Section 943.84. Transfer of encumbered property.

 

(1)  Whoever, with intent to defraud, conveys real property which he or she knows is encumbered, without informing the grantee of the existence of the encumbrance may be penalized as provided in s. 943.91 .

(2)  Whoever, with intent to defraud, does any of the following may be penalized as provided in s. 943.91 :

(a) Conceals, removes or transfers any personal property in which he or she knows another has a security interest; or

(b) In violation of the security agreement, fails or refuses to pay over to the secured party the proceeds from the sale of property subject to a security interest.

(3)  It is prima facie evidence of an intent to defraud within the meaning of sub. (2) (a) if a person, with knowledge that the security interest exists, removes or sells the property without either the consent of the secured party or authorization by the security agreement and fails within 72 hours after service of written demand for the return of the property either to return it or, in the event that return is not possible, to make full disclosure to the secured party of all the information the person has concerning its disposition, location and possession.

(4)  In this section “security interest" means an interest in property which secures payment or other performance of an obligation; “security agreement" means the agreement creating the security interest; “secured party" means the person designated in the security agreement as the person in whose favor there is a security interest or, in the case of an assignment of which the debtor has been notified, the assignee.

(5)  In prosecutions for violation of sub. (2) arising out of transfers of livestock subject to a security agreement in violation of the terms of the security agreement, evidence that the debtor who transferred the livestock signed or endorsed any writing arising from the transaction, including a check or draft, which states that the transfer of the livestock is permitted by the secured party establishes a rebuttable presumption of intent to defraud.

1977 c. 173 ; 1979 c. 144 ; 1993 a. 486 ; 2001 a. 109 ; 2005 a. 212 s. 7m ; Stats. 2005 s. 943.84. It is not necessary that a security interest be perfected by filing to support a conviction under this section. State v. Tew, 54 Wis. 2d 361 , 195 N.W.2d 615 (1972). “Removal" under sub. (2) (a) refers to a permanent change in situs, not necessarily across state lines. A showing of diligence by the secured party in seeking the secured property is not required. Jameson v. State, 74 Wis. 2d 176 , 246 N.W.2d 501 (1976). Sub. (1) is not unconstitutionally vague. Liens were effective as encumbrances on the date work was performed or materials supplied. State v. Lunz, 86 Wis. 2d 695 , 273 N.W.2d 767 (1979).