Wisconsin Statutes & Annotations
Chapter 846 - Real estate foreclosure.
846.16 - Notice of sale; sale; confirmation; transfer.

846.16 Notice of sale; sale; confirmation; transfer.
(1) Notice of sale.
(a) Notice of in-person sale. Except as provided in par. (bm), the sheriff or referee who makes sale of mortgaged premises, under a judgment therefor, shall give notice of the time and place of sale as provided under s. 815.31 or in such other manner as the court shall in the judgment direct. The sheriff or referee shall include in the notice of sale the street address, if any, of the real estate to be sold and the sum of the judgment.
(bm) Notice of Internet-based sale. If a sale is conducted under sub. (1g) (b), the sheriff or referee who makes sale of mortgaged premises shall give notice of the time and place of sale as provided under par. (a), except as follows:
1. Section 815.31 (1) does not apply to the sale. The sheriff or referee shall publicly advertise the time and place of holding the sale by posting, at least 3 weeks prior to the date of the sale, a written notice describing the mortgaged premises to be sold with reasonable certainty in one public place in the city, village, or town where the mortgaged premises are located and, if the county where the mortgaged premises are located maintains an Internet site, on that Internet site. If the city, village, or town where the mortgaged premises are located maintains an Internet site, the city, village, or town may post the notice on that Internet site.
2. The notice also shall include all of the following information:
a. A statement that the sale will be conducted using an Internet-based auction.
b. The address of the Internet site where the Internet-based auction will be conducted.
c. The time period during which bids for the mortgaged premises may be submitted.
d. Instructions on how the general public may observe the Internet-based auction and on how a person may participate in the auction, including any prerequisites to participation that may apply, or the address of an Internet site where those instructions are posted.
e. A description of the terms of sale that apply to the Internet-based auction, including a description of any lien or other encumbrance on the mortgaged premises that has priority over the mortgage that is the subject of the foreclosure action.
(cm) Notice to department of veterans affairs. In addition to providing notice of sale under par. (a) or (bm), if the department of veterans affairs is a party in the foreclosure action, the judgment shall direct that notice of sale be given by registered mail, return receipt requested, to the department at Madison, Wisconsin, at least 3 weeks prior to the date of sale.
(d) In any public place or on any Internet site where the sheriff or referee posts a notice of sale, the sheriff or referee also shall post an explanation regarding the minimum bidder qualifications under s. 846.155 (2) that a participant in the sale must meet and a statement that, before the sale may be confirmed, a purchaser that is not a party in the foreclosure action must submit an affidavit to the court affirming that the purchaser meets those minimum bidder qualifications.
(1g) Sale of mortgaged premises.
(a) Payment of purchase price and costs of sale; deposit or down payment.
1. Except as provided under subd. 2. and this subdivision, the sheriff or referee may not accept less than $100 as a deposit or down payment from the purchaser at a sale of mortgaged premises. The sheriff or referee shall deliver the amount of the deposit or down payment to the clerk of court as provided in sub. (1r) (b) 2. b., and the purchaser shall pay the balance of the purchase price to the clerk of court upon the confirmation of the sale as provided in sub. (2m) (b). If the highest bid is less than $100, the purchaser shall give the bid amount as a deposit or down payment, and the sheriff or referee shall deliver the entire amount to the clerk of court.
2. If the judgment creditor is the purchaser at a sale of mortgaged premises, the judgment creditor may give the judgment creditor's receipt to the sheriff or referee for any sum not exceeding the sum due to the judgment creditor. The judgment creditor's receipt is considered a down payment. If the judgment creditor is the purchaser and the sum due to the judgment creditor is less than the purchase price, the judgment creditor shall pay the difference to the sheriff or referee at the time of sale.
3. In all cases, the purchaser at the sale of the mortgaged premises shall pay the cost of sale.
(b) Internet-based sale.
1. A county may enact an ordinance that requires the sheriff or referee to conduct, or to engage an auctioneer registered under ch. 480 to conduct, sales of mortgaged premises in the county using an Internet-based auction. If a county enacts such an ordinance, all sales of mortgaged premises in the county shall be conducted using Internet-based auctions.
2. If a sale is conducted using an Internet-based auction, the person conducting the sale may accept payment of any amounts under par. (a) by credit card, debit card, or other electronic payment method and may charge a surcharge to the payer to recover charges associated with accepting the electronic payment.
3. If a sale is conducted using an Internet-based auction, the person conducting the sale shall, on the Internet site on which the Internet-based auction is conducted, provide any potential bidder with a conspicuous statement identifying any lien or other encumbrance described in the notice under sub. (1) (bm) 2. e.
(1r) Procedures after sale.
(a) Execution of deed. After a sale of mortgaged premises under sub. (1g) and upon compliance with the terms of the sale, the sheriff or referee shall make and execute to the purchaser, the purchaser's assigns, or personal representatives a deed of the mortgaged premises sold that sets forth each parcel of land sold to the purchaser and the purchase price paid for each parcel.
(b) Deductions from proceeds; transmittals to clerk of court. No later than 10 days after a sale of mortgaged premises under sub. (1g), the sheriff or referee shall do all of the following:
1. File a report of the sale with the clerk of court.
2. Deliver to the clerk of court all of the following:
a. The deed to the mortgaged premises executed under par. (a).
b. After deducting the costs and expenses of the sale, unless the court orders otherwise, the proceeds of the sale ordered by the court.
(c) Deed held until confirmation. The clerk of court shall hold a deed delivered to the clerk of court under par. (b) 2. a. until confirmation of the sale under sub. (2m).
(2m) Confirmation.
(a) Preparation of real estate transfer return. If the purchaser is not the judgment creditor, before the court may confirm the sale, the purchaser shall provide the judgment creditor with any information required for the judgment creditor to complete the real estate transfer return under s. 77.22.
(ae) Determination of fair value of mortgaged premises. If mortgaged premises sell for less than the amount due and to become due on the mortgage debt and costs of sale, there is no presumption that the mortgaged premises sold for their fair value, and the court may not confirm the sale or render a judgment for deficiency until the court is satisfied that the fair value of the mortgaged premises sold has been credited on the mortgage debt, interest, and costs.
(am) Payment of sale proceeds upon confirmation. Upon confirmation of a sale of mortgaged premises, the clerk of court shall pay to the parties entitled thereto, or to their attorneys, the proceeds of the sale.
(as) Effect of deed upon confirmation. Unless the deed is destroyed as provided in sub. (4) (a), upon confirmation of a sale of mortgaged premises, the deed executed under sub. (1r) (a) shall vest in the purchaser, the purchaser's assigns, or personal representatives all the right, title, and interest of the mortgagor, the mortgagor's heirs, personal representatives, and assigns in and to the premises sold and is a bar to all claim, right of equity of redemption therein, of and against the parties to the action, their heirs, personal representatives, and all persons claiming under them subsequent to the filing of the notice of the pendency of the action in which such judgment was rendered; and the purchaser, the purchaser's heirs, or assigns shall be let into the possession of the premises so sold on production of the deed or a duly certified copy of the deed, and the court may, if necessary, issue a writ of assistance to deliver that possession.
(b) Payments by purchaser. No later than 10 days after the court confirms the sale, the purchaser shall pay to the court all of the following:
1. The amount of the transfer fee under s. 77.22, if any.
2. The amount of the fee under s. 59.43 (2) to record all of the following:
a. The deed to the mortgaged premises delivered under sub. (1r) (b) 2. a.
b. Any other document required for the register of deeds to record the deed.
3. Any part of the purchase price remaining to be paid.
(c) Delivery of real estate transfer return receipt. No later than 10 days after the court confirms the sale, the judgment creditor shall provide to the court the receipt for submitting a transfer return under s. 77.22.
(3m) Transmittal to register of deeds. Upon the court confirming a sale of mortgaged premises and upon compliance by the purchaser with the terms of the sale and the payment of any balance of the sale price to be paid, unless otherwise ordered by the court, the clerk of court shall do one of the following to transmit the deed to the mortgaged premises received under sub. (1r) (b) 2. a. to the register of deeds for recording:
(am) Deliver the deed to the mortgaged premises received under sub. (1r) (b) 2. a., the receipt for submitting a transfer return under s. 77.22, the amount due under s. 59.43 (2) to record the deed and any other document required to record the deed, and the transfer fee, if any, to the register of deeds.
(bm) Notify the register of deeds that the deed to the mortgaged premises received under sub. (1r) (b) 2. a., the receipt for submitting a transfer return under s. 77.22, the amount due under s. 59.43 (2) to record the deed and any other document required to record the deed, and the transfer fee, if any, are available in the clerk's office. If a register of deeds is notified under this paragraph, the register of deeds shall retrieve the documents and fees from the clerk of courts within a reasonable period of time.
(4) No confirmation of sale; effect of failure to comply with confirmation requirements; resale.
(a) If any of the requirements under sub. (2m) (a) and (b) are not satisfied and the purchaser is not the judgment creditor, the court shall order the purchaser to forfeit the amount of the purchaser's deposit or down payment delivered to the clerk of court under sub. (1r) (b) 2. b., and the clerk of court shall pay that amount to the parties that would be entitled to the proceeds of the sale as ordered by the court. The court shall also order that the mortgaged premises be resold. The clerk of court shall destroy the deed executed to the defaulting purchaser under sub. (1r) (a), and that deed is of no effect.
(b) If any of the requirements under sub. (2m) (b) and (c) are not satisfied and the purchaser is the judgment creditor, the court may order the purchaser to forfeit the greater of the purchaser's deposit or $500 and order the purchaser to comply with sub. (2m) (b) and (c) so that the mortgaged property may be sold to the purchaser.
(c) If the court does not confirm a sale of mortgaged premises for a reason other than a failure to satisfy a requirement under sub. (2m) (a), (b), or (c), the clerk of court shall return the deposit or down payment delivered to the clerk of court under sub. (1r) (b) 2. b. to the purchaser, and the court shall order the mortgaged premises to be resold. The clerk of court shall destroy the deed received under sub. (1r) (b) 2. a., and that deed is of no effect.
History: 1973 c. 189 s. 7; Stats. 1973 s. 816.16; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.16; 1989 a. 31; 1993 a. 486; 2015 a. 60; 2017 a. 104 ss. 10 to 20, 22 to 26; 2017 a. 208 ss. 10 to 34, 36; 2017 a. 339; 2017 a. 364 s. 49; 2021 a. 238 s. 45.
The trial court should determine “fair value" under s. 846.165 (2) [now s. 846.16 (2m) (ae)] even though the bid does not shock the court's conscience. First Wisconsin National Bank of Oshkosh v. KSW Inv. 71 Wis. 2d 359, 238 N.W.2d 123 (1976).
The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings and Loan Asso. v. Barkwood Landscaping Co., Inc. 93 Wis. 2d 190, 286 N.W.2d 581 (1980).
An appeal from an order confirming sale does not enable the appellant to challenge a judgment of foreclosure. Shuput v. Lauer, 109 Wis. 2d 164, 325 N.W.2d 321 (1982).
There is no statutory requirement that sale proceeds be applied first to the portion of the debt that is guaranteed. Crown Life Ins. Co. v. LaBonte, 111 Wis. 2d 26, 330 N.W.2d 201 (1983).
“Fair value" under s. 846.165 (2) [now s. 846.16 (2m) (ae)] is determined by the property's sale value. The court may consider costs of selling, holding, or carrying the property only to the extent that they affect the sale value. First Financial Savings Assoc. v. Spranger, 156 Wis. 2d 440, 456 N.W.2d 897 (Ct. App. 1990).
That the balance of the purchase price be paid within 10 days of confirmation of sale or be forfeited is mandatory and is not waivable by the court as a matter of equity. The purchaser has a right to notice of when the sale has been confirmed, when the mortgagor's redemption period ends, and when the 10-day payment period expires. GMAC Mortgage Corp. v. Gisvold, 215 Wis. 2d 459, 572 N.W.2d 466 (1998), 96-1663.
Because s. 703.10 (6) prohibits condominium bylaws from affecting the transfer of title to a condominium unit, a bylaw prohibiting the sale of any unit to an owner who would not reside in the unit could not be applied to prevent the confirmation of a foreclosure sale to the high bidder who admitted he would not occupy the premises. Also, the potential failure to occupy the unit had no recognized legal relationship to the confirmation of the sheriff's sale and the transfer of title. Bankers Trust Company of California, N.A. v. Bregant, 2003 WI App 86, 261 Wis. 2d 855, 661 N.W.2d 498, 02-2085.
Under s. 846.165 (2) [now s. 846.16 (2m) (ae)], when a creditor seeks a deficiency judgment, there is no presumption that the property sold for fair value. From that, it follows that when the mortgagee does not seek a deficiency judgment, there is a presumption. The statute does not eliminate the requirement that the court find fair value. A tax assessment, like an appraisal, can be viewed as a measure of fair value. Each case must be considered on its merits. Bank of New York v. Mills, 2004 WI App 60, 270 Wis. 2d 790, 678 N.W.2d 332, 03-1339.
This section does not clarify when the 10-day period for paying the remaining purchase price begins to run after a case is remitted following an appeal. When the appeals process interrupts a purchaser's ability to pay the remaining balance of the purchase price, the purchaser is entitled, upon remand, to notice from the circuit court as to when the 10-day period begins to run. First Banking Center v. Twelfth Street Investors LLC, 2011 WI App 103, 336 Wis. 2d 150, 805 N.W.2d 381, 10-0646.
Section 846.165 (2) [now sub. (2m) (ae)] does not apply to a credit toward a judgment on a guaranty. Rather, the provision applies to the relationship between only the mortgagee and mortgagor that signed the promissory note underlying the mortgage. Therefore, that provision cannot be read as requiring a circuit court to determine the amount of a credit to be applied to a judgment on a guaranty when confirming a foreclosure sale. Horizon Bank, National Association v. Marshalls Point Retreat LLC, 2018 WI 19, 380 Wis. 2d 60, 908 N.W.2d 797, 16-0832.
When an action for foreclosure against a mortgagor and an action for a money judgment on a guaranty are brought in the same proceeding, the circuit court may, in its discretion, decide the separate questions of fair value for purposes of s. 846.165 (2) [now sub. (2m) (ae)] and the amount of any credit toward the judgment on the guaranty either at the same time or separately. Horizon Bank, National Association v. Marshalls Point Retreat LLC, 2018 WI 19, 380 Wis. 2d 60, 908 N.W.2d 797, 16-0832.