Section 409.610. Disposition of collateral after default.

 

(1)   Disposition after default. After default, a secured party may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing.

(2)   Commercially reasonable disposition. Every aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable. If commercially reasonable, a secured party may dispose of collateral by public or private proceedings, by one or more contracts, as a unit or in parcels, and at any time and place and on any terms.

(3)   Purchase by secured party. A secured party may purchase collateral:

(a) At a public disposition; or

(b) At a private disposition only if the collateral is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations.

(4)   Warranties on disposition. A contract for sale, lease, license, or other disposition includes the warranties relating to title, possession, quiet enjoyment, and the like which by operation of law accompany a voluntary disposition of property of the kind subject to the contract.

(5)   Disclaimer of warranties. A secured party may disclaim or modify warranties under sub. (4) :

(a) In a manner that would be effective to disclaim or modify the warranties in a voluntary disposition of property of the kind subject to the contract of disposition; or

(b) By communicating to the purchaser a record evidencing the contract for disposition and including an express disclaimer or modification of the warranties.

(6)   Record sufficient to disclaim warranties. A record is sufficient to disclaim warranties under sub. (5) if it indicates “There is no warranty relating to title, possession, quiet enjoyment, or the like in this disposition" or uses words of similar import.

2001 a. 10 . The burden of proving that a private sale was commercially reasonable is on the seller. Proof that the sale was made at the wholesale price does not establish reasonableness. Vic Hansen & Sons, Inc. v. Crowley, 57 Wis. 2d 106 , 203 N.W.2d 728 (1973). The primary focus of commercial reasonableness is not the proceeds from a sale, but procedures employed for the sale. Appleton State Bank v. Van Dyke Ford, Inc. 90 Wis. 2d 200 , 279 N.W.2d 443 (1979). The conduct of a debtor may be taken into account in determining the commercial reasonableness of a sale. First National Bank of Kenosha v. Hinrichs, 90 Wis. 2d 214 , 279 N.W.2d 449 (1979). A secured creditor can retain a debtor's collateral while seeking an independent action for a money judgment. Dorman v. Morris, 185 Wis. 2d 845 , 519 N.W.2d 685 (Ct. App. 1994).

Note

The above annotated materials cite to the pre- 2001 Wis. Act 10 version of ch. 409. Microsoft Windows NT 6.1.7601 Service Pack 1