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Real Estate OverviewOur 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. Foreclosure Practice
"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. Generally speaking, court appearances by a foreclosing lenders personnel are seldom required. The courts are usually satisfied with affidavits of default, affidavits of indebtedness, etc. The firm has developed a unique and efficient method for prosecuting Wisconsin foreclosure cases. If the client desires, the action may be immediately commenced while the title report is in process. This allows expedited personal service of process, entry of Judgment, and commencement of the redemption period. When the title report is received, any subordinate lien holders are identified and joined through an amended Summons & Complaint during the redemption period pursuant to Section 846.09, Wisconsin Statutes. We additionally utilize a procedure during the sale confirmation process whereby owner- occupants are served with a notice of the confirmation hearing and an Order for a Writ of Assistance is obtained, thus avoiding the need for a separate and lengthy eviction action. Upon receipt of any Answer or letter response to the Complaint, the file is referred to the supervising attorney for review. If appropriate, a Motion for Summary Judgment is calendared, the affidavit in support of Summary Judgment prepared and the motion filed. This expedites resolution of contested matters. The firm has had a quality control program in place to ensure proper file management for a number of years. This consists of a regular review of files and their status to verify timeliness and accuracy. Supervisors and responsible attorneys conduct and oversee this process. Bankruptcy PracticeWisconsin 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. Jay J. Pitner of our firm is a board-certified consumer bankruptcy specialist and would be available to discuss any particular inquiries which you may have regarding local bankruptcy procedures or practices Eviction SynopsisEviction ProcessUpon receipt of an eviction referral, Gray & Associates, L.L.P. will prepare a writ for removal of the occupants. The writ is forwarded to the Clerk of Court in the county in which the subject property is located. The Clerk signs the writ and forwards it to the Sheriff for service. The Sheriff serves the writ approximately 3-5 days later. The sheriff will give the occupants between 24 hours and one week to move out. If the property is not voluntarily vacated, the Sheriff will schedule a “lockout,” or forcible eviction of the occupants. The occupants are not given further notice of the lockout; rather, the Sheriff, moving company, and lender’s representative make arrangements to meet at the property on the appointed day and time. At that time, the occupants and their personal belongings are removed from the property and the lender, through their representative, may then take possession of the subject property. This usually includes changing the locks so that the former owners may not regain possession of the property after the Sheriff has left. In rare instances, it will be determined that a separate eviction hearing is necessary before the Sheriff may serve this writ. This usually happens in cases in which the lender was unaware that the property was tenant-occupied. If this happens, an eviction hearing must be scheduled with the Court. The tenants are served with notice of the date and time of the hearing, and they may attend the hearing and apply to the Court for additional time to move. The eviction may proceed as outlined above when the Court signs an Order for “Writ of Assistance” that specifically names the occupants that the lender is seeking to remove. Eviction Timeframes
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