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Jan 7, 2017

Can someone please explain Dodd-Frank? Part 1 - the SAFE Act

NOTE:  The following is for discussion purposes only and is not intended to substitute for legal research or advice on a particular issue. Further, because this area of the law has changed and is changing, it is critical to examine the actual statutes in effect at the time of the relevant occurrences.  This discussion is general, is not intended to be comprehensive, and may not be updated.

Part 1 - Remind us, what was/is Dodd-Frank?

We have encountered numerous clients, more than a few lawyers, and even a judge or two, who do not understand the history and legislation commonly referred to as "Dodd-Frank."  This is not surprising because the law is a byzatine modification of other areas of law which morphed over time as it was interpreted by the new federal agency known as the CFPB.  So let's start at the beginning - what was/is Dodd-Frank?

As part of the aftermath and bail-out of the 2008 financial "crisis," Congress tapped Rep. Barney Frank and Sen. Christopher Dodd to draft regulations supposedly targeted toward preventing the recurrence of such an event. (In this author's humble opinion, this was akin to asking Mr. and Mrs. Fox to supervise reform of hen-house security).  The Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111–203, H.R. 4173) was signed into law by President Obama on July 21, 2010.  

Dodd-Frank made sweeping changes to numerous areas of federal law as well as creating an entirely new body of regulations.  As relates to real estate lending, Dodd-Frank modified the SAFE ACT, TILA, and RESPA.  Dodd-Frank also created the Consumer Financial Protection Bureau, a new federal enforcement super-agency.

OK - let's start with the SAFE Act.

Originally enacted on July 30, 2008, the SAFE ACT was signed by President Bush as part of the Housing and Economic Recovery Act which was the first supposed effort at preventing the collapse that was unfolding in 2008.  The SAFE Act required states to pass legislation relating to mortgage loan origination licensure.  In Wisconsin, provisions intended to comply with the SAFE Act were incorporated into the banking laws at Chapter 224, Stats., effective January 1, 2010.

2010 -  Wisconsin Chapter 224
Chapter 224, Stats, incorporated federal definitions of mortgage loan originators, mortgage brokers and mortgage bankers.  A "mortgage loan originator" was defined as an individual who, for compensation or gain, takes a residential mortgage loan application or offers or negotiates the terms of a residential mortgage loan.  Wis. Stat. § 224.71(6)(a).  There were stated exceptions which should be reviewed for particular cases but which are not discussed here except to note that there was an exemption for a seller selling his/her domicile.  

The broad definition of a mortgage loan originator, along with the following definitions, had fairly broad effects on who needed a mortgage loan originator's license.  
  •  "Residential mortgage loan" = "any loan primarily for personal, family, or household use that is secured by a lien, mortgage, or equivalent security interest, on a dwelling or residential real property located in this state."Wis. Stat. § 224.71(14).
  • "Residential real property" = "real property on which a dwelling is constructed or intended to be constructed."Wis. Stat. § 224.71(15).
  •  "Dwelling" = dwelling as defined by federal TILA = "a residential structure or mobile home which contains one to four family housing units, or individual units of condominiums or cooperatives." Wis. Stat 224.71(1f)
Under the plain language of Chapter 224, and as interpreted by the Division of the Banking Administrator of the Wisconsin Department of Financial Institutions, a mortgage loan originator's license was required for home sales to consumers using seller financing via land contract, mortgage, or second mortgage (unless the home was the seller's home).

There was substantial confusion and concern at both the state level and the federal level as to the effects of the SAFE Act.  In the meanwhile, pursuant to Dodd-Frank, a new regulatory entity was created, the Consumer Financial Protection Bureau, and it began the process of creating regulations including modifications to the SAFE Act.  

In January of 2013, the CFPB released its final rules with a stated effective date of January 2014.  (Note, several CFPB rules took effect between 2010 and 2014, so it is important to check timeframes and applicable rules and regulations for any particular case).

In an effort to comply with the revised SAFE Act as interpreted by the CFPB in its rules and regulations, on April 24, 2014, Gov. Walker signed 2013 Wis. Act 360 (Act 360) which further modified Chapter 224, Stats.  

Among other changes, notably, the modified Chapter 224 definition defined mortgage loan origination to mean  regularly engaging in the business.

224.725 Licensing of mortgage loan originators.
(1)License required. Except as provided in sub. (1m), an individual may not regularly engage in the business of a mortgage loan originator .... (without a license).
.....
(13m) “Regularly engage," with respect to an individual, means that any of the following applies:
(a) The individual engaged in the business of a mortgage loan originator on more than 5 residential mortgage loans, in this state or another state, in the previous calendar year or expects to engage in the business of a mortgage loan originator on more than 5 residential mortgage loans, in this state or another state, in the current calendar year.
(b) The individual is acting on behalf of a person who is, or is required to be, licensed as a mortgage lender, mortgage banker, or mortgage broker in this state or another state.
(c) The individual is acting on behalf of a registered entity.

In other words, Chapter 224 now exempts from the mortgage loan originator license requirements individuals offering financing on five or fewer properties per year.

NOTE:  Although this provides an exemption for seller-financing from the SAFE Act, there are different requirements and exemptions which must be considered for other areas implicated by Dodd-Frank such as TILA and RESPA.  

Stay tuned for a disucssion of those other areas.

Oct 27, 2016

Does a property owner have any rights to repel drones?

There are 3 areas of regulation that might be implicated by a drone flying over your property - Local, State and Federal laws, rules, and regulations.

At the local level, municipalities may enact ordinances that limit where, when and how drones can be used.

The State of Wisconsin has addressed drone regulation primarily as a "privacy" issue. See Wisconsin Statute - 942.10  Use of a drone. Whoever uses a drone, as defined in s. 175.55 (1) (a), with the intent to photograph, record, or otherwise observe another individual in a place or location where the individual has a reasonable expectation of privacy is guilty of Class A misdemeanor. This section does not apply to a law enforcement officer authorized to use a drone pursuant to s. 175.55 (2).

The federal government, which likely trumps either of the above on this subject, regulates drones through the FAA.  FAA publications include:  http://www.faa.gov/uas/faqs/#gen

Feb 10, 2016

"As-is" clause in offer to purchase contract doesn't shield seller from misrepresentation claim

Catherine Fricano v. Bank of America NA No. 2015AP20 (WI App. Dec. 23, 2015)

The Wisconsin Court of Appeals upheld a jury verdict for damages against Bank of America NA in a claim filed by a home purchaser against the bank which had acquired the home in foreclosure.  Like most REO sales, the bank required the buyer to include an “as-is” clause in the purchase contract whereby the buyer acknowledged that the property was being acquired without any representation or warranty by the seller as to its condition.  When the buyer discovered after closing that there was a substantial mold problem and that the bank’s real estate agent knew about the mold problem, the buyer filed a fraudulent misrepresentation action under sec. 100.18, Stats.  The buyer alleged that the bank misrepresented the condition of the home and misrepresented its knowledge regarding the condition of the home.

Despite the fact that the buyer, her fiance’, and her real estate agent admitted that they all saw mold and noted a musty odor, and despite the fact that the buyer hired an inspector to determine the extent of the mold, and despite the fact that the buyer apparently retained a mold specialist consultant about mold removal, the buyer nonetheless claimed that the extent of the mold was unknown to the buyer and that the seller misrepresented its lack of knowledge about the problem.  The buyer alleged that this constituted a fraudulent misrepresentation.


A jury agreed and awarded damages to the buyer.  On appeal, among other arguments, Bank of America argued that the contractual “as is” clause barred the plaintiff’s claims.  The court of appeals affirmed the trial court’s determination that the “as-is” clause is not a complete bar when a claim is based on sec. 100.18, Stats.  Because the bank made affirmative untrue statements, (basically stating “we know nothing” when the bank did know something), the plaintiff was deceived in violation of sec. 100.18, Stats.

Dec 30, 2015

Does This Contract "Work" in Wisconsin?

Frequently, I am asked by a client, or, more often, a "prospective" client, to give a quick review to a contract form to tell the person whether it will "work."  The situation may arise because the person has obtained a form contract from a library, subscription materials, or from the internet.  Regardless of the source, the person wants me, a licensed attorney, to assure that the form will "work."  The person who has gone through all of the trouble of obtaining the form often believes that I should be able to confirm, in a manner of seconds, whether the form will "work."

What does it mean for a contract to "work?"  Will it be enforceable?  Will it avoid disputes?  Will it protect my interests?  Will it do what I want it to do? Rarely can any of these questions be answered solely by reviewing the contract language.  There are contract forms which are clearly unenforceable.  There are contract forms with obvious errors. There are contract forms which can be easily improved.  However, many of the contract forms one can find on the internet are perfectly fine provided that they fit the client's needs.  Whether the contract form can be used depends upon the intended use.

Consider this analogy:  After watching TV commercials and conducting internet research, one becomes familiar with a particular medication.  One doesn't ask a physician "Does this pill work?"  The real question is "Might this pill work for me given my medical needs, condition and history?"  A physician cannot say, "Well, I don't know anything about your medical needs, condition, or history, but go ahead and use this medication because it `works'."

Why are written contract forms used in the first place?  Contracts are reduced to writing in an effort to reduce ambiguity.  A written contract tries to make expectations clear both for the parties and for any adjudicator asked to enforce the contract.

Note, there are two very distinct reasons why parties enter into contracts - First, it is important to have a "meeting of the minds" on critical aspects of a relationship.  Without such an agreement, there is no contract, and the parties do not have a shared expectation as to how their shared experience will proceed.  A joint venture requires a basic understanding of who is going to do what, how, and with what consequences.

The second reason parties enter into a contract is to build a set of default rules for future disputes.  If, after agreeing upon a contract, all parties later decide to deviate from the agreement, that is fine.  They simply amend the contract by mutual consent.  It is in the case where the parties do not agree in the future that the contract language becomes critical.

In order for me to assess whether, in my professional judgment, a contract form is likely to meet the expectation of the parties and further is likely to properly address likely future disputes, I need to know more than what the form says.  Getting a form is the easy part.

Generally, I can say "Yes, your contract form will work for something."  Whether the best use for a particular form is a business use or lining for a gerbil cage does not depend solely on the form - it depends upon the intended use and the parties involved.



Dec 7, 2015

2 pending bills would (almost) abolish adverse possession

What is "adverse possession?"  Simply put, when a person has acted like the owner of real estate for the requisite period of time within certain parameters, that person becomes the owner of the real estate.  A person who "squats" for 20 years thereby owns the parcel.  How does this come about?

A common scenario where this happens is as follows: A fence was installed on crop land years ago.  Since that time, the fields have been sold to different parties who have since sold the lands again and again.  All parties have behaved as though the fence line was the property line.  However, an accurate survey now discloses that the fence line was not installed exactly on the property line.  Through adverse possession, the fence line may have become the property line despite whatever is written in the deeds.

The elements of adverse possession include the following:

Pursuant to WIS. STAT. § 893.25(2)(a) and (b), real estate is possessed adversely only if “the person possessing it, in connection with his or her predecessors in interest, is in actual continued occupation under claim of title, exclusive of any other right,” and “[o]nly to the extent that it is actually occupied.” In addition, the property must be “protected by a substantial enclosure” or “usually cultivated or improved.” Pursuant to § 893.25(1), the adverse possession must be uninterrupted for twenty years. In order to constitute adverse possession, “the use of the land must be open, notorious, visible, exclusive, hostile and continuous, such as would apprise a reasonably diligent landowner and the public that the possessor claims the land as his own.” “Hostile” in this context does not mean a deliberate and unfriendly animus; rather, the law presumes the element of hostile intent if the other requirements of open, notorious, continuous, and exclusive use are satisfied. “Both ... the fact of possession and its real adverse character” must be sufficiently open and obvious to “apprize the true owner ... in the exercise of reasonable diligence of the fact and of an intention to usurp the possession of that which in law is his own ....” The size and nature of the disputed area are relevant in deciding if the use is sufficient to apprise the true owner of an adverse claim. No. 2012AP1869 6 The party seeking to claim title by adverse possession bears the burden of proving the elements by clear and positive evidence. The evidence must be strictly construed against the claimant and all reasonable presumptions must be made in favor of the true owner. One of these presumptions is that “actual possession is subordinate to the right of [the true] owner.” Steuck Living Trust v. Easley, 2010 WI App 74, ¶¶11-15, 325 Wis. 2d 455, 785 N.W.2d 631.  

The law relating to adverse possession has been established in Wisconsin at common law since the state's formation, and statutes governing this transfer of land have existed since 1931.  There is a large and relatively settled body of law on the subject.

Until now.....

Two bills currently pending (as of 12/1/2015) in the Wisconsin legislature seek to modify adverse possession law.  One of the bills, Senate Bill 344, would effectively abolish adverse possession.  Why?  It appears that the bills proponents are opposed to the idea that the tort of trespass, when committed for long enough, becomes the right to ownership.  Admittedly, this law is strange in that it converts something which is actionable (trespass) into something that is valuable (ownership).

However, the law resulted from the fact that we need some way to address these inevitable situations.  Note, with more accurate surveying, these claims may become less "necessary" over time.  However, there are untold numbers of parcels where the various parties understand the situation to be different than an accurate survey would reveal.  Why should the survey govern rather than the understanding of all parties involved?

The problem with the current proposed changes is that there is no indication as to how these claims will be resolved.  I personally would not be opposed to abolition of adverse possession provided that there is another adequate mechanism to resolve vested rights in property that do not appear of record.



Jun 17, 2015

Prince Corp. v. Vandenberg, 2014AP2097 (June 16, 2015) - How does tax lien apply to tenants in common?

Prince Corp. v. Vandenberg, 2014AP2097 (June 16, 2015)

The Court of Appeals addressed 2 issues.  1) Where the Wisconsin Department of Revenue had docketed tax liens but had not commenced a garnishment action, was the DOR entitled to capture proceeds from the sale of real estate?  Answered - Yes.  2) Where the property was held as a tenancy in common and only one debtor owed the taxes, and where the sale proceeds were first used to pay jointly held debt and with the remainder distributed to the owners, was the DOR nonetheless able to capture a proportionate share of ALL of the proceeds including those used to pay joint debt?  Answered - Yes.
...
¶19 The Intervenors next argue that, even if the final land contract payment is subject to garnishment, the garnishable amount is limited to one-fourth of the final payment. They observe that WIS. STAT. § 812.01(1) allows a creditor to garnish property “in [the garnishee’s] possession or under his or her controlbelonging to such creditor’s debtor[.]” They argue the property in Van De Hey’s possession that belongs to Vandenberg is limited to one-fourth of the final land contract payment, or $28,475. They essentially assert the circuit court employed an inconsistent analysis by treating the land contract payments as divisible for purposes of concluding the final payment is garnishable, but then treating the payments as indivisible for purposes of calculating the garnishable amount. ¶20 We conclude, as a matter of law, that the circuit court correctly interpreted the land contract and properly applied WIS. STAT. § 700.21(1). Under the plain language of the land contract, the full contract price is payable to all four covendors. However, by operation of § 700.21(1), the contract price is divided between the covendors according to their respective interests in the Brown County property. Contrary to the Intervenors’ assertion, the individual payments are not subdivided; only the full contract price is subdivided. Under § 700.21(1), Vandenberg has a property right to one-fourth of the full contract price, or $85,425. Accordingly, that is the garnishable amount.