How is it possible that it took from 1848, when Wisconsin became a state, to 1982, for Wisconsin courts to determine whether foreclosure judgments were final orders appealable as of right?
Remember: foreclosure law was a relatively sleepy backwater of the law for years and years – centuries – before heating up in the first decade of the 21st century.
Which isn’t to say there was no litigation. Shuput is an early example of the kinds of litigation that would be spawned 25 years later, as the parties bickered over the finality of judgments, whether their attorneys were competent, the delay in the case, and the effect of a stipulation trying to resolve the case.
Shuput sold the Lauers a liquor business, and the Lauers defaulted on the purchase. So Shuput sued for foreclosure, apparently having retained a second lien on the property, and the Lauers counterclaimed for misrepresentation. Sounds familiar, right?
Then, the parties entered into a stipulation which had the Lauers waive their claims while Shuput agreed to reinstate the loan, with a waiver of further proceedings if there was another default. Sounds familiar-er, doesn’t it?
Of course, the Lauers defaulted and Shuput foreclosed and got his judgment. The Lauers then filed a motion to reopen but did not otherwise contest the confirmation of the sale, and when the circuit court denied the motion and confirmed the sale, they appealed, and won – the Court of Appeals reversed, but the Supreme Court of Wisconsin reversed again.
The key issue was whether the Shuputs had to file an appeal from the judgment of foreclosure; holding that the judgment was a final judgment, the Supreme Court said yes, and noted that after a judgment of foreclosure, the only thing that remains are ministerial, executory duties. The court looked to the historical nature of strict foreclosure, where the judgment transferred property immediately upon expiration of the redemption period, and held that appeals from judgments of foreclosure need to be made from that judgment, no the confirmation of sale.
En route, the Court also noted that confirmations of sale were the final steps in foreclosures, with the circuit court retaining its equitable authority until then, and also made an interesting digression into the law of motions to reopen, noting that the rule on appealing a motion to reopen is that the motion must present something that was not before the circuit court prior to the judgment. Here, the Lauers’ motion to reopen argued excusable neglect based on the failures of their prior lawyer, misrepresentation, and equitable authority under 806.07(1)(g), Wis. Stats. The Supreme Court found that the latter was insufficiently explained, and the misrepresentation was presented to the court prior to judgment, so neither of those were grounds for appeal – and the only question then was whether the circuit court had erroneously exercised its discretion in denying a reopening based on prior counsel’s failures. (On that note, the court held the circuit court was correct – and noted that the court had given the Lauers a chance to prove their case but that the lawyer had said he couldn’t be ready in two weeks. The circuit court’s ruling on that issue is worth reading, and is quoted in the opinion:
"The motion is denied. You had people come in time and time again, this thing has gone on with substitute attorneys and criticize prior counsel. You say you're set to come in here and offer testimony and verify it, I give you a chance to prove it; and you want to delay. In other words, you're telling me you're not ready.... You've had all kinds of opportunities. You're the second or third attorney, and we've had nothing but motions."