Section 846.165. Application for confirmation of sale and for deficiency judgment.

 

(1)  No sale on a judgment of mortgage foreclosure shall be confirmed unless 5 days' notice has been given to all parties that have appeared in the action. Such notice shall be given either personally or by registered mail directed to the last-known post-office address, mailed at least 5 days prior to the date when the motion for confirmation is to be heard, if any post-office address is known; if not known, mailing may be dispensed with but an affidavit shall be filed with the court stating that the address is not known, and the notice shall state, in addition to other matter required by law, the amount of the judgment, the amount realized upon the sale, the amount for which personal judgment will be sought against the several parties naming them, and the time and place of hearing.

(2)  In case the mortgaged premises sell for less than the amount due and to become due on the mortgage debt and costs of sale, there shall be no presumption that such premises sold for their fair value and no sale shall be confirmed and judgment for deficiency rendered, until the court is satisfied that the fair value of the premises sold has been credited on the mortgage debt, interest and costs.

1973 c. 189 s. 7 ; Stats. 1973 s. 816.165; Sup. Ct. Order, 67 Wis. 2d 585, 768 (1975); Stats. 1975 s. 846.165. Cross-reference: For tardy confirmation of sale, after 6 years, see s. 846.18 . The trial court should determine "fair value" under sub. (2) even though the bid does not shock the court's conscience. First Wisconsin National Bank of Oshkosh v. KSW Inv. 71 Wis. 2d 359 , 238 N.W.2d 123 (1976). The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings and Loan Asso. v. Barkwood Landscaping Co., Inc. 93 Wis. 2d 190 , 286 N.W.2d 581 (1980). An appeal from an order confirming sale does not enable the appellant to challenge a judgment of foreclosure. Shuput v. Lauer, 109 Wis. 2d 164 , 325 N.W.2d 321 (1982). There is no statutory requirement that sale proceeds be applied first to the portion of the debt that is guaranteed. Crown Life Ins. Co. v. LaBonte, 111 Wis. 2d 26 , 330 N.W.2d 201 (1983). "Fair value" under sub. (2) is determined by the property's sale value. The court may consider costs of selling, holding, or carrying the property only to the extent that they affect the sale value. First Financial Savings Assoc. v. Spranger, 156 Wis. 2d 440 , 456 N.W.2d 897 (Ct. App. 1990). The purchaser at a foreclosure sale has a right to notice of when the sale has been confirmed, when the mortgagor's redemption period ends, and when the 10-day payment period under s. 846.17 expires. GMAC Mortgage Corp. v. Gisvold, 215 Wis. 2d 459 , 572 N.W.2d 466 (1998), 96-1663 . Because s. 703.10 (6) prohibits condominium bylaws from affecting the transfer of title to a condominium unit, a bylaw prohibiting the sale of any unit to an owner who would not reside in the unit could not be applied to prevent the confirmation of a foreclosure sale to the high bidder who admitted he would not occupy the premises. Also, the potential failure to occupy the unit had no recognized legal relationship to the confirmation of the sheriff's sale and the transfer of title. Bankers Trust Company of California, N.A. v. Bregant, 2003 WI App 86 , 261 Wis. 2d 855 , 661 N.W.2d 498 , 02-2085 . Under sub. (2), when a creditor seeks a deficiency judgment, there is no presumption that the property sold for fair value. From that, it follows that when the mortgagee does not seek a deficiency judgment, there is a presumption. The statute does not eliminate the requirement that the court find fair value. A tax assessment, like an appraisal, can be viewed as a measure of fair value. Each case must be considered on its merits. Bank of New York v. Mills, 2004 WI App 60 , 270 Wis. 2d 790 , 678 N.W.2d 332 , 03-1339 . This section does not preclude a purchaser from obtaining a confirmation hearing when the mortgagee's application for confirmation has been withdrawn. This affords the purchaser an opportunity to have the court decide whether it is entitled to transfer of the property under applicable law, and does not undermine the rights of the lienholders and mortgagor to object to certification as provided by law. JP Morgan Chase Bank, NA v. Green, 2008 WI App 78 , 311 Wis. 2d 715 , 753 N.W.2d 536 , 07-1753 . The notice referred to throughout sub. (1) is the notice of the first sentence that must be given to all parties that have appeared in the action. There is no requirement that when no party is entitled to personal notice under sub. (1) there must be a general posting or publication of notice. There is no general hearing requirement or general motion-for-confirmation requirement that applies when no notice of hearing is required. Wells Fargo Bank, N.A. v. Biba, 2010 WI App 140 , 329 Wis. 2d 787 , 793 N.W.2d 95 , 09-2273 .