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Of Cars and Dwellings: Supreme Court of Wisconsin Expands the Meaning of “Dwelling,” Jeopardizing Vehicle Repossessions in the State

By Jessie Manzewitsch on January 25, 2022
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Of Cars and Dwellings: Supreme Court of Wisconsin Expands the Meaning of “Dwelling,” Jeopardizing Vehicle Repossessions in the StateAs the new year turns the page, the Supreme Court of Wisconsin, in Duncan v. Asset Recovery Specialists, Inc., held that a repo agency violated the Wisconsin Consumer Act by repossessing a vehicle parked in the borrower’s apartment building garage when the garage door was left open.

The borrower lived in a multi-story, multi-unit apartment building in which the ground floor was the building’s parking garage. When the recovery agents arrived at the borrower’s address, they found the garage door open. The recovery agents entered the garage, located the car, and towed it away. Neither the borrower nor employees of the apartment building interacted with the recovery agents.

Subsequently, the borrower sued the recovery agency and the lender alleging, among other things, the vehicle repossession was a violation of Section 425.206 (2)(b) of the Wisconsin Consumer Act, which prohibits merchants, when taking possession of collateral, from breaching the peace or “enter[ing] a dwelling used by the customer as a residence except at the voluntary request of a customer.” After engaging in a lengthy exercise of statutory construction, the court concluded that, for purposes of Section 425.206 (2)(b), “dwelling” extends to the parking garage, “because it is located in the building.”

This ruling may severely limit the ability of a creditor to obtain possession of collateral in the State of Wisconsin. Up until this decision, it was fairly well understood that a vehicle parked in an open or unlocked parking garage, whether single family or multi-unit, could be legally repossessed, all other things being equal. One issue now facing the automobile finance sector is whether this holding will be expanded to other contexts in Wisconsin and whether this holding will gain traction in other jurisdictions. The court leaves the door open for future caselaw to further extend the definition of “dwelling” to potentially incorporate the broader definition provided by the Wisconsin Administrative Code, which includes “any garage, shed, barn or other building on the premises whether attached or unattached,” into Section 426.104(1)(e). Only time and future litigation will tell what effect this constraint on repossession will have on the automobile finance industry.

Photo of Jessie Manzewitsch Jessie Manzewitsch

Jessie Manzewitsch is an associate in the Banking and Financial Services Practice Group.

Prior to joining Bradley, Jessie was a fall clerk for the Hon. David Hittner of the United States District Court for Southern District of Texas. Jessie received a J.D. (…

Jessie Manzewitsch is an associate in the Banking and Financial Services Practice Group.

Prior to joining Bradley, Jessie was a fall clerk for the Hon. David Hittner of the United States District Court for Southern District of Texas. Jessie received a J.D. (summa cum laude) from the University of Houston Law Center, where she was involved with the Houston Journal of International Law and Labor & Employment Law Society. She also participated in the University of Houston’s Civil Law Clinical program.

She has a Bachelor of Law degree from Universidad Católica de Argentina. While in Argentina, she clerked for the Nicholson & Cano law firm in the tax law department.

Read more about Jessie ManzewitschEmail
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  • Posted in:
    Business and Commercial, Real Estate & Construction
  • Blog:
    Financial Services Perspectives
  • Organization:
    Bradley Arant Boult Cummings LLP
  • Article: View Original Source

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