, 2015, Wells Fargo gave Duncan a 

second notice of right to cure, this time by paying $1,907.76. 

Again, Duncan did not cure the default. Wells Fargo sent her a 

third notice of right to cure by paying $1,372.70. Once again, 

Duncan did not cure the default. 

¶58 Therefore, pursuant to Wis. Stat. § 425.205(1g)(a), 

Wells Fargo gave notice to Duncan that it intended to repossess 

her vehicle. The notice told Duncan that she had the right to 

demand that Wells Fargo proceed through a court action for 

replevin, and that if she did so, Wells Fargo would not proceed 

with repossession until after a court judgment was issued. 

Duncan made no response to the statutory notice of intent to 

repossess that Wells Fargo had provided. 

¶59 Wells Fargo then retained Greg Strandlie's company, 

Asset Recovery Specialists ("ARS"), to proceed with non-judicial 

repossession of the vehicle. Duncan lived in a large, multistory apartment building, where she rented an apartment and also 

separately rented a space in the apartment building's garage 

that was located under the building. 

¶60 On January 27, 2016, ARS went to the apartment 

building where Duncan lived to locate the vehicle. ARS found 

Duncan's vehicle in the large multi-vehicle garage under the 
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apartment building. There was no sign at the entrance of the 

garage indicating that access was restricted, and the vehicle 

entry door was open when ARS arrived.2 A maintenance man was 

present during the process of repossessing the vehicle, and he 

never spoke with ARS personnel or raised any objection. 

Accordingly, ARS towed Duncan's vehicle out of the apartment 

building's garage. The garage door remained open when ARS left. 

¶61 On February 3, 2016, Duncan contacted the City of 

Madison's West Police District, saying that she wanted to have 

criminal charges filed against the repossession company that 

took her car. She "felt her underground apartment parking 

garage was part of her dwelling." Upon investigation, the 

officer visually verified that there were no signs or postings 

indicating "no trespassing" at the apartment building's garage 

and that a maintenance man saw the repossession from the open 

garage on January 27, 2016. 

¶62 After checking with the city attorney's office in 

Madison, where the officer was told that no Madison Ordinance 

applied to ARS's entry into the apartment building's garage, the 

criminal investigation that Duncan requested was closed. 

¶63 Duncan then brought suit in the federal court for the 

Western District of Wisconsin against ARS, Greg Strandlie and 

 

2 There is a photo of a sign at the front of the building 

that said "Resident Parking Only Unauthorized Violators Will Be 

Towed at Vehicle Owner or Operator's Expense." The record does 

not disclose the purpose of that sign, but it is likely that it 

applied to the out-of-doors parking that tenants had available 

too. The photo of the car door at the rear of the building, has 

no sign of any type.
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Wells Fargo. As part of its proceedings, the district court 

found there "are no living quarters, places to sleep, cook, eat, 

watch television, use a restroom or bathe or shower in the 

garage area, [and that] Duncan admits that she has never lived 

or resided in the garage."3 The court made various other 

findings relative to her federal claim and then granted the 

defendants' motion for summary judgment in part.4 It dismissed 

her federal claim and any portion of her state claims against 

Wells Fargo that was based on alleged unlawful retention of 

Duncan's personal property.5 

¶64 Duncan then filed suit in Dane County Circuit Court.6 

The circuit court found that Duncan did not dispute the facts as 

found by Judge Conley in district court, but that the "real" 

issue was a question of law.7 The circuit court focused its 

efforts on whether ARS complied with the Wis. Stat. 

§ 425.206(2)(b) directive that in taking possession of 

collateral a merchant may not "[e]nter a dwelling used by the 

customer as a residence except at the voluntary request of a 

customer." After noting that ch. 425 does not define 

"dwelling," the court recognized that "dwelling" has various 

 

3 Duncan v. Asset Recovery Specialists, Inc., No. 16-cv-530, 

2017 WL 2870520, at *3 (W.D. July 5, 2017), aff'd, 907 F.3d 1016 

(7th Cir. 2018).

4 Id., at *7.

5 Id.

6 The Honorable Stephen E. Ehlke presided. 

7 Duncan v. Asset Recovery Specialists, Inc., No. 17CV1704, 

at 3 (op. issued June 19, 2019). 
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statutory definitions.8 For example, the circuit court noted 

that Wis. Stat. § 101.71 defines dwelling as:

[A]ny building that contains one or more dwelling 

units. "Dwelling unit" means a structure or that part 

of a structure which is used or intended to be used as 

a home, residence or sleeping place by one person or 

by two or more persons maintaining a common household 

to the exclusion of all others.[9] 

The court also considered part of the criminal code, Wis. Stat. 

§ 943.13, "Trespass to Land," that defines "dwelling unit" as "a 

structure or that part of a structure which is used or intended 

to be used as a home, residence or sleeping place by one person 

or by two or more persons maintaining a common household to the 

exclusion of all others."10 

¶65 The circuit court then found that "it is undisputed 

that Ms. Duncan did not have a right to exclude others from her 

apartment building's garage. Rather, the garage has over 50 

parking spaces for use by the building's tenants with no tenant 

having a right to exclude any other tenant or person from the 

area. This is in contrast to, for example, single-family homes 

where owners do have exclusive control over their garage."11 The 

circuit court further found that the "parking garage was remote 

and on a different floor than her apartment [and that] the 

garage offers no use that is primarily or intimately tied to the 

use of her apartment, for example, sleeping, eating or 

 

8 Id. at 8.

9 Id. at 9.

10 Id. at 9-10.

11 Id. at 10-11. 
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conducting her private life."12 The circuit court concluded that 

the apartment building's garage did not come within the 

statutory term, "dwelling," in Wis. Stat. § 425.206(2)(b). 

Accordingly, it granted defendants' motion for summary judgment, 

and dismissed the amended complaint.13 

¶66 Duncan appealed, and the court of appeals reversed. 

The court of appeals acknowledged that "dwelling" is not defined 

in the statutory text of the Wisconsin Consumer Act of which 

Wis. Stat. § 425.206(2)(b) is a part.14 The court of appeals 

also concluded that Wis. Stat. § 422.419(1)(a), which precludes 

certain covenants in consumer agreements, was not at issue here. 

However, the court of appeals nevertheless concluded that the 

garage in Duncan's apartment building was part of a dwelling she 

used as a residence based on Wis. Admin. Code § DFI-WCA 1.392 

(July 2007). It provides, "For the purposes of 

s. 422.419(1)(a), Stats., the term 'dwelling' shall include, any 

garage, shed, barn or other building on the premises whether 

attached or unattached." 

II. DISCUSSION

A. Standard of Review

¶67 This matter involves a review of summary judgment. We 

independently review a grant or denial of summary judgment as a 

question of law. Applegate-Bader Farm, LLC v. DOR, 2021 WI 26, 

 

12 Id. at 14. 

13 Id. at 14-15.

14 Duncan v. Asset Recovery Specialists, Inc., 2020 WI App 

54, ¶22, 393 Wis. 2d 814, 948 N.W.2d 419. 
No. 2019AP1365.pdr

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¶15, 396 Wis. 2d 69, 955 N.W.2d 793 (citing Sands v. Menard, 

2017 WI 110, ¶28, 379 Wis. 2d 1, 904 N.W.2d 789). 

¶68 In order to evaluate the summary judgment decision 

made by the circuit court, we independently interpret and apply 

Wis. Stat. § 425.206(2)(b). In so doing, we determine whether 

Duncan's vehicle was lawfully repossessed from the apartment 

building's garage. As we evaluate the court of appeals' 

decision, we also interpret and assess the applicability of Wis. 

Stat. § 422.419 and Wis. Admin. Code § DFI-WCA 1.392 relative to 

whether ARS's repossession violated § 425.206(2)(b). 

¶69 Statutory interpretation and application present 

questions of law for our independent review. Wisconsin 

Legislature v. Palm, 2020 WI 42, ¶14, 391 Wis. 2d 497, 942 

N.W.2d 900 (citing Milwaukee Police Ass'n v. City of Milwaukee, 

2018 WI 86, ¶17, 383 Wis. 2d 247, 914 N.W.2d 597). Furthermore, 

statutory interpretations grounded in undisputed material facts 

provide questions of law for our independent review. Westmas v. 

Creekside Tree Serv., Inc., 2018 WI 12, ¶17, 379 Wis. 2d 471, 

907 N.W.2d 68. We are assisted in our independent 

interpretation by decisions of the district court, the circuit 

court and the court of appeals. Marder v. Bd. of Regents of 

Univ. of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 

N.W.2d 110.

¶70 In the matter before us, we also interpret provisions 

of Wisconsin's Administrative Code independently, as questions 

of law. Orion Flight Servs., Inc. v. Basler Flight Serv., 2006 

WI 51, ¶18, 290 Wis. 2d 421, 714 N.W.2d 130. 
No. 2019AP1365.pdr

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B. Statutory Interpretation

1. General principles

¶71 Statutory interpretation always begins with reading 

the words the legislature chose to enact in order to apply them 

and give the statute its full effect. Townsend v. ChartSwap, 

LLC, 2021 WI 86, ¶12, __ Wis. 2d __, __ N.W.2d __, 2021 

WL 5538667 (citing State ex rel. Kalal v. Cir. Ct. for Dane 

Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110). 

Statutory words are given their "'common, ordinary, and accepted 

meaning, except that technical or specially-defined words or 

phrases are given their technical or special definitional 

meaning.'" Id. (quoting Kalal, 271 Wis. 2d 633, ¶45); Wis. 

Stat. § 990.01(1).15 

¶72 Context also is important to determining statutory 

meaning, as is "'the structure of the statute in which the 

operative language appears.'" Id., ¶13 (quoting Kalal, 271 

Wis. 2d 633, ¶46). If the statute's meaning is plain we usually 

stop our inquiry. However, as we determine a statute's meaning, 

we assess whether the statute is ambiguous. A statute is 

ambiguous if it is capable of being understood by reasonably 

well-informed persons in two or more senses. Voces De La 

Frontera, Inc. v. Clarke, 2017 WI 16, ¶15, 373 Wis. 2d 348, 891 

N.W.2d 803. Generally, we do not consult secondary sources such 

 

15 Wisconsin Stat. § 990.01 provides in relevant 

part: "(1) General rule. All words and phrases shall be 

construed according to common and approved usage; but technical 

words and phrases and others that have a peculiar meaning in the 

law shall be construed according to such meaning." 
No. 2019AP1365.pdr

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as legislative history unless the language of the statute is 

ambiguous. Id.

2. Wisconsin Stat. 425.206(2)(b)

¶73 The initial focus of my inquiry is Wis. Stat. 

§ 425.206(2)(b) because the terms, "dwelling used by the 

customer as a residence," are central to this dispute. 

"Dwelling" is not defined in ch. 425. It also is not defined in 

the general definitional section, Wis. Stat. § 421.301, which 

would then apply to § 425.206. 

¶74 However "dwelling" is defined in many other places in 

Wisconsin statutes, some of the definitions contain 

similarities. See, e.g., Wis. Stat. § 943.14(1),16 which defines 

"dwelling" as "a structure or part of a structure that is used 

or intended to be used as a home or residence by one or more 

persons to the exclusion of all others." (Emphasis added.) 

Wisconsin Stat. § 943.13(1e)(ar)17 similarly states that 

"'Dwelling unit' means a structure or that part of a structure 

which is used or intended to be used as a home, residence or 

sleeping place by one person or by 2 or more persons maintaining 

a common household, to the exclusion of all others." (Emphasis 

added.)

¶75 Wisconsin Stat. § 75.195(1)(a)18 defines "[d]welling" 

as "any building that contains one or 2 dwelling units and any 

 

16 Criminal trespass to dwellings, Wis. Stat. § 943.14.

17 Trespass to land, Wis. Stat. § 943.13. 

18 Extended time for beginning tax foreclosure, Wis. Stat. 

§ 75.195.
No. 2019AP1365.pdr

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land included with that building in the same entry on the tax 

roll." With subsec. (1)(b) further providing detail that 

"'[d]welling unit' means a structure or that part of a structure 

used as a home, residence or sleeping place by one person or by 

2 or more persons maintaining a common household, to the 

exclusion of all others." (Emphasis added.) Wisconsin Stat. 

§ 101.61(1)19 similarly defines dwelling: "'Dwelling' means any 

building that contains one or 2 dwelling units. 'Dwelling unit' 

means a structure or that part of a structure which is used or 

intended to be used as a home, residence or sleeping place by 

one person or by 2 or more persons maintaining a common 

household, to the exclusion of all others." (Emphasis added.) 

Wisconsin Stat. § 101.71(2)20 defines dwelling 

similarly: "'Dwelling' means any building that contains one or 

more dwelling units. 'Dwelling unit' means a structure or that 

part of a structure which is used or intended to be used as a 

home, residence or sleeping place by one person or by 2 or more 

persons maintaining a common household, to the exclusion of all 

others." (Emphasis added.)

¶76 Wisconsin Stat. § 425.206 appears in Subchapter II of 

ch. 425, Enforcement of Security Interests in Collateral. 

Section 425.206 applies to the non-judicial enforcement of lien 

rights. I begin by reviewing the term, "dwelling," in the 

structure of § 425.206 in which "dwelling" appears. It provides 

in relevant part:

 

19 Definitions for ch. 101, Wis. Stat. § 101.61.

20 Definitions for ch. 101 subchapter, Wis. Stat. § 101.71.
No. 2019AP1365.pdr

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(2) In taking possession of collateral or leased 

goods, no merchant may do any of the following:

(a) Commit a breach of the peace.

(b) Enter a dwelling used by the customer as a 

residence except at the voluntary request of a 

customer. 

§ 425.206(2). Although, "dwelling" is not defined in regard to 

portions of statutes that set out provisions that relate to 

Wisconsin consumer transactions, I note that findings of the 

earlier trial courts who considered this dispute provide the 

factual context in which we interpret "dwelling," as that term 

appears in § 425.206(2)(b). 

¶77 For example, the circuit court found that the 

apartment building's garage contained spaces for more than 50 

cars, with no tenant having a right to exclude others, which the 

circuit court also found was in contrast to single-family homes 

where there is a right to exclusive control over the garage. 

Duncan agreed that she did not have the right to exclude others 

from the apartment building's garage. Therefore, she could not 

bring suit for criminal trespass to dwellings, pursuant to Wis. 

Stat. § 943.14 or for trespass to land pursuant to Wis. Stat. 

§ 943.13, which she tried to do before filing in federal 

district court. 

¶78 It is undisputed that Duncan does not sleep in the 

garage. The district court found that there "are no living 

quarters, places to sleep, cook, eat, watch television, use a 

restroom or bathe or shower in the garage area, [and that] 
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Duncan admits that she has never lived or resided in the 

garage."21

¶79 In addition, the "dwelling" identified in Wis. Stat. 

§ 425.206(2)(b) is at least partially defined by the structure 

of § 425.206(2)(b), which qualifies the "dwelling" as one "used 

by the customer as a residence." That is, "dwelling" is limited 

by the use to which the customer puts the dwelling. Stated 

otherwise, the customer must use the "dwelling" referenced in 

§ 425.206(2)(b) as a residence in order to come within the plain 

meaning of § 425.206(2)(b). 

¶80 Customer is an often utilized term. See, e.g., Wis. 

Stat. § 421.301(9) (addressing a "[c]onsumer credit sale" 

wherein a "customer" enters into such a transaction). Duncan 

purchased the vehicle in a consumer credit sale; therefore, she 

is a "customer." 

¶81 "Residence" is undefined, but it has a commonly 

understood meaning as the place where one actually lives.22 

Here, "dwelling" must be the place used by the customer, Duncan, 

as a residence. Therefore, in order to fit within the structure 

of Wis. Stat. § 425.206(2)(b), the apartment building's garage 

must be the place where Duncan actually lives——where she 

resides. She has admitted that she never lived or resided in 

the apartment building's garage, and the district court and the 

 

21 Duncan, 2017 WL 2870520, at *3. 

22 Residence: "the place where one actually lives as 

distinguished from his domicile or a place of temporary 

sojourn." Webster's New Collegiate Dictionary 984 (1974). 
No. 2019AP1365.pdr

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circuit court both so found. Instead, she rented a parking 

space in a garage shared by other residents and maintained by a 

third-party apartment owner. Therefore, based on the plain 

meaning of the statute that the legislature enacted, and 

undisputed material facts, I conclude that the apartment 

building's garage where Duncan parked her car is not a 

"dwelling" within the meaning of § 425.206(2)(b). 

3. Wisconsin Stat. § 422.419(1)(a)

¶82 The majority opinion and the court of appeals brought 

Wis. Stat. § 422.419 into this controversy. It provides: 

(1) No contract evidencing a consumer credit 

transaction may contain any provision by which:

(a) The merchant or other person acting on the 

merchant's behalf is given authority to enter the 

customer's dwelling or to commit any breach of the 

peace in the course of taking possession of collateral 

securing the transaction;

(b) The customer waives any right of action 

against the merchant, or other person acting on the 

merchant's behalf, for any breach of the peace or 

other illegal act committed in the course of taking 

possession of such collateral; or

(c) The customer executes a power of attorney or 

similar instrument appointing the merchant, or other 

person acting on the merchant's behalf, as the 

customer's agent in the taking of possession of such 

collateral.

§ 442.419(1).

¶83 It is undisputed that Wis. Stat. § 422.419 has 

absolutely no relevance to the contract by which Duncan 

purchased the vehicle. All parties agree that the consumer 

credit sales contract Duncan entered into was lawful in all 

respects. 
No. 2019AP1365.pdr

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¶84 Then why did the court of appeals and the majority 

opinion bring Wis. Stat. § 422.419(1)(a) into their decision 

making? It appears that they did so for two reasons: First, to 

avoid a plain-meaning statutory interpretation analysis, which 

we have directed be employed in countless decisions since Kalal

was issued in 2004; and second, to insert Wis. Admin. Code 

§ DFI-WCA 1.392 into their discussions of "dwelling" and reach a 

result that would not occur if they had undertaken a plain 

meaning analysis of Wis. Stat. § 425.206(2)(b). 

¶85 As I have explained above, a plain meaning analysis of 

Wis. Stat. § 425.206(2)(b) unambiguously demonstrates that 

"dwelling" is restricted by the use to which Duncan put the 

apartment building's garage. She never resided or lived there. 

Furthermore, a common meaning of dwelling is a place where one 

sleeps and from which one can exclude all others. The 

undisputed testimony shows that the apartment building's garage 

does not meet the restrictive statutory structure of 

§ 425.206(2)(b) nor does it meet common definitions of 

"dwelling." 

¶86 Let's look at Wis. Admin. Code § DFI-WCA 1.392. It 

provides, "For the purposes of s. 422.419(1)(a), Stats., the 

term 'dwelling' shall include, any garage, shed, barn or other 

building on the premises whether attached or unattached." 

(Emphasis added.) Note that, in addition to expressly limiting 

the rule's application to Wis. Stat. § 422.419(1)(a), "dwelling" 

within Wis. Admin. Code § DFI-WCA 1.392 is not restricted by the 

manner in which a customer uses it, as "dwelling" is by the 
No. 2019AP1365.pdr

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structure of Wis. Stat. § 425.206(2)(b). Stated otherwise, 

Duncan would not have to live or reside in the shed or barn to 

cause it to be a "dwelling" within Wis. Admin. Code § DFI-WCA 

1.392. 

¶87 The court of appeals' decision23 avoids a plain-meaning 

interpretation of Wis. Stat. § 425.206(2)(b) to seek a different 

result than a plain-meaning interpretation will permit. The 

majority opinion's use of Wis. Admin. Code § DFI-WCA 1.392 is 

less direct than that of the court of appeals, but nevertheless 

it employs Wis. Admin. Code § DFI-WCA 1.392 to support its 

analysis.24 Furthermore, the majority opinion's hodgepodge of 

definitions totally ignores the structure of § 425.206(2)(b) 

which limits "dwelling" according to how the customer uses that 

space. Again, it appears the majority opinion did so to avoid 

the plain meaning of § 425.206(2)(b) and to obtain a result that 

the plain meaning of the words the legislature enacted will not 

permit. 

¶88 Our directives on statutory interpretation assist 

judges in keeping their personal policy preferences out of their 

decisions. They provide certainty in the law based on the words 

the legislature chose to enact. When courts avoid our 

directives, they take away those protections and replace them 

with personal policy preferences that then drive decisions that 

follow. 

 

23 Duncan, 393 Wis. 2d 814, ¶¶27, 28.

24 Majority op., ¶¶14-16.
No. 2019AP1365.pdr

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III. CONCLUSION

¶89 The court of appeals defined "dwelling," as employed 

in Wis. Stat. § 425.206(2)(b), by choosing an administrative 

rule definition that by the definition's explicit terms applies 

only to Wis. Stat. § 422.419(1)(a). In so doing, the court of 

appeals avoided a plain-meaning analysis of § 425.206(2)(b) and 

the rules of statutory interpretation that we have repeated and 

repeated in countless cases since 2004.

¶90 The majority opinion follows the errant lead of the 

court of appeals.25 Instead of interpreting "dwelling" within 

the structure of the statute in which it appears, e.g., "used by 

the customer as a residence," and instead of relying on Duncan's 

own statements that she never lived or resided in the apartment 

building's garage, the majority opinion ignores a plain-meaning 

analysis of Wis. Stat. § 425.206(2)(b). Rather, it patches 

together a hodgepodge of theories in order to affirm the court 

of appeals. Because I conclude that the plain meaning of 

§ 425.206(2)(b) does not apply to the apartment building's 

garage, which Duncan shared with many others and has said in two 

court proceedings that she has never lived or resided in, I 

would reverse the court of appeals and affirm the summary 

judgment granted by the circuit court. Therefore, I 

respectfully dissent from the majority opinion.

¶91 I am authorized to state that Chief Justice ANNETTE 

KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this 

dissent.

 

25 Majority op., ¶¶14-16.
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