Real Estate Overview
Our firm provides legal counsel to banks, savings institutions and mortgage bankers in all facets of mortgage lending and servicing. The firm is rated "A-V" by Martindale-Hubbell, signifying the highest levels of competence and integrity.
For specific questions related to an existing case, please call the Wisconsin Information Line, (414)-224-1987.
"Mortgages" are the documents normally used to secure real estate loans in Wisconsin. In the event of a default, a judicial foreclosure action must be commenced. Action is started by filing a Summons & Complaint together with a Lis Pendens. Personal service of process should be given; if not, a copy of the summons & complaint must be mailed to the defendant's last known address, and the Summons must be published weekly for three consecutive weeks. The Lis Pendens, or notice of pending action, must be recorded with the local register of deeds at least 20 days before entry of judgment.
The foreclosure generally proceeds to judgment either by default (Non-contested after expiration of 20 days following service of Summons) or by summary judgment (if an answer or defense has been filed by the homeowner). The judgment will include the amount due the mortgagee, including costs, escrow advances and attorneys fees, and will set a redemption period. Foreclosure sales are conducted by county Sheriff after expiration of the redemption period. If the property is less than 20 acres and is owner occupied, the redemption period is 12 months, which can be reduced to 6 months if deficiency judgment is waived and if the loan documents permit. The redemption period may be further reduced to 3 months if the property is tenant occupied and 2 months if the property is vacant and abandoned. Notice of the sheriff's sale must be published each week for six consecutive weeks. Upon conclusion of the Sheriff's sale, an order judicially confirming the sale must be sought whereupon the Sheriff's deed to the highest bidder may be recorded. The order confirming sale also may include a provision entitling the foreclosing mortgagee to obtain a writ of assistance (or eviction) for the property.
Wisconsin has two federal district courts having jurisdiction over bankruptcy cases. The Eastern District is headquartered in Milwaukee, while the Western District sits in Madison. The Western District also has a bankruptcy court in Eau Claire which serves the northern portion of the Western District.
In Chapter 7 bankruptcy cases, at least one delinquent payment is usually considered adequate grounds for a motion for relief.
In Chapter 13 cases, the general rule is that post-petition monthly mortgage payments must be delinquent at least three months before a motion for relief can be pursued. These general rules are subject to change if there are other compelling factors presented by a particular case.
In a Chapter 7 case, the bankruptcy stay is terminated with respect to the debtor's interest in the property when a motion for relief has been granted or a bankruptcy discharge has been issued. The stay is terminated with respect to the bankruptcy estate's interest in the property when an abandonment has occurred (either voluntarily by the trustee or involuntarily by an order granting a motion for abandonment) or the bankruptcy case is closed. In the Western District of Wisconsin, the general rule is that the filing of a No Asset Report by the Trustee is tantamount to abandonment. In a Chapter 13 case, a discharge will end the automatic stay and foreclosure may immediately proceed.
Preliminary hearings before the bankruptcy courts in Wisconsin are based upon oral argument of counsel. If a final hearing is required by the court, a witness from the foreclosing lender will be needed unless the parties can stipulate to certain facts. Affidavits are generally inadmissible because they are not subject to cross-examination.
Cram-downs are permitted in Wisconsin in Chapter 11 bankruptcy cases and in limited circumstances in Chapter 13 cases.
Foreclosure / Real Estate Settlement and Liquidation Services
Gray & Associates, L.L.P. is Wisconsin's foremost mortgage foreclosure law firm. The firm is rated "A-V" by Martindale-Hubbel, signifying the highest levels of competence and integrity. In addition to foreclosure, bankruptcy, compliance, litigation and related matters, Gray & Associates, L.L.P. also offers its lender clients real estate settlement and liquidation services for their properties acquired during the foreclosure process.
Further information regarding the firm's real estate settlement and liquidating services may be had by contacting
Duncan C. Delhey, Managing Partner of the firm's Creditors' Rights Division.
Description of Services
- Review REO referral, including sale contracts
- Placement or review of REO title order
- Review of "Offer to Purchase" contracts and counter-offers
- Draft and transmit Special Warranty Deeds and Wisconsin Real Estate Transfer Returns
- Draft and revise HUD-1 Settlement Statements, draft necessary Affidavits for title insurance policies
- Coordinate and schedule closings
- Telephone conferences with purchasers, realtors and liquidating lenders
- Telephone conferences with property tax assessors and treasurers
- Review status of water and sewer bills, arrange for wire transfer of sale funds and attendance at closings throughout the state
In response to an increased incidence of cases in which a lender's collateral consists of a manufactured or mobile home, Gray & Associates, L.L.P. has developed a process to efficiently handle mobile home foreclosures (mobile home and land) and replevin actions (mobile home only).
Description of Services
- Evaluation of manufactured/mobile home as a permanent improvement to real estate (foreclosure required) or as personal property (replevin action required)
- Contact with the Wisconsin Department of Commerce to resolve outstanding manufactured/mobile home title issues, including cancellation of prior title certificates and the removal of prior liens
- Obtain insurable title to the manufactured/mobile home and real estate in the lender's name at conclusion of the case
When referring a case that includes a manufactured/mobile home, it is important that a lender provide as much information as possible about the manufactured/mobile home. The sooner our office is aware that the improvement is a manufactured/mobile home, the sooner we can take steps to ensure that the reacquisition is completed properly.
A manufactured/mobile home in Wisconsin is classified as either a permanent part of the real estate or as personal property. If it is real estate, a foreclosure is required. If the mobile home is categorized as personal property, a replevin action is required. Gray & Associates, L.L.P. can efficiently resolve either matter.
Foreclosing a Manufactured/Mobile Home
If a manufactured/mobile home has become a permanent improvement to the land, it will be taxed as "real estate." Important factors are whether the mobile home has been attached to a permanent foundation, the axles have been removed and the home is connected to local utilities such as water, sewer and electrical. In these cases, our office files a two-count foreclosure action. First, we foreclose the mortgage on both land and buildings. Secondly, we move the Court for a judgment finding that the manufactured/mobile home is "part and parcel" of the foreclosed property, is permanently affixed to the land and is to be sold as part of the Sheriff's Sale and Deed procedures.
Sometimes a lender holds a security interest in the manufactured/mobile home. This interest will consist of a consensual lien given by the borrower and perfected by the lender filing a lien against the manufactured/mobile home Certificate of Title with the Wisconsin Department of Commerce. The lender's interest is usually a purchase money interest. A replevin action allows a lender the right to repossession of the collateral. In Wisconsin, a replevin action is a judicial process and requires the filing and service of a Summons and Complaint. The Court will enter a "replevin" judgment in favor of the lender against the borrower and the collateral. We also seek a Writ of Assistance to allow for eviction of the tenant(s) and disposition of remaining personal property. Generally, a payoff statement, copy of the Security Agreement including a specific description of the collateral, the note and a copy of the demand/acceleration letter is required to commence a manufactured/mobile home replevin. Once the judgment is entered, we have the Order for Writ of Assistance (eviction) and Writ of Replevin issued. We also obtain a new Certificate of Title issued in the foreclosing lender's name.