Wisconsin

WI ST 422.501
Subchapter V. Credit Services Organizations

422.501. Definitions

In this subchapter:

(1) "Buyer" means a natural person or customer who is solicited to purchase or who purchases the services of a credit services organization.

(1m) "Consumer reporting agency" has the meaning given in 15 USC 1681a(f).

(2)(a) "Credit services organization" means a person or merchant who, with respect to the extension of credit by others, sells, provides or performs, or represents that the person will sell, provide or perform, any of the following services in return for the payment of money or for other valuable consideration:

1. Improving a buyer's credit record, credit history or credit rating.

2. Arranging for or obtaining an extension of credit for a buyer.

3. Providing advice or assistance to a buyer with regard to subd. 1 or 2.

(b) "Credit services organization" does not include any of the following:

1. A person organized, chartered or holding a license or authorization certificate to make loans or extensions of credit pursuant to the laws of this state or the United States and who is subject to regulation and supervision by an official or agency of this state or the United States.

2. A bank or savings and loan association whose deposits or accounts are insured by the federal deposit insurance corporation, or a credit union whose deposits or accounts are insured by the national credit union administration.

3. A nonprofit organization described under section 501(c)(3) of the internal revenue code and exempt from taxation under section 501(a) of the internal revenue code.

4. A person licensed as an adjustment service company under s. 218.02 if the person is acting within the course and scope of that license.

5. A person licensed as a real estate broker or salesperson under ch. 452 if the person is acting within the course and scope of that license.

6. A person licensed to practice law in this state if the person is rendering services within the course and scope of his or her practice as an attorney at law.

7. A broker-dealer or agent licensed under s. 551.31 if the broker-dealer or agent is acting within the course and scope of that license.

8. A person registered as a mortgage banker, loan originator or mortgage broker under s. 224.72 if the person is acting within the course and scope of that registration.

9. A consumer reporting agency, if the consumer reporting agency is acting within the scope of assembling or evaluating consumer credit information on consumers for the purpose of furnishing consumer reports, as defined in 15 USC 1681a(d), to 3rd parties.

(3) "Extension of credit" means the right to defer payment of debt or to incur debt and defer its payment, that is offered or granted for debt that is incurred primarily for personal, family or household purposes.

422.502. Registration requirements

(1) A person may not act as a credit services organization unless the person has been issued a certificate of registration from the administrator and the person has complied with the bond or letter of credit requirements under sub. (3).

(2) A person desiring to act as a credit services organization shall apply to the administrator for a certificate of registration on a form prescribed by the administrator and shall pay the administrator a registration fee of $100.

(3)(a) A person desiring to act as a credit services organization shall obtain a surety bond that is issued by a surety company admitted to do business in this state or an irrevocable letter of credit from a federally insured bank or savings and loan association located in this state. The bond or letter of credit shall be in an amount equal to $25,000.

(b) The credit services organization shall file a copy of the bond or letter of credit with the administrator.

(c) The bond or letter of credit shall be in favor of this state for the benefit of any person who is damaged by a violation of this subchapter. The bond or letter of credit shall also be in favor of any person damaged by a violation of this subchapter.

(d) A person claiming against the bond or letter of credit for a violation of this subchapter may maintain an action at law against the credit services organization and against the surety or financial institution. The surety or financial institution may be liable only for actual damages and not for punitive damages. The aggregate liability of the surety or financial institution to all persons damaged by a credit services organization's violation of this subchapter may not exceed the amount of the bond or letter of credit.

(4) A certificate of registration as a credit services organization expires on December 1 of the even-numbered year after issuance. A credit services organization may renew a certificate of registration by submitting to the administrator a renewal application and a $100 renewal fee on or before the expiration date of the existing certificate of registration. A credit services organization shall refile a bond or letter of credit that satisfies sub. (3) as part of the renewal application.

422.503. Prohibited activities

(1) A credit services organization, and its salespersons, agents and representatives who offer or sell the services of the credit services organization, may not do any of the following:

(a) Charge or receive any money or other valuable consideration solely for referral of the buyer to a merchant who will or may extend credit to the buyer, if the credit extended to the buyer is upon substantially the same terms as is credit that is available to the general public.

(b) Make, or counsel or advise any buyer to make, any statement which is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, to a consumer reporting agency or to any person who has extended credit to a buyer or to whom a buyer is applying for an extension of credit, with respect to a buyer's credit worthiness, credit standing or credit capacity.

(c) Make or use any untrue or misleading representations in the offer or sale of the services of the credit services organization or engage, directly or indirectly, in any act, practice or course of business that operates or would operate as a fraud or deception upon any person in connection with the offer or sale of the services of a credit services organization.

(2) A violation of this section is subject to s. 425.305.

422.504. Information statement

(1) Before the execution of a contract or agreement between the buyer and a credit services organization or before the credit services organization receives from the buyer any money or other valuable consideration, the credit services organization shall provide the buyer a written statement that includes all of the information required under sub. (2). The credit services organization shall maintain for a period of 2 years an exact copy of the statement that is signed by the buyer to acknowledge receipt of the statement.

(2) The information statement under sub. (1) shall include all of the following information:

(a) Notice of the buyer's right to review any file on the buyer maintained by a consumer reporting agency; the buyer's right to obtain a copy of that file; the approximate price the buyer may be charged by the consumer reporting agency for a copy of the file; and the buyer's right to obtain a copy of the buyer's file free of charge from the consumer reporting agency if the buyer requests the copy within 30 days after the buyer receives notice of a denial of credit.

(b) Notice of the buyer's right to dispute the completeness or accuracy of any item contained in any file on the buyer maintained by a consumer reporting agency.

(c) A description of the services to be performed by the credit services organization for or on behalf of the buyer and the total amount the buyer will be charged for the services.

(d) Notice of the buyer's right to proceed against the bond or letter of credit obtained by the credit services organization, a description of procedures that the buyer is to follow to proceed against the bond or letter of credit, and the name and address of the surety company that issued the bond or the name and address of the financial institution that issued the letter of credit.

(3) A violation of this section is subject to s. 425.305.

422.505. Contracts

(1) Every contract between a buyer and a credit services organization for the purchase of the services of the credit services organization shall be in writing, shall be dated and shall be signed by the buyer. The contract shall include all of the following:

(a) A conspicuous statement, in not less than 10-point boldface type and in immediate proximity to the space reserved for the signature of the buyer, as follows: "YOU, THE BUYER, MAY CANCEL THIS CONTRACT AT ANY TIME BEFORE MIDNIGHT OF THE 5TH DAY AFTER THE DATE OF THE TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT."

(b) The terms and conditions of payment, including the total of all payments to be made by the buyer, whether to the credit services organization or to another person.

(c) A description of the services to be performed by the credit services organization for or on behalf of the buyer, including all guarantees or promises of full or partial refunds, and the estimated date by which such services are to be performed or the estimated length of time for performing such services.

(d) The credit services organization's principal business address and the name and address of its agent in this state, other than the department of financial institutions, who is authorized to receive service of process.

(e) A conspicuous statement, in not less than 8-point boldface type, as follows: "THIS CREDIT SERVICES ORGANIZATION IS REGISTERED BY THE DEPARTMENT OF FINANCIAL INSTITUTIONS at ... (insert address)."

(f) Any disclosures required under subch. III.

(2)(a) The contract shall be accompanied by a completed form in duplicate, captioned "NOTICE OF CANCELLATION", which shall be attached to the contract and easily detachable, and which shall contain the following statement in not less than 10-point type and written in the same language as used in the contract:

NOTICE OF CANCELLATION

You may cancel this contract, without any penalty or obligation, within 5 days after the date on which the contract is signed.

If you cancel, any payment made by you under this contract will be returned within 15 days following receipt by .......... (name of credit services organization) of your cancellation notice.

To cancel this contract, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice, to .......... (name of credit services organization) at .......... (address of credit services organization), .......... (place of business, if different from address) not later than midnight .......... (date). I hereby cancel this transaction.

...................
(Date)
...................
(Buyer's signature)

(b) A copy of the fully completed contract and any other document the credit services organization requires the buyer to sign shall be given to the buyer at the time the contract or document is signed.

(3) A credit services organization's breach of a contract under this section or of any obligation arising from such a contract is a violation of this subchapter.

(4) A violation of this section is subject to s. 425.305.

422.506. Waiver

(1) A waiver by a buyer of any provision of this subchapter shall be void and unenforceable. An attempt by a credit services organization to have a buyer waive any right under this subchapter is a violation of this subchapter.

(2) A violation of this section is subject to s. 425.305.

Case Law

I identified one case construing the Act.

Premium Air, Inc. v. Luchinski, Slip Copy, 2007 WL 1345839 ( Wis. App., 2007). Furnace company that facilitates the extension of credit for its customers is a credit services organization under the Act. The furnace company argued that it charged no fee for its service, but the court found that the money the company received from furnace sales was adequate compensation to bring it within the scope of the Act. Court concluded that the consumer was freed of all obligations to pay under the contract and was entitled to award of attorneys fees and costs.

Premium Air, Inc. v. Luchinski, Slip Copy, 2007 WL 1345839 ( Wis. App., 2007).

Slip Copy, 2007 WL 1345839 (Wis.App.)
Only the Westlaw citation is currently available.

NOTICE: FINAL PUBLICATION DECISION PENDING. SEE W.S.A. 809.23.
Court of Appeals of Wisconsin .

PREMIUM AIR, INC., d/b/a One Hour Heating & Air Conditioning, Plaintiff-
Appellant,
v.
Gerald LUCHINSKI and Tammy Luchinski, Defendants-Respondents.
No. 2006AP2976.
May 9, 2007.

Appeal from a judgment of the circuit court for Calumet County : Donald A. Poppy, Judge. Affirmed and cause remanded.

1 NETTESHEIM, J. [FN1]
FN1. This appeal is decided by one judge pursuant to Wis. Stat. §

752.31(2)(a) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.

This case involves various statutes in the Wisconsin Consumer Act, Wis. Stat. ch. 422. Premium Air, Inc., d/b/a One Hour Heating & Air Conditioning, filed a small claims action against Gerald and Tammy Luchinski. The Luchinskis had not paid for a new furnace One Hour Heating installed and refused the high-interest financing a One Hour Heating employee fraudulently arranged for them. The trial court found that (1) One Hour Heating was a "credit services organization" within the meaning of Wis. Stat. § 422.503; (2) its fraud entitled the Luchinskis to retain the furnace without having to pay for it, pursuant to Wis. Stat. § 425.305; and (3) under Wis. Stat. § 425.308, the Luchinskis could recover their attorney fees for defending the action. We affirm the judgment and remand for a determination of reasonable appellate attorney fees.

2 The facts are undisputed. One Hour Heating sells and services heating, ventilation and air conditioning equipment. On November 28, 2005, the Luchinskis signed a contract with One Hour Heating, through one of its salesmen, to have a new furnace installed for $4993. The Luchinskis did not have the money to pay for the furnace and intended to finance the entire amount. In line with One Hour Heating's common practice of assisting its potential customers to obtain financing, the salesman helped them fill out a credit application. He informed the Luchinskis that the finance charge would be 9 1/4 %. One Hour Heating installed the furnace the next day.

3 Two finance companies subsequently denied the Luchinskis' application. The salesman then submitted an application to a third finance company, Carmel Financial Corporation. One Hour Heating stipulated at trial that its salesman forged the Luchinskis' names on the necessary documents. When the Luchinskis learned of the forgery, Gerald told One Hour Heating that "they could pick up their furnace, and that [he] wasn't doing business with them." [FN2] One Hour Heating advised the Luchinskis to wait to see what Carmel would do. Carmel agreed to provide financing, but at 17.9%. The Luchinskis refused to finance through Carmel , and made no payments to One Hour Heating.

FN2. When One Hour Heating learned of the forgery, it immediately fired the salesman and filed a complaint with the sheriff's department.

4 One Hour Heating responded with this small claims action against the Luchinskis, who admitted not paying for the furnace, and claimed as an affirmative defense that One Hour Heating is a credit services organization that violated Wis. Stat. § 422.503 through its employee's fraud. Accordingly, the Luchinskis asserted that the transaction was void under Wis. Stat. § 425.305, they could retain the furnace without obligation, and, under Wis. Stat. § 425.308, they were additionally entitled to recover their costs and attorney fees.

5 The Luchinskis moved for judgment on the pleadings, which the court took up on the day of trial. The court directed the Luchinskis' attorney to read Footville State Bank v. Harvell, 146 Wis.2d 524, 432 N.W.2d 122 (Ct.App.1988), which it believed was on all fours with the case at bar, and "[t]hen I want you to go out and talk to opposing counsel. Then you should settle this case." Because the parties already had stipulated that the furnace's cost was its reasonable value, the court recommended they discuss "what amount of attorney fees should be offset against the furnace."

6 When the parties returned, they advised the court that they still disagreed, and the trial proceeded. The Luchinskis persuaded the court that Footville State Bank was not dispositive because it involved a different consumer protection statute which compelled a different result. In its final ruling, the court found that One Hour Heating is a credit services organization. It also found that the conduct of the salesman, One Hour Heating's agent, operated as a fraud upon the Luchinskis by misrepresenting the finance charge and upon Carmel by misrepresenting the authenticity of the signatures, in violation of Wis. Stat. § 422.503(1)(c). The court acknowledged that One Hour Heating, too, was wronged by its "rogue employee," but observed that consumer protection laws weigh in favor of consumers. Finally, the court found that One Hour Heating also violated Wis. Stat. § 422.505(2)(a) because the Carmel contract contained a three-day, rather than the required five-day, cancellation period and because the notice of cancellation was not provided along with the forged consumer credit document.

7 The trial court concluded that the violations triggered the remedies available through Wis. Stat. § 425.305 entitling the Luchinskis to retain the goods and services provided without obligation to pay for them. It also found them entitled to reasonable attorney fees and, at a later hearing on the matter, granted them the amount they sought. One Hour Heating appeals. [FN3]

FN3. The notice of appeal indicates that One Hour Heating appeals only from the attorney fee award portion of the judgment. The record reveals that before the appeal reached this court, the parties corresponded with each other about whether the appeal encompassed the entire judgment or was limited to attorney fees. Evidently they came to some agreement because neither raises the scope of our review as an issue on appeal. Therefore, since technical defects in a notice of appeal do not deprive us of jurisdiction and the Luchinskis have participated without objection, any defect is waived. See Wis. Stat. § 807.07(1) and Wis. Stat. Rule 809.83(2).

8 One Hour Heating challenges the finding that it is a "credit services organization" under Wis. Stat. § 422.501(2)(a), which provides:

"Credit services organization" means a person or merchant who, with respect to the extension of credit by others, sells, provides or performs, or represents that the person will sell, provide or perform, any of the following services in return for the payment of money or for other valuable consideration:

1. Improving a buyer's credit record, credit history or credit rating.
2. Arranging for or obtaining an extension of credit for a buyer.
3. Providing advice or assistance to a buyer with regard to subd. 1. or 2.
The construction of a statute in relation to a given set of facts presents a question of law, which we review de novo. Turner v. Gene Dencker Buick-Pontiac, Inc., 2001 WI App 28, 13, 240 Wis.2d 385, 623 N.W.2d 151.

9 The trial court found that One Hour Heating is a credit services organization under Wis. Stat. § 422.501(2)(a) because it is a merchant which arranges the extension of credit for a buyer. One Hour Heating admits that it routinely helps potential customers arrange financing, but argues that it does not do so in return for money or other valuable consideration. We disagree. The money it receives from furnace sales via the financing arrangements it facilitates is the valuable consideration. The Luchinskis never intended to pay for the furnace in cash. We agree with the trial court that One Hour Heating is a credit services organization under § 422.501(2)(a).

10 We next examine whether One Hour Heating violated Wis. Stat. § 422.503, which provides in relevant part:

422.503 Prohibited activities. (1) A credit services organization, and its salespersons, agents and representatives who offer or sell the services of the credit services organization, may not do any of the following:

11 One Hour Heating does not dispute that its salesman's forgery and misstatement of the finance charge breached Wis. Stat. § 422.503(1)(c), but asks us not to apply subsec. (2). That subsection triggers Wis. Stat. § 425.305, which allows the Luchinskis to retain "the goods, services or money received pursuant to the transaction without obligation to pay any amount." Instead, One Hour Heating urges us to apply the analysis found in Footville State Bank.

12 We agree with the trial court and the Luchinskis that, while factually similar, Footville State Bank does not control this case. There, Morris Harvell and his son Gus farmed together. Footville State Bank, 146 Wis.2d at 528. Gus applied for credit and, without Morris' request or signature, made and signed separate applications for Morris. Id. Gus' purchases were billed half to him and half to Morris. Id. Gus later declared bankruptcy, discharging his debts. Id. When Morris failed to make payments on his own account, the bank sued him. Id. at 528-29. The bank's failure to furnish him with copies of documents evidencing the obligation Gus had arranged in Morris' name ultimately was held to have violated Wis. Stat. § 422.302(3). Footville State Bank, 146 Wis.2d at 529-30.

13 As the Luchinskis do here, Morris argued that his entire obligation was unenforceable under Wis. Stat. § 425.305(1). Footville State Bank, 146 Wis.2d at 535. The supreme court disagreed, holding that a violation of Wis. Stat. § 422.302(3) does not invoke § 425.305, and emphasizing that § 425.305 applies only to those sections that expressly say so. Footville State Bank, 146 Wis.2d at 535. [FN4] The court held that since nothing in the Wisconsin Consumer Act directed otherwise, principles of law and equity prevented Morris from escaping all liability for the debts incurred in his name. Id. at 536. The court also considered whether under Wis. Stat. § 425.107 any aspect of the consumer credit transaction was unconscionable such that it should not be enforced. Footville State Bank, 146 Wis.2d at 537.

FN4. Wisconsin Stat. § 422.503, the statute now at issue, was not among the statutory sections the court recited in Footville State Bank v. Harvell, 146 Wis.2d 524, 535, 432 N.W.2d 122 (Ct.App.1988), because the statute did not become effective until nearly four years later. See 1991 Wis. Act 244, §§ 1, 5.

14 Equitable principles do not drive the case before us. Wisconsin Stat. § 422.503(2) unequivocally triggers Wis. Stat . § 425.305 which just as unequivocally voids the transaction freeing a consumer from all obligation to pay. We decline One Hour Heating's invitation to evaluate unconscionability when the statutes are clear and the trial court made no findings in that regard.

15 Finally, our decision to affirm is reinforced by the additional violations involving the notice of cancellation. The trial court found that, contrary to Wis. Stat. § 422.505(1)(a) and (2), the notice of cancellation provided only a three-day right to cancel instead of the statutory five, and that this defective notice was not given at the same time as the fraudulently executed consumer credit document. One Hour Heating does not appeal this ruling and issues not briefed generally are deemed abandoned. See Plourde ex rel. State v. Habhegger, 2006 WI App 147,

1 n. 2, 294 Wis.2d 746, 720 N.W.2d 130. We raise it to underscore that if One Hour Heating disagrees that it is a credit services organization, § 422.505 violations also are subject to Wis. Stat. § 425.305, commanding the same result.

16 Next, the Luchinskis argue that their right to attorney fees includes reasonable appellate attorney fees. We agree pursuant to First Wisconsin National Bank v. Nicolaou, 113 Wis.2d 524, 335 N.W.2d 390 (1983). A customer who prevails in an action arising out of a consumer transaction shall recover a reasonable amount for attorney fees. Wis. Stat. § 425.308. The use of the word "shall" indicates the attorney fee award is mandatory. Nicolaou, 113 Wis.2d at 536. Because the Luchinskis prevailed on the credit services organization issue, they are entitled as a matter of law to recover reasonable attorney fees expended in litigating it. See id. This includes reasonable fees involved in pursuing the appeal. See id. at 541; Footville State Bank, 146 Wis.2d at 540.

17 An attorney fee award "shall be in an amount sufficient to compensate attorneys representing customers in actions arising from consumer transactions." Wis. Stat. § 425.308(2). The award is mandatory, but the precise amount is left to the trial court's discretion. Nicolaou, 113 Wis.2d at 537; see § 425.308(2)(a)-(f). That court is best situated to consider the matter of attorney fees. Nicolaou, 113 Wis.2d at 537; see also Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112,

22, 275 Wis.2d 1, 683 N.W.2d 58. We therefore affirm the judgment and remand to the trial court for a determination of the Luchinski's reasonable appellate attorney fees.

Judgment affirmed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
Wis.App.,2007.
Premium Air, Inc. v. Luchinski
Slip Copy, 2007 WL 1345839 (Wis.App.)

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