Wanezek, Jaekels, Daul & Babcock, S.C. Attorneys at Law — Founded 1908

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FORMING AN LLC IN WISCONSIN

Many people starting a new business will choose to form an Limited Liability Company (LLC) because it offers protection of one’s personal assets while allowing flow through taxation to the individual members.  If you are looking to start a new business as an LLC, there are several things that you should consider. 

 LLC’s are governed by Chapter 183 of the Wisconsin Statutes.  In order to form an LLC, an Articles of Organization must be filed with the Department of Financial Institutions.  The Articles of Organization must contain the name of the LLC, the registered agent and registered office address, the type of management of the LLC, the name of the organizer, a signature of the organizer, the contact information of the person who filed the LLC, and payment by credit card of $130.00, which is non-refundable.  The name of the LLC must be unique in that it is not the same name as an existing corporation, LLC or other legal entity.  The registered agent is the person who is designated to receive service of process or other communications on behalf of the LLC and the registered office is the business office of the registered agent.  The type of management of the LLC can be vested in either member(s) or manager(s).  The name of the organizer is the person who signs and delivers the Articles of Organization to the Department of Financial Institutions for filing.

In addition to the Articles of Organization, an LLC should have an Operating Agreement between the members.  The Operating Agreement between the members governs the LLC’s business and the member’s financial and managerial rights and duties. 

If you are looking to form a new business contact us now. 

RIGHT OF REDEMPTION IN FORECLOSURE ACTION

A foreclosing party can reduce a mortgagors’ right to redeem property from twelve months to six months if the foreclosing party waives the right to receive a deficiency judgment. When two mortgages exist, foreclosing on one mortgage and seeking money on the other mortgage will not impact the foreclosing party’s right to a six month redemption period.

 This is what the Wisconsin Court of Appeals, District III, held in Harbor Credit Union v. Samp, 2010AP974(Feb. 17, 2011). In that case, Harbor Credit Union held two mortgages on the same property. The first mortgage was the result of a loan in the approximate amount of $275,000.00. The second mortgage was the result of a loan in the approximate amount of $125,000.00. The mortgagor defaulted on his obligations on the loans and in March 2009 Harbor Credit Union brought a foreclosure action on the first mortgage. Harbor Credit Union elected to waive the right to receive a deficiency judgment on the first mortgage and the redemption period was shortened from twelve months to six months. In June 2009, the circuit court granted Harbor Credit Union a judgment of foreclosure, with a redemption period of six months and no deficiency judgment. The circuit court did not say anything about the second mortgage other than it was junior to the first mortgage.

In December 2009, Harbor Credit Union initiated a seperate action seeking a money judgment only on the second mortgage. Two weeks later, more than six months after the foreclosure judgment on the first mortgage was entered, a sheriff’s sale was conducted and Harbor Credit Union submitted the only bid on the property for $411,000.00 and thereafter moved the court for confirmation of the sale. Harbor Credit Union submitted that there was no deficiency on the first mortgage and the money judgment on the second mortgage would also be satisfied from the proceeds of the sale. The circuit court confirmed the sale but the mortgagor wished to redeem the property the same day by paying the sale amount. The court held open the mortgagors’ right to redeem until the end of that day and then confirmed the judgment.

The mortgagor did not redeem that same day but later filed a motion to vacate the order confirming the sale claiming that the money judgment that Harbor Credit Union received on the second mortgage amounted to a deficiency judgment and therefore Harbor Credit Union was not allowed a six month redemption period. The cicuit court denied the mortgagors’ motion and he appealed. The Court of Appeals affirmed by concluding that a money judgment obtained on a second mortgage does not amount to a deficiency judgment for purposes of the foreclosure action.

INSURANCE COMPANY VIOLATES DUTY TO CONDUCT A FAIR INVESTIGATION RESULTING IN PUNITIVE

In Woelfel v. Homestead Mutual Insurance, Docket: 2009AP002104 03-02-11, the Wisconsin Court of Appeals examined a case where it was alleged that an insurance company failed to properly investigate the case of a collapsing feed silo.  Neighbors heard a loud “boom” or “whoosh” when the feed silo collapsed.  An investigator for the farmers insurance company performed a cursory investigation and determined that the silo collapsed due to structural problems.  The court found that the investigation was so bad that it amounted to no investigation at all.  The investigator reach flatly unsupportable conclusions as to the cause of the collapse and quickly determined–conveniently– that the collapse was “not covered” under the policy.  A more diligent investigation would have determined that the collapse was due to an explosion and fire.  Evidence establishing an explosion caused the collapse was ignored by the insurance company.  The trial court found that the claim was covered and further as a punishment for the sham “investigation” it awarded punitive damages of $700,000 in addition to damages for loss of the silo.  The court found that the insurance company had gone into “pre-denial” mode before even visiting the site for inspection.  On appeal the court of appeal upheld the trial court ruling finding that the insurance company conducted its investigation in such a way as to prevent it from learning the true facts upon which the claim was based.

 Often times when an insurance claims for property damages arise the insurance company will retain and employ independant “experts” with substantial credentials.  However many times these experts do work exclusively for insurance companies and predictably often render opinions that result in a determination of “no coverage” under the applicable insurance policy.  You are entitled to retain your own independent expert to determine causation.  Our firm routinely deals with such cases.  Don’t let the insurance company white wash an investigation.  If you believe your claim is covered but the insurance company and its “expert” are telling you otherwise do not hesitate to call David or Warren at our office.

FRAUDULENT TRANSFERS VS. PRE-BANKRUPTCY PLANNING

A person who merely transfers non-exempt assets to exempt assets on the eve of a bankruptcy filing is not by itself proof of fraud which would necessitate a bar to that person’s bankruptcy discharge. Rather, extrinsic evidence is required in order to set aside a transfer as fraudulent. This is what the Bankruptcy Court in the Western District of Wisconsin, by Judge Thomas Utschig, held in one particular bankruptcy case, In re Bronk, No. 09-15224-7. In that case, the debtor took out a loan on his mortgage free home in the amount of $95,000.00 and used that money to fund several college savings plans for his grandchildren. In addition, the debtor converted a certificate of deposit in the amount of $42,000.00 to an annuity. By doing this, the debtor was transferring his non-exempt assets to exempt assets in attempt to protect them in the bankruptcy action. The bankruptcy trustee objected on the grounds that the transfers were attempts to defraud the debtor’s creditors. The Bankruptcy Court disagreed with the trustee and found that pre-bankruptcy planning does not bar a discharge of one’s debts absent some act extrinsic to conversion that indicates fraud. A person’s desire to protect one’s assets in a legitimate way by proper use of the available exemptions is simply not evidence of fraudulent intent.

Tags: bankruptcy

SLIP AND FALL CASE / PUBLIC SIDEWALKS

n Dezoma v. Cincinatti Ins. Co. 2009AP2939 (Feb 23, 2011) Dezoma claimed that where she slipped on a public sidewalk while exiting a private building, liability attached to the owner of the private building.  Dezoma indicated at her deposition that the sidewalk was the area of the injury.  The defendant moved for summary judgment arguing the private building owner was not liable for injuries sustained on a public sidewalk.  Though, in argument, Dezoma argued that a downspout attached to the private building created an artificial hazard upon which Dezoma tripped, the courts factual record did not indicate as much.  Further the court held that since the private property owner did not exercise exclusive dominion and control over the sidewalk that the safe place statute did not extend liability to the sidewalk.  Dezoma’s claims were dismissed on summary judgment. 

Slip and fall cases are notoriously difficult, especially in Wisconsin where snow and ice form hazard for 6 months out of the year.  Consult with Warren Wanezek or David Daul for an evaluation of your claim.

TAVERN OWNER LIABILITY EXTENDS TO PROPERTY IT DOES NOT OWN, BUT CONTROLS

In Flynn v. Audra’s Corp., 2010AP882 (Feb. 23, 2011), the Wisconsin Court of Appeals court ruled that a tavern owners duty of care extends to a parking lot maintained by the tavern, even if the tavern does not own the parking lot. The appeals court explained that ownership is not the sole basis of determining when a patron is considered “on the premises.” And further explained, “[A] tavern owner has a duty to protect patrons because the owner has superior knowledge of dangers that the place and character of the business may pose,” … “This rationale applies equally regardless of whether a patron’s injuries in a parking lot owned by the tavern or in an adjacent area that the tavern maintains and uses as a parking lot.” The appeals court clarified that “licensed premises” is synonymous with the term “business premises” in determining the reach of a tavern owner’s liability.

SUPREME COURT WON’T LET SLEEPING DOG LAY

This week the Wisconsin Supreme Court refused to foist an overly narrow interpretation of what a dog owner is within the meaning of Wisconsin Law. When a four year old child disturbed a sleeping dog, “Chase” bit the child. The dog was not the property owners dog, but the property owner was feeding, watering, and caring for the dog. The supreme court found that the property owner was the statutory owner of “Chase” because she exercised dominion over the dog, sheltered the dog, provided water, and was generally responsible for the dog’s well-being at the time the child was bitten. Dog bites are common feature in Wisconsin Personal Injury lawsuits. The law imposes strict liability upon the dog owner, or in this case the “dog sitter.”

NEW DECISION CALLS INTO QUESTION FORECLOSURES

A recent decision from Massachusetts’ highest court could impact courts across the country. It is the first state supreme court to rule that only the holder of a mortgage may foreclose on a property. The opinion invalidates foreclosure sales by two banks that had been assigned mortgages on the properties, and calls into question the validity of countless other foreclosures across the country. In the decision, Judge Ralph D. Gants wrote that the foreclosure sales in question were invalid because the banks failed to show that they held the mortgages at the time of foreclosure. “As a result,” he said, “they did not demonstrate that the foreclosure sales were valid to convey title to the subject properties.” The banks had claimed that “securitization documents” they submitted established valid assignments that made them the holders of the two mortgages before the notice of sale and the foreclosure sale. But the court disagreed. A “foreclosing entity must hold the mortgage at the time of the notice and sale” to establish authority to foreclose.”

100 YEAR OLD CUSTOM TRUMPS ACTUAL MONUMENT IN REAL ESTATE DISPUTE

In Boerst v. Opperman, 2011 WI 5 (Feb. 3, 2011), a unanimous Wisconsin Supreme Court – in an opinion written by Chief Justice Shirley Abrahamson decided that where property owners considered a road between thier respective properties the true boundary for over 100 years, that the road in effect, became the boundary. This was the case even though boundary markers indicated that the boundaries were different. The decision is interesting in that it shows the operation of laws can vary the explicit legal description recorded or reflected in boundary markers. You may have boundary disputes with your neighbors, or problems concerning easements. Often times where you think the boundary is, is different that what your neighbor thinks. Further a judge may disagree with both property owners. Our firm routinely assists our clients with boundary disputes, easements and judicial declaration of rights in real estate.

Tags: property law wisconsin supreme court boundary disputes

INDIVIDUALS AT RISK

In 2006, the Wisconsin legislature made changes in Wisconsin law to address abuse against elderly people and younger vulnerable adults. The focus has been on broadening the scope of the Individual-at-Risk restraining order statute, which would make it easier for a person to obtain such a restraining order.

There are many types of abuse against elderly and young vulnerable adults including physical abuse, sexual abuse, financial exploitation, neglect, emotional abuse, and psychological abuse. Abusers can be anyone including a spouse, parent, adult child, relative, primary caregiver, or a friend.

 In the past, the statute that allowed for restraining orders for individuals-at-risk was not effective in meeting the unique needs of those people who were at risk. The statute provided for a narrow definition of a vulnerable adult, required a specific relationship between the victim and abuser, was limited in scope as to the abusive behaviors that could be restrained, provided restrictions on who could petition for a restraining order, and the remedies available were not extensive.

The changes in the law have broadened the scope of those areas which had been the most restrictive. The definition of “vulnerable adult” has been expanded, the requirement of having a specific relationship between abuser and victim has been removed, the number of abusive behaviors have been increased, any person is now allowed to petition for a restraining order, and the remedies have expanded with the development of a true “no contact” order. For example, the type of abuse that a person can now seek protection for includes financial exploitation and emotional abuse. In addition, friends, relatives, and others can petition on behalf of the vulnerable adult, when it used to be that the vulnerable adult was only allowed to bring the petition.

The changes in the law have worked out for the best because a high percentage of the cases involving individuals-at-risk have involved relatives who file on behalf of the individual-at-risk. In addition, since 2006, two of the most common types of abuses alleged have been financial exploitation and emotional abuse.

If you or a loved one is an individual-at-risk, you should make sure to take advantage of the protections afforded to those individuals under Wisconsin law.

Tags: Family Law

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