Wis. Stat. § 425.104

Current through Acts 2023-2024, ch. 272

Section 425.104 - Notice of customer's right to cure default

(1) A merchant who believes that a customer is in default may give the customer written notice of the alleged default and, if applicable, of the customer's right to cure any such default (s. 425.105).

(2) Any notice given under this section shall contain the name, address and telephone number of the creditor, a brief identification of the consumer credit transaction, a statement of the nature of the alleged default and a clear statement of the total payment, including an itemization of any delinquency charges, or other performance necessary to cure the alleged default, the exact date by which the amount must be paid or performance tendered and the name, address and telephone number of the person to whom any payment must be made, if other than the creditor.

Wis. Stat. § 425.104

1971 c. 239.

Notice need not be given if the obligation is entirely past due and fully owed, making it impossible for the customer to restore the loan to current status. Rosendale State Bank v. Schultz, 123 Wis. 2d 195, 365 N.W.2d 911 (Ct. App. 1985). The s. 425.105(1) prohibition of suits except when notice is given pursuant to s. 425.104 imposes timing and content requirements for the notice. A notice that did not meet the timing requirements of ss. 425.103(2) (a) and 425.104(1) never gave notice "pursuant to s. 425.104." Thus suit was barred by s. 425.105(1). Indianhead Motors v. Brooks, 2006 WI App 266, 297 Wis. 2d 821, 726 N.W.2d 352, 06-1002. Courts construe sub. (2) strictly, so even minor defects or omissions are enough to render a notice of right to cure invalid. Bahena v. Jefferson Capital Systems, LLC, 363 F. Supp. 3d 914 (2019). Billing statements are not sufficient to give notice of a right to cure to an unsophisticated consumer, so they cannot qualify as right-to-cure notices under sub. (2). Bahena v. Jefferson Capital Systems, LLC, 363 F. Supp. 3d 914 (2019). This section establishes requirements regarding what information a right-to-cure notice must contain, and it is permissive in the sense that it does not obligate merchants to send such notices whenever a customer defaults. But s. 425.105 lays out the requirements for merchants who wish to sue on a default, and s. 425.105(1) makes providing notice a mandatory prerequisite to suit. Bahena v. Jefferson Capital Systems, LLC, 363 F. Supp. 3d 914 (2019). See also Boerner v. LVNV Funding LLC, 358 F. Supp. 3d 767 (2019).