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Bank One Wisconsin v. Kahl11/12/2002
. Bank One Wisconsin, f/k/a Bank One Milwaukee, appeals an order reinstating a foreclosure judgment entered against Robert and Kay Kahl, obtained upon default. Believing there was sufficient equity in the Kahls' home to satisfy the debt, Bank One did not seek a deficiency judgment. After the court entered the default judgment, Bank One learned the terms of a senior mortgage on the Kahls' home greatly reduced the believed amount of equity. Eighteen months later, Bank One moved to vacate the judgment and the trial court granted the motion. The Kahls then moved to reverse the order vacating the judgment, arguing Bank One had not brought the motion in a timely manner. The court agreed and reversed its order. It then reentered the original foreclosure judgment because Bank One had waited more than a year before seeking relief from the foreclosure, contrary to certain provisions of Wis. Stat. § 806.07.
. On appeal, Bank One argues it had a statutory right to dismiss the foreclosure judgment because the Kahls never filed a responsive pleading under Wis. Stat. § 805.04, and the court erred by applying Wis. Stat. § 806.07. In the alternative, it contends the court should have vacated the foreclosure judgment under other provisions of § 806.07 not subject to the one-year time limit.
. We determine Bank One did not have a statutory right to dismiss the foreclosure judgment. In addition, we conclude the trial court properly determined Bank One was barred from seeking relief from the judgment because it waited more than a year to seek that relief. Therefore, we affirm the trial court's order reinstating the foreclosure judgment.
BACKGROUND
. The facts are undisputed. Bank One began foreclosure proceedings against the Kahls in August 1999. Bank One held a $30,000 mortgage on the Kahls' home, junior to a United States Department of Agriculture mortgage with a stated value of $49,000. Bank One did not seek a deficiency judgment, believing there was enough equity in the Kahls' home, valued at $80,000. The Kahls did not file any responsive pleadings or otherwise appear or contest the foreclosure. The court granted Bank One a default foreclosure judgment on November 3, 1999.
. After the court entered judgment, Bank One learned the payoff amount of the USDA mortgage was more than $71,000. On May 21, 2001, Bank One petitioned the trial court to vacate the judgment and dismiss the foreclosure action so that the Bank could refile and seek a deficiency judgment. The court granted the motion.
. In June 2001, the Kahls filed a motion to set aside the order, arguing Bank One's motion was untimely under Wis. Stat. § 806.07(1)(a) and (1)(c) because the bank had waited more than a year to seek relief. Bank One argued it had a right to dismiss the judgment under Wis. Stat. § 805.04(1) because the Kahls had never filed a responsive pleading. In the alternative, the bank argued if § 806.07 applied, the court should resolve the matter under subsections (1)(g) and (1)(h), which do not have the one-year limitation. The court granted the Kahls' motion.
. Bank One filed a motion to reconsider. The trial court denied the motion, determining Wis. Stat. § 806.07, not Wis. Stat. § 805.04(1), applied. It further concluded that § 806.07(1)(a) and (1)(c) applied and therefore Bank One was required to have filed its motion within a year of the original judgment. Finally, the court refused to grant relief from the judgment under subsections (1)(g) and (1)(h). Bank One appeals.
DISCUSSION
. Bank One first argues that Wis. Stat. § 805.04(1) grants it an absolute right to dismiss the foreclosure judgment without the court's approval. S
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