State Codes and Statutes

Statutes > Wisconsin > 846 > 846.162

846.162

846.162 Disposition of surplus. If there shall be any surplus paid into court by the sheriff or referee, any party to the action or any person not a party who had a lien on the mortgaged premises at the time of sale, may file with the clerk of court into which the surplus was paid, a notice stating that the party or person is entitled to such surplus money or some part thereof, together with the nature and extent of the party's or person's claim. The court shall determine the rights of all persons in such surplus fund by reference or by testimony taken in open court, but no such hearing shall be had in court or before a referee except upon 8 days' notice to all persons that have appeared in the action or filed notice of claim to such surplus money. If any such claimant shall not have appeared by attorney, notice of such hearing may be served by mail directed to the claimant at the place of the claimant's residence as stated in the claimant's notice of claim.

846.162 - ANNOT.

History: 1973 c. 189 s. 7; Stats. 1973 s. 816.162; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.162; 1993 a. 486.

846.162 - ANNOT.

This section is procedural. It creates no substantive rights. First Wisconsin Trust Co. v. Rosen, 143 Wis. 2d 468, 422 N.W.2d 128 (Ct. App. 1988).

846.162 - ANNOT.

A mortgage covenant to pay taxes expires when the mortgage lien is extinguished upon confirmation of the sheriff's sale. Taxes accruing after confirmation cannot be recovered from a surplus in sale proceeds. Harvest Savings Banking v. ROI Investments, 209 Wis. 2d 586, 563 N.W.2d 579 (Ct. App. 1997), 96-0998.

846.162 - ANNOT.

This section does not apply to a junior lienholder. Section 846.15 specifically addresses junior lienholders. In practice, the "right to redeem" may be used loosely to include both a mortgagor's right to redeem under s. 846.13 and a junior lienholder's right under s 846.15 to pay the judgment and become subrogated to the plaintiff's rights in the judgment. However, when a mortgagor pays the plaintiff the amount of the judgment, the judgment is discharged and the mortgagor retains title. When a junior lienholder pays the plaintiff the amount of the judgment, the junior lienholder neither retains title, since it never had it, nor acquires title; rather, the junior lienholder acquires the rights the plaintiff has as a result of the judgment. JP Morgan Chase Bank, NA v. Green, 2008 WI App 78, 311 Wis. 2d 715, 753 N.W.2d 536, 07-1753.