COURT OF APPEALS DECISION DATED AND FILED March 3, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Chase Home Finance, LLC appeals an order distributing a deposit made following a sheriff’s sale of foreclosed property.[1] Chase argues it was entitled to a forfeiture of the entire deposit pursuant to Wis. Stat. § 846.17. We disagree and affirm the order.
BACKGROUND
¶2 Chase foreclosed on a property that was then sold at a sheriff’s sale. Richard Pearson outbid Chase with a $265,000 offer. The notice of foreclosure sale required the buyer to pay ten percent of the successful bid to the sheriff, with the remaining balance to be paid no later than ten days after the court’s confirmation of sale, or the deposit would be forfeited. The notice further stated the property was being sold as-is.
¶3 At the confirmation of sale hearing, Pearson asked the court to not confirm the sale, order a resale, and refund the entire deposit, because he had discovered problems with the property after the sale. Pearson’s counsel asserted the home was poorly constructed and severely damaged. Among other things, he claimed there was an unprotected, two-foot-square opening in one of the exterior walls where an air conditioner had been removed. He also surmised the home “quite possibly could be a complete knockdown.” Finally, he argued the court should use its equitable powers to reject the sale, because Pearson estimated the property’s value at $140,000.
¶4 Chase responded that the sale was an as-is purchase, sight unseen. It argued Pearson therefore bore the risk of purchasing at a sheriff’s sale, and the cost of cancelling a sale was forfeiture of the deposit if the buyer did not pay the purchase price within ten days of confirmation, pursuant to Wis. Stat. § 846.17.
¶5 The court stated it could not decide the issue at that time and would order the deposit held with the clerk of court’s office pending further order. The following exchange then took place:
THE COURT: … I do order a resale since the bidder has declined to buy. And so I think no matter what we have to resell the property. Do you agree [Chase’s counsel]?
[CHASE’S COUNSEL]: Uh-huh, I do, your honor.
THE COURT: So I’m going to order resale, and the status of the $26,500 is up in the air.
The court then ordered the parties to submit written briefs, which they did.
¶6 The court subsequently signed an order stating the sheriff’s sale “is not confirmed and is vacated and the subject property may again be sold.”[2] Chase then moved for further proceedings, seeking clarification of the court’s findings at the confirmation hearing. The court responded with a note stating “the property is to be re-sold ASAP” and it would equitably determine the deposit’s distribution after the resale. At the resale confirmation hearing, the court awarded ten percent of the deposit to Chase in consideration of its resale costs and ordered a refund of the remainder of Pearson’s deposit. It is from this order to return the deposit that Chase appeals.
DISCUSSION
¶7 Chase contends the circuit court erroneously exercised its discretion in not confirming the first sheriff’s sale, not determining the fate of the deposit until after the second sale, and returning ninety percent of the deposit.[3] We agree with Pearson, however, that Chase waived the first two arguments.
¶8 Chase failed to press its argument for confirmation of the
sale at the first hearing. Instead, when
the court suggested a resale was necessary, Chase merely acquiesced and agreed
to a resale and to brief the deposit issue. Chase’s agreement to a resale necessarily
meant the court would not confirm the sale. We will not review invited error. Shawn B.N. v. State, 173
¶9 Additionally, Chase did not object to the failure to confirm
the sale, either at the hearing or after the court issued its order vacating
the sale. Nor did Chase request a confirmation
of sale in its brief in support of its motion for further proceedings. Further, when the court responded with its
note ordering a resale “ASAP,” Chase did not object to the court’s decision to
address the deposit issue after the resale.
Instead, Chase waited until this appeal to raise these issues, after it
was dissatisfied with the court’s apportionment of the deposit at the subsequent
confirmation hearing. This court has
consistently held it will not consider issues raised for the first time on
appeal. Allen v. Allen, 78
¶10 We next address Chase’s argument that the circuit court erred by
not ordering forfeiture of Pearson’s entire deposit.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)(5).
[1] This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The order, dated April 7, also ordered briefing on the issue of apportioning the deposit, to be completed by March 31. The briefs had already been filed at the time of the order.
[3] Chase
actually uses the disfavored phrase “abuse of discretion.” The proper phraseology is “erroneous exercise
of discretion.” See City of