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COURT OF APPEALS DECISION DATED AND RELEASED JULY 16, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0807-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
FIRST FEDERAL SAVINGS
BANK LA
CROSSE—MADISON,
Plaintiff-Respondent,
v.
PATRICIA A.
VETTERKIND,
Defendant-Appellant,
TRACY L.
VETTERKIND,
Defendant.
APPEAL from a judgment
of the circuit court for Pierce County:
ROBERT W. WING, Judge. Affirmed
in part; reversed in part, and cause remanded with directions.
CANE, P.J. Patricia Vetterkind
appeals a small claims court judgment granting First Federal Savings Bank La
Crosse-Madison replevin of a car as well as interest on the amount due on the
car loan.[1] Vetterkind argues that because the bank's
action was one for recovery of collateral pursuant to § 425.205, Stats., the only relief the judgment
can afford is replevin. This court
agrees and, accordingly, remands the case to the small claims court with
directions that it enter an amended judgment for replevin only.
Patricia and Tracy
Vetterkind[2]
financed the purchase of a new car through the bank. After they failed to make certain payments, the bank served them
with a notice of right to cure the default pursuant to § 425.105, Stats.
When the Vetterkinds failed to cure the default, the bank filed a
complaint for replevin, seeking (1) a judgment of replevin; (2) the amounts due
for principal, interest, late charges and costs and disbursements; (3)
additional interest on the amount due; and (4) other relief.
Patricia filed a motion
to dismiss the action, arguing that because the complaint sought both replevin
and a deficiency judgment, it was not a proper proceeding under § 425.205,
Stats. The small claims court denied the motion, concluding the
complaint did not seek a money judgment.
The small claims court stated: "So
as far as I am concerned this action is solely for recovery of the collateral,
and that is the only relief sought and is the only relief the court can grant,
and therefore I believe that the motion to dismiss should be denied."
Patricia filed an
amended brief with the small claims court, stating that she did not object to
the court granting replevin, but renewing her objection to the proceedings if
the bank expected the small claims court to declare the balance due on the loan
and to offer any relief besides replevin and statutory costs. The bank moved for summary judgment. Patricia did not dispute her default or the
bank's entitlement to replevin. However,
she objected to the proposed judgment to the extent that it provided relief
beyond replevin. After the parties
argued the issue before the small claims court, it agreed with the bank's
reasoning and signed the proposed judgment.
Patricia now appeals.
Patricia raises two
issues on appeal: (1) whether the
bank's complaint sought relief beyond the recovery of collateral; and (2) if
not, whether a small claims court may determine the total amount owed and the
interest accruing thereon in a § 425.205, Stats., replevin action.
Patricia asks this court to reverse the judgment and remand the case to
the small claims court with instructions to dismiss the case, arguing the bank
improperly used the small claims procedure to seek a determination of the
balance due. Alternatively, she asks
this court to remand the case to the small claims court with directions to
modify the judgment by striking all determinations other than the bank's right
to replevin the car.
Since Patricia clearly
agreed at the small claims court to proceed with the replevin action after the
court denied her motion to dismiss, this court concludes Patricia waived the
right to argue on appeal that because the complaint improperly sought relief
besides replevin, the entire case should be dismissed. Accordingly, this court declines to consider
Patricia's first argument: that the
complaint seeks relief beyond replevin.
The remaining issue is
whether the judgment can provide the bank with any relief besides replevin
where the action was brought pursuant to § 425.205, Stats.
This case requires the interpretation of § 425.205, which presents a
question of law this court reviews without deference to the trial court. See Village of Shorewood v. Steinberg,
174 Wis.2d 191, 201, 496 N.W.2d 57, 61 (1993).
The purpose in interpreting a statute is to ascertain and give effect to
the legislature's intent. Id. If the language of the statute is clear and
unambiguous, this court gives the language its ordinary meaning and applies it
to the facts of the case. Id. A statute is ambiguous if reasonable people
could understand it in more than one way.
Id.
Section 425.205, Stats., provides in relevant part:
Action to recover collateral. (1)
Except as provided in s. 425.206, 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.
Those actions shall be conducted in accordance with ch. 799,
notwithstanding s. 799.01(1)(c) and the value of the collateral or leased goods
sought to be recovered, except that:
....
(e) Judgment in such action shall determine
only the right to possession of the collateral or leased goods, but such
judgment shall not bar any subsequent action for damages or deficiency to the
extent permitted by this subchapter.
(Emphasis added.)
The bank argues that
because § 425.205(3), Stats., requires
it to conform with the requirements of § 425.109, Stats., and therefore include in its complaint such
information as a specification of the facts constituting the alleged default
and an estimate of the dollar amount the creditor alleges it is entitled to
recover, the small claims court is logically supposed to make findings on those
issues. Thus, the bank argues, the
judgment is consistent with the statute and need not be amended. This court has no difficulty with the trial
court determining whether there is a default and the approximate amount of the
default. Here, the judgment, however,
goes beyond determining whether there is a default and the right to possession
of the car. It also awards the bank
interest on the amount due.
Although § 425.205(3),
Stats., requires that parties'
complaints conform with the requirements of § 425.109, Stats., the small claims court is not authorized to make
binding determinations as to amounts due or to order monetary relief. Instead, as Patricia notes, the small claims
court need only determine:
(1) whether there is a right to possession upon default; (2)
whether there is a default; and (3) whether Consumer Act procedures were
followed. Section 425.205, Stats., unambiguously directs the small
claims court to determine solely the right to possession of the
collateral. The unambiguous meaning of
§ 425.205(1)(e), Stats., is that
the judgment in an action for recovery of collateral cannot provide relief
other than replevin. Therefore, this
court concludes that the judgment, to the extent it affords relief besides
replevin, goes beyond the scope of § 425.205 and must be amended to comply with
the statute.
In summary, where an
action for recovery of collateral is brought pursuant to § 425.205, Stats., the judgment cannot order
relief other than replevin.
Accordingly, this court affirms in part, reverses in part and remands
the case to the small claims court with directions that the court modify the
judgment to reflect that the sole relief granted is replevin.[3]
By the Court.—Judgment
affirmed in part; reversed in part, and cause remanded with directions. No costs.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.