                                                                    2015 WI 2015

                    SUPREME COURT             OF    WISCONSIN
CASE NO.:                 2013AP544
COMPLETE TITLE:           The Bank of New York Mellon, fka The Bank of New
                          York, as
                          Trustee for CWABS, Inc. Asset-Backed
                          Certificates, Series
                          2007-13,
                                    Plaintiff-Respondent-Petitioner,
                               v.
                          Shirley T. Carson,
                                    Defendant-Appellant,
                          Bayfield Financial LLC and Collins Financial
                          Services,
                                    Defendants.



                             REVIEW OF A DECISION OF    THE COURT OF APPEALS
                            (Reported at 352 Wis. 2d    205, 841, N.W.2d 573)
                                      (Ct. App. 2013    – Published)
                                        PDC No.: 2013   WI App 153

OPINION FILED:            February 17. 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            September 23, 2014

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Milwaukee
   JUDGE:                 Jane V. Carroll

JUSTICES:
   CONCURRED:             PROSSER, ZIEGLER, GABLEMAN, JJJ., concur.
                          (Opinion filed.)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For the plaintiff-respondent-petitioner, there were briefs
by    Valerie        L.     Bailey-Rihn,    Katherine   Maloney   Perhach,      and
Quarles         &   Brady    LLP,   Madison   and   Milwaukee;    and   James   W.
McGarry, Keith Levenberg, and Goodwin Procter LLP, Boston and
Washington. Oral argument by Valerie L. Bailey-Rihn.
    For the defendant-appellant, there was a brief by April
A.G. Hartman, Jeffrey R. Myer, and Legal Action of Wisconsin,
Inc. Oral argument by April A.G. Hartman.


    An amicus curiae brief by Grant F. Langley, city attorney;
Danielle M. Bergner, deputy city attorney; and Kail J. Decker,
assistant city attorney, on behalf of the City of Milwaukee.


    An amicus curiae brief by Catherine M. Doyle, Amanda E.
Adrian, and Legal Aid Society of Milwaukee, Inc., on behalf of
the Legal Aid Society of Milwaukee.




                                2
                                                                  2015 WI 15
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.   2013AP544
(L.C. No.   2011CV1330)

STATE OF WISCONSIN                      :            IN SUPREME COURT

The Bank of New York Mellon, fka The Bank of
New York, as Trustee for CWABS, Inc. Asset-
Backed Certificates, Series 2007-13,

            Plaintiff-Respondent-Petitioner,

      v.                                                       FILED
Shirley T. Carson,
                                                          FEB 17, 2015
            Defendant-Appellant,
                                                             Diane M. Fremgen
                                                          Clerk of Supreme Court
Bayfield Financial LLC and Collins Financial
Services,

            Defendants.




      REVIEW of a decision of the Court of Appeals.            Affirmed and

cause remanded.



      ¶1    ANN WALSH BRADLEY, J. Petitioner, Bank of New York

Mellon ("the Bank"), seeks review of a published decision of the

court of appeals that reversed the circuit court's denial of

Shirley Carson's motion to amend a judgment of foreclosure on
                                                                            No.    2013AP544



her former home.1           She requested that the court find the property

to be abandoned and that it order a sale of the property upon

expiration of five weeks from the date of entry of the amended

judgment.          The court of appeals concluded that the circuit court

erroneously determined that it was without authority to grant

the motion.

       ¶2         The Bank asserts that Wis. Stat. § 846.102 (2011-12)2,

the statute governing foreclosure of abandoned properties, does

not require it to sell a property after it obtains a judgment of

foreclosure and the redemption period has passed.                           It maintains

that       the    statute   is    permissive,        not    mandatory,      and    that   it

cannot       be    required      to    sell    a    property.     The       Bank   further

contends that even if the statute does mandate that the Bank

sell       the    abandoned    property       after    the   redemption       period,     it

provides no deadline for doing so.                         Thus, the Bank concludes

that it is free to execute on its judgment at any time within

five years after rendition of the judgment, and the circuit

court is without authority to order it to sell the property at a
specific time.

       ¶3         Based on the statute's plain language and context, we

conclude         that   when     the   court       determines   that    a    property     is

abandoned, Wis. Stat. § 846.102 authorizes the circuit court to

       1
       Bank of New York v. Carson, 2013 WI App 153, 352 Wis. 2d
205, 841 N.W.2d 573 (reversing judgment of the circuit court for
Milwaukee County, Jane V. Carroll, judge).
       2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                               2
                                                                                  No.       2013AP544



order   a   mortgagee         to    bring      the    property           to    sale     after     the

redemption    period.         We    further         conclude,       consistent          with      the

purpose of the statute, that the circuit court shall order the

property to be brought to sale within a reasonable time after

the redemption period.                  The circuit court's determination of

what    constitutes       a    reasonable           time        should    be    based       on    the

totality of the circumstances in each case.

       ¶4   In this case, the circuit court did not reach the

issue of whether the property had been abandoned.                                    Accordingly,

we affirm the court of appeals and remand the cause to the

circuit court for such a determination and further proceedings.

                                                I

       ¶5   In     2007,      Countrywide           Home        Loans    loaned       $52,000      to

Carson.     As security for the debt, Carson mortgaged her home on

Concordia     Avenue          in    Milwaukee,            Wisconsin.             After       Carson

defaulted on her payments, Countrywide and Carson entered an

agreement modifying the terms of the loan.                              Subsequently, Carson

again defaulted on the loan payments.
       ¶6   The     Bank,          as   trustee           for     Countrywide,           filed      a

complaint against Carson, seeking a judgment of foreclosure and

sale of the mortgaged premises.                     Attempts to serve Carson at the

Concordia Avenue property were unsuccessful.                               In his affidavit,

the    process     server      observed        that        the     house      appeared       to    be

vacant.     On his first visit he reported that the garage had been

boarded,     that    the       snow      was        not        shoveled,       there     were      no

footprints    in    it,       and   there      was        no    furniture       in    the    house.
Notes from his successive visits state that the snow was still
                                                3
                                                                               No.   2013AP544



not   shoveled      and    there       were    still      no     footprints      around     the

house.

      ¶7        Thereafter,        the        Bank       published       notice      of     the

foreclosure       action    in     a    local        newspaper.         Carson,      who   was

physically and financially unable to care for the property, did

not file an answer or otherwise dispute the foreclosure.                                    In

April     2011,    BAC    Home    Loan    Servicing,           LP,     apparently     a    loan

servicer for Countrywide, filed a City of Milwaukee Registration

of Abandoned Property in Foreclosure form for the property.3

      ¶8     The circuit court entered a judgment in favor of the

Bank.      It     determined      that    Carson         owed     the   Bank    $81,356.59.

After acknowledging that the property was not owner occupied,

the court directed that the property "shall be sold at public

auction under the direction of the sheriff, at any time after

three     month(s)       from    the    date       of    entry    of    judgment."         The

judgment also enjoined both parties from committing waste on the

premises     and     specified         that    in       the    event    the    property     is

abandoned by the defendants, the Bank "may take all necessary
steps to secure and winterize the subject property."

      ¶9     After the judgment was entered, the Bank did not take

steps to secure the property.                  It was repeatedly burglarized and


      3
       "Loan servicers are the entities that collect payments for
mortgages, provide billing and tax payments to the homeowners,
and have sole control over the modification of a loan." Andrew
Peace, Coming Up for Air: The Constitutionality of Using Eminent
Domain to Condemn Underwater Mortgages, 54 B.C. L. Rev. 2167,
2178 n.82 (2013).


                                               4
                                                                      No.     2013AP544



vandalized.      At one point someone started a fire in the garage.

Despite    an    order    from     the   City     of   Milwaukee    Department      of

Neighborhood Services to maintain the property, the Bank did not

do so.     Carson received notices of accumulated trash and debris,

as well as notices of overgrown weeds, grass, and trees.                            The

City imposed approximately $1,800 in municipal fines on her and

she made payments of approximately $25 per month toward the

fines.

     ¶10    By    November       2012,    more    than    16   months     after    the

judgment of foreclosure was entered, the Bank had not sold the

property and had no plans to sell it.                  Carson filed a motion to

amend the judgment to include a finding that the property was

abandoned and an order that the sale of the premises be made

upon expiration of five weeks from the date of entry of the

amended judgment, pursuant to Wis. Stat. § 846.102.4

     ¶11    In    support     of    her    motion,       Carson    referenced       the

affidavit    from   the     process      server    indicating      that     the   house

appeared vacant.         She produced her own affidavit stating that
she had terminated her utility accounts, that the property had


     4
         Wisconsin Stat. § 846.102(1) states:

     In an action for enforcement of a mortgage lien if the
     court makes an affirmative finding upon proper
     evidence being submitted that the mortgaged premises
     have been abandoned by the mortgagor and assigns,
     judgment shall be entered as provided in s. 846.10
     except that the sale of such mortgaged premises shall
     be made upon the expiration of 5 weeks from the date
     when such judgment is entered.


                                           5
                                                                        No.     2013AP544



been vandalized, that the doors and windows on the house had

been boarded, and that the garage had been damaged by fire.                            She

also produced the form the loan servicer filed with the City of

Milwaukee      registering      the    premises     as     an   abandoned     property,

violation notices from the City indicating that there was trash

and debris on the property, a copy of the complaint record from

the City, and a re-inspection fee letter from the City.

       ¶12   The circuit court denied Carson's motion.                    It observed

that    Wis.    Stat.    §     846.102       did   not     specifically       grant     it

authority to order the Bank to sell the property at a specific

time.    It explained "I can't find anywhere in the statute [Wis.

Stat. § 846.102] that I have the authority to grant the relief

that [Carson is] requesting."                The court further noted that the

statute contemplates that the redemption period be elected by

the    mortgagee,     not      the    borrower,      and    questioned      whether      a

mortgagee could be compelled to execute a judgment when someone

else    is   seeking     the    order.           Accordingly,      it   stated,       "I'm

specifically finding that I don't have the authority . . . so
the motion is denied on those grounds."

       ¶13   Carson      appealed,       arguing      that      under    Wis.     Stat.

§ 846.102 the circuit court did have the authority to order sale

of the property upon expiration of the redemption period.                             The

court   of     appeals   agreed       with    Carson.       Bank   of   New    York     v.

Carson, 2013 WI App 153, ¶9, 352 Wis. 2d 205, 841 N.W.2d 573.

It determined that "the plain language of the statute directs

the court to ensure that an abandoned property is sold without
delay, and it logically follows that if a party to a foreclosure
                                             6
                                                                      No.       2013AP544



moves the court to order a sale, the court may use its contempt

authority to do so."               Id., ¶13.      Accordingly, it reversed the

circuit court and remanded the case.                Id., ¶16.

                                            II

          ¶14   This case presents two issues.             First, we are asked to

determine       whether    Wis.     Stat.   §    846.102   authorizes       a   circuit

court to order a mortgagee to bring a property to sale.                         Second,

we are asked whether a court can require a mortgagee to bring a

property to sale at a certain point in time.                         Both questions

require us to determine the scope of authority granted to the

circuit court by Wis. Stat. § 846.102.                 Statutory interpretation

is    a    question   of     law    that    we    review   independently        of    the

determinations rendered by the circuit court and the court of

appeals.        Bank Mut. v. S.J. Boyer Constr., Inc., 2010 WI 74,

¶21, 326 Wis. 2d 521, 785 N.W.2d 462.

          ¶15   Our goal in statutory interpretation is to determine

what the statute means so that it may be given its full, proper,

and intended effect.           State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.

Interpretation of a statute begins with an examination of the

statutory language.          Id., ¶45.       "Statutory language is given its

common, ordinary, and accepted meaning, except that technical or

specially-defined words or phrases are given their technical or

special definitional meaning."              Id.

          ¶16   In seeking to give a statute its intended effect, we

are   cognizant       that    "[a]    statute's      purpose    or   scope      may    be
readily apparent from its plain language or its relationship to
                                            7
                                                                         No.    2013AP544



surrounding         or    closely-related        statutes——that      is,       from    its

context or the structure of the statute as a coherent whole."

Id.,       ¶49.      Thus,   statutory     language      is    interpreted      "in    the

context in which it is used; not in isolation but as part of a

whole; in relation to the language of surrounding or closely-

related statutes."           Id., ¶46.

       ¶17        Where the statutory language is ambiguous we turn to

extrinsic         sources,    such   as    legislative        history,    to    help   us

discern the meaning of a statute.                     Id., ¶51.    "[A] statute is

ambiguous if it is capable of being understood by reasonably

well-informed            persons   in     two    or    more    senses."        Id.,    ¶47

(citations omitted).

                                           III

       ¶18        We begin with the language of the statute at issue.

Wisconsin Stat. § 846.102 governs actions for enforcement of

mortgage liens on abandoned properties.5                      Under the statute, if

the court makes an affirmative finding that a property has been

abandoned, it shall enter a judgment stating that "the sale of
such mortgaged premises shall be made upon the expiration of 5

weeks from the date when such judgment is entered."                        Wis. Stat.

§ 846.102(1).         It states:

       (1) In an action for enforcement of a mortgage lien if
       the court makes an affirmative finding upon proper
       evidence being submitted that the mortgaged premises

       5
       The language of the statute and its placement within
chapter 846 indicate that it governs only foreclosure actions
initiated by mortgagees.


                                            8
                                                                No.    2013AP544


    have been abandoned by the mortgagor and assigns,
    judgment shall be entered as provided in s. 846.10
    except that the sale of such mortgaged premises shall
    be made upon the expiration of 5 weeks from the date
    when such judgment is entered. Notice of the time and
    place of sale shall be given under ss. 815.31 and
    846.16 and placement of the notice may commence when
    judgment is entered.
Wis. Stat. § 846.102(1) (emphasis added).

    ¶19       The statute further permits entities other than the

mortgagee to present evidence that a property had been abandoned

and describes what type of evidence should be considered:

    (2) In addition to the parties to the action to enforce
    a mortgage lien, a representative of the city, town,
    village, or county where the mortgaged premises are
    located may provide testimony or evidence to the court
    under sub. (1) relating to whether the premises have
    been abandoned by the mortgagor. In determining
    whether the mortgaged premises have been abandoned,
    the   court  shall   consider  the   totality  of   the
    circumstances, including the following:

    (a) Boarded, closed, or damaged windows or doors to
    the premises.

    (b) Missing, unhinged, or continuously unlocked doors
    to the premises.

    (c) Terminated utility accounts for the premises.

    (d) Accumulation of trash or debris on the premises.

    (e) At least 2 reports to law enforcement officials of
    trespassing, vandalism, or other illegal acts being
    committed on the premises.

    (f) Conditions that make the premises unsafe or
    unsanitary or that make the premises in imminent
    danger of becoming unsafe or unsanitary.
Wis. Stat. § 846.102(2).

    ¶20       The plain language of the statute grants the circuit
court   the    authority   to   order   a   bank   to   sell   the    property.

                                        9
                                                                           No.     2013AP544



Indeed, under the statute the court's judgment must include a

requirement that the property be sold. It provides that if the

court makes a finding of abandonment then "judgment shall be

entered as provided in s. 846.10 except that the sale of such

mortgaged premises shall be made upon the expiration of 5 weeks

from       the     date    when    such    judgment   is    entered."6         Wis.   Stat.

§ 846.102(1) (emphasis added).

       ¶21       Generally,       "the     word   'shall'    is    presumed      mandatory

when it appears in a statute."                     Karow v. Milwaukee Cnty. Civil

Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978); see

also       Norman     J.    Singer     &   J.D.    Shambie       Singer,   3     Sutherland

Statutory          Construction        §   57:2    (7th    ed.    2008)    ("'Shall'     is

considered presumptively mandatory unless there is something in

the context or the character of the legislation which requires

it     to     be     looked       at   differently.").            We   have    previously

interpreted "shall" as mandatory when used in Wis. Stat. ch.

846.        GMAC Mortgage Corp. v. Gisvold, 215 Wis. 2d 459, 478, 572

N.W.2d 466 (1998).


       6
           Wisconsin Stat. § 846.10 states, in relevant part:

       (1) If the plaintiff recovers the judgment shall
       describe the mortgaged premises and fix the amount of
       the mortgage debt then due and also the amount of each
       installment thereafter to become due, and the time
       when it will become due, . . . and shall adjudge that
       the mortgaged premises be sold for the payment of the
       amount then due . . . and when demanded in the
       complaint, direct that judgment shall be rendered for
       any   deficiency   against   the  parties   personally
       liable . . . .
       (2)


                                              10
                                                                          No.    2013AP544



     ¶22      We    acknowledge,       however,       that    although          the    word

"shall" suggests that a statutory provision is mandatory, the

legislature's use of the word "shall" is not governed by a per

se rule.      See State v. R.R.E., 162 Wis. 2d 698, 707, 470 N.W.2d

283 (1991).        This court has previously explained that "'[s]hall'

will be construed as directory if necessary to carry out the

intent   of    the    legislature."            Id.;   see    also    State       ex    rel.

Marberry v. Macht, 2003 WI 79, ¶15, 262 Wis. 2d 720, 665 N.W.2d

155 (court considers legislative intent in determining whether a

statutory provision is mandatory or directory); State v. Thomas,

2000 WI App 162, ¶9, 238 Wis. 2d 216, 617 N.W.2d 230 (noting

that factors to consider in determining whether a statute is

mandatory      include         "the   statute's       nature,       the     legislative

objective for the statute, and the potential consequences to the

parties, such as injuries or wrongs.").

     ¶23      The context in which "shall" is used in Wis. Stat.

§ 846.102(1) indicates that the legislature intended it to be

mandatory.         First, when the legislature uses the terms "shall"
and "may" in the same statutory section, it supports a mandatory

reading of the term "shall" as the legislature is presumed to be

aware of the distinct meanings of the words.                          GMAC Mortgage

Corp., 215 Wis. 2d at 478; Karow, 82 Wis. 2d at 571; Singer 7

Singer, Sutherland Statutory Construction § 57:3.                         In Wis. Stat.

§   846.102(1)       the       legislature    used    both    "shall"        and      "may"

indicating its intent that the words have different meanings.

     ¶24      Second,      a    comparison    with    the    neighboring         statutes
also suggests that the term "shall" in Wis. Stat. § 846.102 was
                                             11
                                                                No.        2013AP544



intended to be mandatory.           The statutes on both sides of Wis.

Stat.     §    846.102   address     mortgage     foreclosures        in     other

circumstances.      Wisconsin Stat. § 846.101 addresses foreclosures

on   20-acre    properties.7       Wisconsin    Stat.   § 846.103     addresses

foreclosures       on    commercial        properties     and    multifamily

residences.8      Under both statutes it is up to the mortgagee to




      7
          Wisconsin Stat. § 846.101 states:

           (1) If the mortgagor has agreed . . . to the
      provisions of this section, and the foreclosure action
      involves a one- to 4-family residence that is owner-
      occupied at the commencement of the action . . . the
      plaintiff in a foreclosure action of a mortgage on
      real estate of 20 acres or less . . . may elect
      . . . to waive judgment for any deficiency which may
      remain due to the plaintiff after sale of the
      mortgaged premises . . . and to consent that the
      mortgagor, unless he or she abandons the property, may
      remain in possession of the mortgaged property and be
      entitled to all rents, issues and profits therefrom to
      the date of confirmation of the sale by the court.

            (2) When plaintiff so elects, judgment shall be
      entered as provided in this chapter, except that
      . . . the sale of such mortgaged premises shall be
      made upon the expiration of 6 months from the date
      when such judgment is entered.
      8
          Wisconsin Stat. § 846.103 provides:

           (1) No foreclosure sale involving real property
      other than a one- to 4-family residence that is owner-
      occupied at the commencement of the foreclosure action
      . . . may be held until the expiration of 6 months
      from the date when judgment is entered except a sale
      under sub. (2). . . .

                                                                 (continued)
                                      12
                                                                     No.   2013AP544



elect whether to seek a foreclosure judgment.                      See Wis. Stat.

§ 846.101 (court enters judgment if mortgagee waives judgment of

deficiency and permits the mortgagor to remain in possession of

the property until it is sold); Wis. Stat.                   § 846.103 (same).

In contrast to these neighboring statutes, Wis. Stat. § 846.102

does not require action by the mortgagee after it has initiated

a   foreclosure     proceeding.       It    specifically      permits      entities

other   than   the    mortgagee   to       appear    and   submit    evidence    of

abandonment.       Wis. Stat. § 846.102(2).          As the court of appeals

stated, once a mortgagee has filed a foreclosure action, the

focus of the proceeding is on the condition of the property, not

the mortgagee's preference.        Bank of New York, 352 Wis. 2d 205,

¶12.

       ¶25   The    Bank   contends        that     the    court     of    appeals'

interpretation of Wis. Stat. § 846.103 in Arch Bay Holdings LLC-

            (2) If the mortgagor of real property other than
       a one- to 4-family residence that is owner-occupied at
       the commencement of the foreclosure action . . . has
       agreed . . . to the provisions of this section, the
       plaintiff in a foreclosure action of a mortgage
       . . . may elect by express allegation in the complaint
       to waive judgment for any deficiency which may remain
       due to the plaintiff after sale of the mortgaged
       premises . . . and to consent that the mortgagor,
       unless he or she abandons the property, may remain in
       possession of the mortgaged property and be entitled
       to all rents, issues and profits therefrom to the date
       of confirmation of the sale by the court. When the
       plaintiff so elects, judgment shall be entered as
       provided in this chapter, except that . . . the sale
       of the mortgaged premises shall be made upon the
       expiration of 3 months from the date when such
       judgment is entered.


                                       13
                                                                             No.        2013AP544



Series     2008B        v.    Matson,     No.    2013AP744,        unpublished         slip    op.

(Wis. Ct. App. Mar. 18, 2014), and Deutsche Bank Nat. Trust Co.

v. Matson, No. 2012AP1981, unpublished slip op. (Wis. Ct. App.

July 30, 2013), is dispositive on the issue of whether the court

can    require      a     mortgagee      to     sell    an    abandoned     property.           In

Deutsche Bank, the court of appeals determined that the language

in Wis. Stat.             § 846.103 permitted the mortgagee to sell the

property once the statutory prerequisites were met, but did not

require      it.        No.    2012AP1981,        ¶20.        In   Arch    Bay,       the     court

reached      the        same    conclusion           when     interpreting        a    judgment

containing the same language as the statute.                               No. 2013AP744,

¶17.

       ¶26     The Bank maintains that because the court of appeals

determined that the language of Wis. Stat. § 846.103 was not

mandatory, the same construction should be applied to Wis. Stat.

§ 846.102.          However, as discussed above, Wis. Stat. § 846.103

and Wis. Stat. § 846.102 are significantly different statutes.9

See    supra       ¶20.        Further,         Arch    Bay    and    Deutsche         Bank    are
unpublished         and      have   no    precedential         authority.         Wis.      Stat.

§ 809.23(3)(b).                Although       they     may    be   cited    as        persuasive

authority, given the above discussion, they do not persuade us

that the language in Wis. Stat. § 846.102 is permissive.

       ¶27         Considering       the      statute's       clear    language         and    its

context, the Bank's argument that it cannot be required to sell


      We decline to interpret the similar sale language in Wis.
       9

Stat. §§ 846.101 and 846.103 as it is not at issue in this case.


                                                 14
                                                                     No.   2013AP544



a     property     under     Wis.   Stat.     §    846.102   is      unpersuasive.

Wisconsin Stat. § 846.102 mandates that the court order a sale

of the mortgaged premises if certain conditions are met.                     Those

conditions do not depend on action by the mortgagee alone and

are not dependent on its acquiescence or consent.

                                        IV

       ¶28     Having determined that Wis. Stat. § 846.102 authorizes

a court to order a mortgagee to bring a property to sale, we

turn to consider whether a court can also require a mortgagee to

bring a property to sale at a certain point in time.

       ¶29     Again, we begin with the words of the statute.                    It

provides that "the sale of such mortgaged premises shall be made

upon the expiration of 5 weeks from the date when such judgment

[of foreclosure] is entered."               Wis. Stat. § 846.102(1).           This

language is indicative of the time frame a court must impose for

the sale: "upon expiration of 5 weeks."

       ¶30     The Bank asserts that even if Wis. Stat. § 846.102

mandates that the circuit court order a sale of the property
after the redemption period, it provides no time limit for the

sale.        Absent any specific timeline, the Bank contends that it

has     five    years   to    execute   its       judgment   under    Wis.   Stat.

§ 815.04.10

       10
            Wisconsin Stat. § 815.04(1)(a) provides:

            Upon any judgment of a court of record perfected
       as specified in s. 806.06 or any judgment of any other
       court entered in the judgment and lien docket of a
       court of record, execution may issue at any time
                                                       (continued)
                                        15
                                                                                  No.    2013AP544



       ¶31    We     decline        to        adopt    the         Bank's      argument.          We

acknowledge that the word "upon" in Wis. Stat. § 846.102 is

ambiguous as "upon expiration of 5 weeks from the date when such

judgment is entered" could be read to mean any time after the

five   weeks        but    before    the        five    years.            It    could    also     be

interpreted to mean immediately upon expiration of five weeks or

something in between.               In discerning the answer to our inquiry,

we examine here the context of the statute, its legislative

history, and the purpose of the statute.

       ¶32    When considered in light of its neighboring statutes,

the    context       of     Wis.     Stat.        §     846.102        suggests         that     the

legislature intended a prompt sale.                          Wisconsin Stat. § 846.101,

addressing 20-acre properties, provides that if the mortgagee

waives   judgment          of   deficiency            and    permits        the   mortgagor       to

remain in the property until it is sold, the court shall enter a

judgment that the property be sold after the expiration of six

months       from    the    date         of    the     judgment.               Wisconsin       Stat.

§ 846.103, addressing foreclosures of commercial properties and
multifamily         residences,          provides           that    the     mortgagee      waives

judgment of deficiency and permits the mortgagor to remain in

the property until it is sold, the court shall enter a judgment



       within 5 years after the rendition of the judgment.
       When an execution has been issued and returned
       unsatisfied in whole or in part other executions may
       issue at any time upon application of the judgment
       creditor.




                                                 16
                                                                          No.    2013AP544



that the property be sold after the expiration of three months

from the date of the judgment.             Wis. Stat. § 846.103(2).

       ¶33   The    statute       at    issue    in    this      case,     Wis.       Stat.

§ 846.102,    prompts    faster        sales    with     fewer    requirements          for

abandoned premises than its neighboring statutes.                          It provides

that upon finding abandonment, the court shall enter a judgment

that the premises shall be sold after the expiration of five

weeks.       Wis.    Stat.    §    846.102(1).           Unlike    its     neighboring

statutes, Wis. Stat. § 846.102 does not contain the requirements

that   the   mortgagee       waive     deficiency      judgment     and     permit      the

mortgagor to remain on the premises in order for the court to

order a sale.       When viewed in light of its neighboring statutes,

the loosened requirements in Wis. Stat. § 846.102 evince an

intent to ensure a prompt sale of the property.

       ¶34   The contrary statutory intent asserted by the Bank is

unconvincing.       Referencing the redemption periods in Wis. Stat.

§§ 846.101, 846.102 and 846.103, the                     Bank contends that the

purpose behind the statute is to create delay so that defaulted
borrowers will have one last chance to retain their properties.

However, the Bank's assertion ignores the differences between

Wis. Stat. § 846.102 and those neighboring statutes.                            Wisconsin

Stat. § 846.102 addresses properties that have been abandoned,

properties     which    borrowers        no     longer     have    an     interest      in

retaining.     Thus, the policy concern of creating a delay does

not appear to be implicated.

       ¶35   The    legislative        intent    for   a   prompt       sale     is    also
supported by the legislative history of Wis. Stat. § 846.102.
                                          17
                                                                                      No.    2013AP544



In   2011,        Wis.     Stat.         § 846.102         was     amended      to    shorten     the

redemption period for abandoned properties from two months to

five weeks, to add subsection (2) permitting the city, town,

village,          or    county          to    provide        testimony          or    evidence     of

abandonment,            and        to       indicate       what     sort        of    evidence     of

abandonment a court should consider.                             2011 WI Act 136, §§ 1r, 2

(enacted Mar. 21, 2012).                      The Act was introduced as 2011 Senate

Bill 307 with bipartisan support.                          Four individuals spoke at the

public hearing on the bill: its sponsor, a representative of the

City        of    Milwaukee,            a    representative            of     Legal     Action     of

Wisconsin,          and       a    representative             of    the      Wisconsin       Bankers

Association. 2011 Senate Bill 307, Hearing before the Senate

Committee         on    Financial            Institutions          and      Rural    Issues,     2011

Regular Session, Nov. 30, 2011.                           Each individual referenced that

the bill's intent was to help municipalities deal with abandoned

properties in a timely manner.11

       ¶36        Two     of       the       speakers         explained          that       abandoned

properties         were        a   significant            problem      in    Milwaukee.          Such
properties         increase         the      crime     rate      and     have    a   destabilizing

impact       on    neighborhoods.               This      testimony         echoes    researchers'

findings that home abandonment leads to blight:

       Abandoned homes substantially decrease the value of
       neighboring properties, which in turn lowers the tax
       revenue cities can collect to help alleviate the

       11
        The    hearing     can    be     viewed    online     at:
http://www.wiseye.org/Programming/VideoArchive/ArchiveList.aspx?
cm=152.


                                                     18
                                                                            No.    2013AP544


       blight caused by abandonment.    Moreover, abandoned
       homes become public nuisances, such as fire hazards,
       that can endanger the community.
Creola       Johnson,       Fight   Blight:        Cities    Sue     to    Hold     Lenders

Responsible         for       the   Rise    in      Foreclosures          and     Abandoned

Properties, 2008 Utah L. Rev. 1169, 1171.12

       ¶37       Interpreting Wis. Stat. § 846.102 as permitting sale

at any time within five years after judgment is entered would

exacerbate the problem that the statute was meant to ameliorate.

Such     an      interpretation      would        allow     mortgagees      to     initiate
foreclosures, but fail to bring the properties to sale for an

extended period of time, leaving the properties in legal limbo.13

       ¶38       Multiple      studies     have     remarked       upon    the     negative

impact      of    such    a    scenario.          For   example,     a    study     by   the

       12
       The City of Milwaukee submitted an amicus brief detailing
the scope of the City's abandoned property problem.     It noted
that there are currently 4,900 vacant buildings in the City.
According to the City's records, approximately 400 of those
4,900 properties are currently in some stage of mortgage
foreclosure.

     Abandoned properties in Milwaukee are a magnet for crime
and create unsafe conditions.    The City explained that since
2011, its police department has responded to at least 2,025
burglaries, 93 aggravated assaults, 84 robberies, 44 sexual
assaults, 36 sudden deaths, and 7 homicides at vacant buildings.
Further, the City's fire department reported a 163% increase in
the number of fires occurring in vacant residential buildings
between 2005 and 2012.
       13
        Various terms are used to describe this situation,
including: "abandoned foreclosure," "bank walkaway," "zombie
title/property,"  and  "limbo   loan."  See  Judith   Fox,  The
Foreclosure Echo: How Abandoned Foreclosures are Reentering the
Market Through Debt Buyers, 26 Loy. Consumer L. Rev. 25, 31
(2013).


                                             19
                                                                                 No.      2013AP544



Government       Accountability              Office        determined     that         abandoned

foreclosures         create       unsightly      and        dangerous     properties           that

contribute to neighborhood decline.                        GAO, Mortgage Foreclosures:

Additional      Mortgage          Servicer      Actions          Could   Help       Reduce     the

Frequency and Impact of Abandoned Foreclosures, GAO-11-93 at 29

(Nov.    2010).        "[A]s       a    result        of    vandalism,        exposure,        and

neglect, vacant properties can become worthless. . . . abandoned

foreclosures         that      remain        vacant    for       extended        periods       pose

significant      health,        safety,       and     welfare      issues      at      the   local

level."       Id. at 31.

       ¶39     Another study has observed that "[t]he result of these

abandoned       foreclosures           has     been    devastating          to      cities      and

consumers throughout the country."                         Judith Fox, The Foreclosure

Echo:    How    Abandoned          Foreclosures            are   Reentering         the      Market

through Debt Buyers, 26 Loy. Consumer L. Rev. 25, 29-30 (2013).

"With no threat of citation for nuisance violations, and thus

little incentive to maintain the premises, many lenders very

well    may    allow     the      properties         they    control     to      deteriorate."
Kristin M. Pinkston, In the Weeds: Homeowners Falling Behind on

their    Mortgages,         Lenders      Playing           the    Foreclosure        Game,      and

Cities Left Paying the Price, 34 S. Ill. U.L.J. 621, 633 (2009).

Failing to interpret Wis. Stat. § 846.102 as enabling a court to

require a prompt sale would inhibit its use as a tool to address

abandoned properties.

       ¶40     Because      its    context      and     the      legislative        history      of

Wis.    Stat.    §    846.102       clearly      indicate         that   the      statute      was
intended to help municipalities deal with abandoned properties
                                                20
                                                                     No.    2013AP544



in a timely manner, we decline to interpret it so as to permit

properties to languish abandoned for five years.                    Cf. Waller v.

Am. Transmission Co., 2013 WI 77, ¶108, 350 Wis. 2d 242, 833

N.W.2d   764     (construing    statute    in   a    manner    to    further     the

statutory      purpose);   Bank    Mut.,    326      Wis.     2d    521,     ¶¶71-76

(interpreting Wis. Stat. § 846.103 in a manner consistent with

the statute's goals).

      ¶41   In order to give effect to the statute's purpose, we

interpret the requirement in Wis. Stat. § 846.102 that a court

order an abandoned property to be brought to sale after the five

week redemption period as a requirement that the court order the

property to be brought to sale within a reasonable time after

the   redemption     period.      Admittedly,        what     is    considered     a

reasonable time will vary with the circumstances of each case.

The circuit court is in the best position to consider arguments

and evidence on this issue.           Thus, we leave it to the circuit

court's discretion to determine, after considering the totality

of the circumstances, what a reasonable period of time may be
for each case, in light of the statute's purpose.

                                       V

      ¶42   In   this   case,   the   circuit       court   did     not    determine

whether the property on Concordia Avenue was abandoned.                     Rather,

it denied Carson's motion after concluding that it did not have

the authority to order the mortgagee to bring the property to

sale as requested by Carson.          Given that we have concluded that

the circuit court does have such authority, a finding as to
whether the property has been abandoned is needed here.                       Absent
                                      21
                                                                                  No.    2013AP544



a finding of abandonment, sale of the property cannot be ordered

under Wis. Stat. § 846.102.

       ¶43    Accordingly, we remand the case to the circuit court

to determine whether the Concordia property has been abandoned.

If the court finds that the property has been abandoned, it

shall consider the totality of the circumstances and, consistent

with    the    statutory           purpose,         enter      an    order        stating       the

reasonable         time     after      the    redemption          period        in    which     the

mortgagee must bring the property to sale.

                                               VI

       ¶44    In    sum,     based     on     the    statute's          plain    language       and

context we conclude               that when the court determines that the

property      is    abandoned,         Wis.    Stat.       §    846.102     authorizes          the

circuit court to order a mortgagee to bring a mortgaged property

to sale after the redemption period.

       ¶45    We further conclude, consistent with the purpose of

the statute, that the circuit court shall order the property to

be brought to sale within a reasonable time after the redemption
period.      The circuit court's determination of what constitutes a

reasonable         time     should      be    based       on      the     totality       of     the

circumstances in each case.

       ¶46    In this case, the circuit court did not reach the

issue of whether the property had been abandoned.                                    Accordingly,

we   affirm    the        court   of    appeals      and       remand     the     case    to    the

circuit court for such a determination and further proceedings.

       By    the    Court.—The         decision      of     the     court    of       appeals    is
affirmed and the cause is remanded to the circuit court.
                                               22
     No.   2013AP544




23
                                                                         No.     2013AP544.dtp




       ¶47    DAVID T. PROSSER, J.                  (concurring).        I agree with the

majority's decision to affirm the court of appeals.                                  I do not

agree with the majority's reasoning in support of this decision.

In my view, the owner of real property may seek a judicial sale

of the property when the owner's authority to sell is impeded or

otherwise in doubt.               Wis. Stat. § 840.03(1)(g).                   However, the

ultimate      availability        of     this     judicial        "remedy"     is    dependent

upon    the       equities       involved,          including        recognition      of    the

"interests in real property" of others.                            Wis. Stat. § 840.01.

For the reasons stated below, I respectfully concur.

                                                I

       ¶48    The        majority        opinion       is     preoccupied            with    an

interpretation of Wis. Stat. § 846.102, which is part of the

chapter on Real Estate Foreclosure.                        Chapter 846 is a detailed

and    vitally         important        chapter       of    the      Wisconsin       Statutes.

Section 846.102, entitled "Abandoned premises," is a significant

provision within the chapter.                   A mistaken interpretation of this
section is likely to have profound ramifications on real estate

financing in Wisconsin.

       ¶49    The early sections of Chapter 846 set out foreclosure

procedure in a variety of situations.                         Before examining these

sections,         I     believe     it     is       useful    to       reiterate       several

fundamental principles.

       ¶50    A       mortgage    has    been       defined     as    "any     agreement     or

arrangement in which property is used as security."                                 Wis. Stat.
§ 851.15.         "Wisconsin is a           lien-theory state             with regard to

                                                1
                                                            No.       2013AP544.dtp


mortgages.       A mortgage creates a lien on real property but does

not convey title to the property to the mortgagee (lender)."

Lawrence Sager, Wisconsin Real Estate Practice & Law 137 (11th

ed. 2004).

     ¶51    In simple terms, a "mortgage conveys an interest in

the real estate to the lender as security for the debt, while

the mortgage note is a promise to repay the debt.                 Mortgages are

the most common form of loan instruments in Wisconsin."                  Id.

     ¶52    The foreclosure provisions of Chapter 846 are invoked

by mortgagees (lenders) when a mortgagor (borrower) fails to

repay a debt.          The law provides protections for the mortgagor,

so   that    a    mortgagee    cannot   move    too    quickly    against      the

mortgagor, and the mortgagor has a period to redeem the property

after foreclosure.

     ¶53    As     a    practical    matter,    a   mortgagee     invokes      the

foreclosure provisions of Chapter 846 when its loan is not being

repaid.     However, foreclosure does not transfer ownership of the

property to the mortgagee.           Thus, the mortgagee does not control
the mortgaged property after foreclosure, and it may end up

receiving no payment on its loan until the property is sold and

the sale is confirmed.         As a result, the mortgagee normally has

a strong incentive for a prompt sale after foreclosure.

     ¶54    The    mortgagee    is    usually   entitled   to     a   deficiency

judgment against the mortgagor in the event that sale of the

property does not satisfy the debt.                 In truth, however, many

mortgagors do not have the wherewithal to satisfy a deficiency
judgment.        This is one reason why the mortgagee may waive its

                                        2
                                                           No.   2013AP544.dtp


right to a deficiency judgment in order to speed up sale of the

property.    There is no reason for the mortgagee to delay sale of

the property unless there is a rational economic reason to do

so.

      ¶55   Wisconsin   Stat.     § 846.10   is   the    basic   foreclosure

statute.    It reads in part:

           (1) If the plaintiff recovers the judgment shall
      describe the mortgaged premises and fix the amount of
      the mortgage debt then due and also the amount of each
      installment thereafter to become due, and the time
      when it will become due, and whether the mortgaged
      premises can be sold in parcels and whether any part
      thereof is a homestead, and shall adjudge that the
      mortgaged premises be sold for the payment of the
      amount then due and of all installments which shall
      become due before the sale, or so much thereof as may
      be sold separately without material injury to the
      parties interested, and be sufficient to pay such
      principal, interest and costs; and when demanded in
      the complaint, direct that judgment shall be rendered
      for any deficiency against the parties personally
      liable and, if the sale is to be by referee, the
      referee must be named therein.
Wis. Stat. § 846.10(1).

      ¶56   Subsection (2) then reads:

           (2)   . . . No sale involving a one- to 4-family
      residence that is owner-occupied at the commencement
      of the foreclosure action . . . may be held until the
      expiration of 12 months from the date when judgment is
      entered,   except   a   sale  under   s.  846.101   or
      846.102. . . .    In all cases the parties may, by
      stipulation, filed with the clerk, consent to an
      earlier sale.
Wis. Stat. § 846.10(2).

      ¶57   Section     846.101     deals    with       foreclosure    sales

(primarily of residential property under 20 acres) in which the
mortgagor has agreed to a shorter period of time for sale and

                                      3
                                                                  No.   2013AP544.dtp


redemption     (six     months)   and       the   "plaintiff"     (mortgagee)    has

elected in its complaint to waive its right to a deficiency

judgment against the mortgagor.

      ¶58     Section 846.102 permits an even shorter period between

foreclosure and sale (five weeks) when the court finds that the

mortgagor has abandoned the property——that is, "relinquishment

of possession or control of the premises whether or not the

mortgagor or the mortgagor's assigns have relinquished equity

and title."         Wis. Stat. § 846.102(1).

      ¶59     Section 846.103 relates to "Foreclosures of commercial

properties and multifamily residences."

      ¶60     The    mortgagee    is   the       "plaintiff"    under   these   four

sections.       The mortgagor does not need to sue the mortgagee

because the mortgagor may stipulate to a sale without initiating

litigation.     Wis. Stat. § 846.10(2).

      ¶61     That the mortgagee is the "plaintiff" under Wis. Stat.

§ 846.102 is clear from the opening phrase of the section: "In

an   action    for     enforcement     of    a    mortgage     lien . . . ."     The
mortgagee has the "mortgage lien" on mortgaged property as well

as standing to enforce the lien; the mortgagor does not have

either.       Moreover, although        § 846.102 does not use the word

"plaintiff," as surrounding §§ 846.10, 846.101, and 846.103 do,

§ 846.102 refers back to § 846.10: "judgment shall be entered as

provided in s. 846.10 . . . ."

      ¶62     Any notion that a municipality could bring an action

under § 846.102 is belied by the language in subsection (2),



                                            4
                                                                 No.       2013AP544.dtp


which limits the role of "a representative" of a municipality to

providing testimony or evidence of abandonment.1

                                      II

     ¶63   In    this   case,   the   Bank      of     New    York     brought     suit

against Shirley Carson under Wis. Stat. § 846.101.                           The Bank

waived its right to a deficiency judgment.                   The complaint, filed

January 25, 2011, reads in part:

          6.   The mortgagors expressly agreed to the
     reduced redemption period provisions contained in
     Chapter 846 of the Wisconsin Statutes; the plaintiff
     hereby elects to proceed under section 846.101 with a
     six month period of redemption, thereby waiving
     judgment for any deficiency against every party who is
     personally liable for the debt, and to consent that
     the owner, unless he or she abandons the property, may
     remain in possession and be entitled to all rents and
     profits therefrom to the date of confirmation of the
     sale by the court.
     ¶64   The    Milwaukee     County       Circuit    Court,       Mel     Flanagan,

Judge, entered a default judgment (Findings of Fact, Conclusions

of Law and Judgment) on June 13, 2011.                   The court found that

"the mortgaged premises . . . shall be sold at public auction


     1
       The principal author of the bill creating subsection (2)
of Wis. Stat. § 846.102, Senator Glenn Grothman, explained that
the purpose of the legislation was to shorten the redemption
period in abandonment cases from two months to five weeks and to
permit municipalities to present evidence of abandonment.      He
testified: "The effects of this bipartisan bill will be modest,
but they are an attempt to better balance the needs of
municipalities and responsible homeowners while still protecting
the rights of property owners who may have fallen on hard
times." Legislative Council File for 2011 S.B. 307, Letter from
Sen. Glenn Grothman to Members of the Assembly Committee on
Financial   Institutions    (Feb.   1,   2012),    available   at
http://legis.wisconsin.gov/lc/comtmats/old/11files/sb0307_201112
01084222.pdf.


                                         5
                                                          No.   2013AP544.dtp


under the direction of the sheriff, at any time after three

month(s) from the date of entry of judgment."            (Emphasis added.)

The   court    also   found   "THAT    NO   DEFICIENCY   JUDGMENT   MAY    BE

OBTAINED AGAINST ANY DEFENDANT."            The court determined that the

mortgagor's indebtedness totaled $81,356.59.

      ¶65     The mortgagor made no effort to redeem the property.

In fact, she abandoned the property, according to an affidavit

she filed with the court on November 6, 2012.

      ¶66     On the same date, the mortgagor filed a motion in the

original foreclosure case.            The mortgagor brought the motion

under Wis. Stat. §§ 806.07(g) & (h) and 846.102.                The motion

sought to reopen the foreclosure judgment pursuant to Wis. Stat.

§ 806.07 and to compel the Bank to sell the mortgaged property

"upon the expiration of 5 weeks from the date of entry of the

amended judgment" under Wis. Stat. § 846.102.

      ¶67     As the majority opinion notes, the Milwaukee County

Circuit Court, Jane Carroll, Judge, denied the motion.                    The

court "observed that Wis. Stat. § 846.102 did not specifically
grant it authority to order the Bank to sell the property at a

specific time."       Majority op., ¶12.

      It explained "I can't find anywhere in the statute
      [Wis. Stat. § 846.102] that I have the authority to
      grant the relief that [Carson is] requesting."     The
      court further noted that the statute contemplates that
      the redemption period be elected by the mortgagee, not
      the borrower, and questioned whether a mortgagee could
      be compelled to execute a judgment when someone else
      is seeking the order.    Accordingly, it stated, "I'm
      specifically   finding   that   I   don't   have   the
      authority . . . so the motion is denied on those
      grounds."
Id.
                                       6
                                                                 No.    2013AP544.dtp


    ¶68      The court of appeals reversed.               Bank of New York v.

Carson, 2013 WI App 153, 352 Wis. 2d 205, 841 N.W.2d 573.                        The

court   of    appeals     criticized    the       Bank    (mortgagee)      for   not

maintaining the property.         Id., ¶5.         More important, the court

of appeals concluded that a mortgagor could rely on Wis. Stat.

§ 846.102 to compel a sale of the mortgagor's property:

    We . . . conclude that the trial court erred as a
    matter of law when it concluded that only the Bank
    could elect the five-week abandonment period provided
    in   the    statute.      The   trial    court  could
    have . . . decided   to amend   the   judgment to   a
    foreclosure of an abandoned property as described by
    § 846.102.
Id., ¶12.    The court of appeals added:

         The statutory language also makes clear that the
    trial court did have the power to order the Bank to
    sell   the  property   upon   the  expiration  of  the
    redemption period. . . .    We conclude that the plain
    language of the statute directs the court to ensure
    that an abandoned property is sold without delay, and
    it logically follows that if a party to a foreclosure
    moves the court to order a sale, the court may use its
    contempt authority to do so.
Id., ¶13.

    ¶69      The   majority   affirms       the   court    of   appeals     without
disavowing these pronouncements.             On the contrary, the majority

adopts the method of statutory interpretation used by the court

of appeals, see majority op., ¶¶18, 20, 21, 23, 24, to reach the

following conclusions:

             (1)   "The   plain   language        of   [Wis.    Stat.    § 846.102]

grants the circuit court the authority to order a bank to sell

the property."       Id., ¶20.     "[I]f the court makes a finding of
abandonment then 'judgment shall be entered as provided in s.

                                        7
                                                                  No.       2013AP544.dtp


846.10 except that the sale of such mortgaged premises shall be

made upon the expiration of 5 weeks from the date when such

judgment    is    entered.'          Wis.      Stat.    § 846.102(1)          (emphasis

added)."    Id. (footnote omitted).

            (2)   "The context in which 'shall' is used in Wis.

Stat. § 846.102(1) indicates that the legislature intended it to

be mandatory."      Id., ¶23.

            (3)   "Wis. Stat. § 846.102 does not require action by

the     mortgagee     after       it     has         initiated        a     foreclosure

proceeding. . . .         As   the     court    of    appeals    stated, . . . the

focus of the proceeding is on the condition of the property, not

the mortgagee's preference."            Id., ¶24.

            (4)   "Considering the statute's clear language and its

context, the Bank's argument that it cannot be required to sell

a     property    under    Wis.      Stat.      § 846.102        is       unpersuasive.

Wisconsin Stat. § 846.102 mandates that the court order a sale

of the mortgaged premises if certain conditions are met.                          Those

conditions do not depend on action by the mortgagee alone and
are not dependent on its acquiescence or consent."                        Id., ¶27.

            (5)   "[W]e turn to consider whether a court can also

require a mortgagee to bring a property to sale at a certain

point in time."       Id., ¶28.         "[W]e begin with the words of the

statute. . . .      This language is indicative of the time frame a

court must impose for the sale: 'upon expiration of 5 weeks.'"

Id., ¶29.

            (6)   "[T]he context of Wis. Stat. § 846.102 suggests
that the legislature intended a prompt sale."                     Id., ¶32.         "The

                                          8
                                                                     No.    2013AP544.dtp


legislative intent for a prompt sale is . . . supported by the

legislative history . . . ."             Id., ¶35.

       ¶70   I acknowledge that the majority opinion softens its

holdings by requiring a court acting under Wis. Stat. § 846.102

to order mortgaged property to be "brought to sale within a

reasonable time after the redemption period."                        Id., ¶41.         But

this    statement      is   inconsistent         with    the    majority's       overall

interpretation of the statute.

                                          III

       ¶71   The   majority       opinion       radically      revises     the   law    on

mortgage      foreclosure.           Under        Wisconsin       law,      a    lending

institution like the Bank of New York does not own the property

upon which it holds a mortgage as security for a debt.                                 The

mortgagee's     obvious     goal    is    to    be   repaid     on   its    loan,    with

interest for the use of its money.                       When this goal becomes

infeasible, the mortgagee prudently seeks to minimize its loss.

Sometimes the mortgagee delays the sale of foreclosed property

in the expectation that the circumstances for sale will improve.
The     majority      opinion     substantially         impairs      the    mortgagee's

ability to minimize or mitigate a loss.

       ¶72   The opinion shifts to the circuit court the authority

to set the date for sale of abandoned property.                            It gives the

court authority to disregard the preferences of the mortgagee as

to     the   timing    of   the    sale     when     the    mortgagee        files     for

foreclosure under Wis. Stat. §§ 846.10, 846.101, or 846.102.

       ¶73   Because of this loss in flexibility, mortgagees are
likely to act to protect their interests.                         For instance, the

                                            9
                                                                      No.    2013AP544.dtp


costs     of   borrowing       money   to    finance      residential        real   estate

transactions are likely to go up, and some potential borrowers

will be denied loans altogether.

      ¶74      Under     the     new     regime,         thousands     of     foreclosed

properties statewide may have to be scheduled for sale within a

few months of this decision because they have already been held

by mortgagees without sale for an "unreasonable" period after

foreclosure.

      ¶75      These    consequences        are    not    discussed    by     a    majority

that is a bit too eager to depict mortgage lenders as the source

of the problem.

      ¶76      Knowing what they face if they file for foreclosure

when the timing is not propitious, many mortgagees may choose

not to file foreclosure actions.                   If mortgagees forego filing,

leverage will transfer from mortgagees to non-paying mortgagors.

      ¶77      Still,     some      mortgagors           may   wish     to        extricate

themselves from their continuing ownership responsibilities.

      ¶78      The   majority      attempts       to   preclude   a    mortgagor       from
becoming a plaintiff under Wis. Stat. § 846.102, majority op.,

¶18 n.5, by suggesting that only a mortgagee may initiate an

action under Chapter 846.                This is a correct interpretation of

the   chapter.          However,    it    does     not     account    for    Wis.    Stat.

§ 840.03.

      ¶79      Wisconsin Stat. § 840.01(1) defines the term "interest

in real property."2            The definition implicates those who own or


      2
          Wisconsin Stat. § 840.01(1) reads:

                                                                             (continued)
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hold     title   to   land   (like   Shirley   Carson)    and   those     with

"security interests and liens on land" (like the Bank of New

York).

       ¶80   Wisconsin Stat. § 840.03 then provides:

            Real property remedies.   (1)   Any person having
       an interest in real property may bring an action
       relating to that interest, in which the person may
       demand the following remedies singly, or in any
       combination, or in combination with other remedies not
       listed, unless the use of a remedy is denied in a
       specified situation:

                  (a)   Declaration of interest.

                  (b)   Extinguishment    or      foreclosure        of
                        interest of another.

                  (c)   Partition of interest.

                  (d)   Enforcement of interest.

                  (e)   Judicial rescission of contract.

                  (f)   Specific performance      of     contract   or
                        covenant.

                  (g)   Judicial    sale   of       property        and
                        allocation of proceeds.

                  (h)   Restitution.


             (1) Except as provided in sub. (2), "interest in
       real property" includes estates in, powers under ch.
       702 over, present and future rights to, title to, and
       interests   in   real    property,   including,   without
       limitation by enumeration, security interests and
       liens    on  land,   easements,    profits,   rights   of
       appointees   under   powers,   rights   under   covenants
       running with the land, powers of termination and
       homestead rights.     The interest may be an interest
       that was formerly designated legal or equitable. The
       interest may be surface, subsurface, suprasurface,
       riparian or littoral.


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                       (i)    Judicial conveyance of interest.

                       (j)    Possession.

                       (k)    Immediate physical possession.

                       (l)    Restraint of another's use of, or
                              activities on, or encroachment upon
                              land   in  which plaintiff  has  an
                              interest.

                       (m)    Restraint   of    another's   use   of,
                              activities on, or disposition of land
                              in which plaintiff has no interest; but
                              the use, activity or disposition affect
                              plaintiff's interest.

                       (n)    Restraint of interference                 with    rights
                              in, on or to land.

                       (o)    Damages.

            (2) The indication of the form and kind of
       judgment in a chapter dealing with a particular remedy
       shall not limit the availability of any other remedies
       appropriate to a particular situation.

(Emphasis added.)
       ¶81   Section         840.03   includes            in    its     listed     remedies

"Judicial      sale      of     property"          and     "Judicial         conveyance    of

interest."        Mortgagors may seek to secure one of these remedies
to escape the responsibilities of ownership.

       ¶82   As    I    read    the   statute,           the   owner    of    property    may

"bring an action" for a judicial sale or a judicial conveyance

of interest.        Although a mortgagor may not be able to serve as

plaintiff in a foreclosure action under any of the foreclosure

statutes,    e.g.,       Wis.    Stat.   §§ 846.10,            846.101,       846.102,    and

846.103, the mortgagor may be able to invoke the new principles

this   court      has    discovered      in        Wis.    Stat.      § 846.102    when    it



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"brings an action" for judicial sale or conveyance of interest

under Wis. Stat. § 840.03(1).

       ¶83    Wisconsin Stat. § 840.03(1) has been part of Wisconsin

law for 40 years.       See § 16, Chapter 189, Laws of 1973 (creating

Wis. Stat. § 840.03(1) (1974)).                 It has been interpreted as

creating substantive rights.           SJ Props. Suites v. Specialty Fin.

Grp., LLC, 864 F. Supp. 2d 776 (E.D. Wis. 2012).                     Nonetheless, a

mortgagor     seeking   the    sale      of    his   or    her    property   or    the

conveyance of his or her property under Wis. Stat. § 840.03(1)

would heretofore have been required to show that the mortgagor

was entitled equitably to this remedy, inasmuch as it is clear

that a defaulting mortgagor does not have the same powers and

prerogatives as a mortgagee under Wis. Stat. § 846.102.

       ¶84    "An action to foreclose a mortgage is equitable in

nature."      Wis. Brick & Block Corp. v. Vogel, 54 Wis. 2d 321,

327,    195    N.W.2d 664     (1972)      (citing         Frick    v.    Howard,    23

Wis. 2d 86, 96, 126 N.W.2d 619 (1964)); see also Harbor Credit

Union   v.    Samp,   2011    WI   App    40,    ¶19,      332    Wis. 2d 214,     796
N.W.2d 813; JP Morgan Chase Bank, NA v. Green, 2008 WI App 78,

¶11, 311 Wis. 2d 715, 753 N.W.2d 536; First Fin. Sav. Ass'n v.

Spranger, 156 Wis. 2d 440, 444, 456 N.W.2d 897 (Ct. App. 1990).

This equity prevails throughout the proceedings.                         GMAC Mortg.

Corp. v. Gisvold, 215 Wis. 2d 459, 480, 572 N.W.2d 466 (1998).

The court's discretion should be exercised so that "no injustice

shall be done to any of the parties."                Strong v. Catton, 1 Wis.

408, 424 (1853).



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       ¶85     Considering equity, a mortgagee may want to delay the

sale     of    mortgaged        property      that      has     been    abandoned          for

legitimate economic reasons.               Admittedly, the mortgagee might be

forced to recognize that such a delay will constitute a burden

on     the     mortgagor        in    terms       of     maintenance          and     taxes.

Consequently, it is not inherently unreasonable for a mortgagor

to seek relief from such a burden, inasmuch as it is unrealistic

to expect that a mortgagor will properly maintain and pay the

taxes on property it has abandoned.                     At the same time, however,

if    the     mortgagee    is    expected        to    assume     responsibility            for

abandoned       property,       the   mortgagee        must     be   given         reasonable

options, even if unpalatable, rather than be forced into an

unwanted sale without the protection of the equitable principles

upon which mortgage foreclosures rest.

       ¶86     The majority opinion alters these principles by its

interpretation of Wis. Stat. § 846.102.                       It forces prompt public

sales        despite   the       objection        of     the     mortgagee.                This

interpretation of Wis. Stat. § 846.102 does not comport with the
statute's language or its legislative history and will often be

inequitable       to      the    mortgagee.              Even    a     mortgagee           that

conscientiously maintains abandoned property may be forced to

sell it quickly at the direction of the court.

       ¶87     I agree that the mortgagor here is entitled to seek

the     statutorily       recognized       remedy       of    "sale,"        but    only    as

provided under Wis. Stat. § 840.03(1)(g), prior to the court's

mistaken       interpretation         of   Wis.       Stat.    § 846.102.            For    the
reasons set forth, I respectfully concur.

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    ¶88     I   am    authorized   to       state   that    Justice     ANNETTE

KINGSLAND   ZIEGLER    and   Justice    MICHAEL     J.   GABLEMAN    join   this

concurrence.




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