Duncan v. Asset Recovery Specialists, Inc.

Decision Date06 January 2022
Docket NumberNo. 2019AP1365,2019AP1365
Citation400 Wis.2d 1,2022 WI 1,968 N.W.2d 661
Parties Danelle DUNCAN, Plaintiff-Appellant, v. ASSET RECOVERY SPECIALISTS, INC., Greg Strandlie and Wells Fargo Bank, N.A., Defendants-Respondents-Petitioners.
CourtWisconsin Supreme Court

For the defendants-respondents-petitioners, there were briefs filed by William W. Ehrke, Micaela Haggenjos, and Crivello Carlson S.C., Milwaukee. There was an oral argument by William W. Ehrke.

For the plaintiff-appellant, there was a brief filed by Briane F. Pagel and Lawton & Cates, S.C., Madison. There was an oral argument by Briane F. Pagel.

An amicus curiae brief was filed on behalf of Wisconsin Bankers Association by James E. Bartzen and Boardman & Clark LLP, Madison.

An amicus curiae brief was filed on behalf of The Wisconsin Credit Union League and American Financial Services Association by Lisa M. Lawless and Husch Blackwell LLP, Milwaukee; and Marci V. Kawski, Lauren C. Capitini and Husch Blackwell LLP, Madison.

DALLET, J., delivered the majority opinion of the Court with respect to all parts except ¶¶29, 31-34, in which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined, and an opinion with respect to ¶¶29, 31-34, in which ANN WALSH BRADLEY and HAGEDORN, JJ., joined. KAROFSKY, J., filed a concurring opinion. ROGGENSACK, J., filed a dissenting opinion in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.


¶1 Danelle Duncan left her car in her parking spot in the garage on the ground floor of her apartment building. When she returned a short time later, the car was gone. She later learned that Defendants——Asset Recovery Specialists, Inc.; Wells Fargo Bank, N.A.; and Greg Strandlie——had entered the garage without her consent and repossessed the car.

¶2 Duncan alleges that Defendants violated the Wisconsin Consumer Act by "[e]ntering a dwelling used by the customer as a residence except at the voluntary request of a customer" during the repossession. See Wis. Stat. § 425.206(2)(b) (2017-18).1 We agree and hold that "dwelling used by the customer as a residence" in § 425.206(2)(b) includes a garage attached to the residential building in which the customer lives. In her complaint, Duncan also alleged that Defendants' conduct during and after the repossession was unconscionable in violation of Wis. Stat. § 425.107. We hold that claims of unconscionability under § 425.107 are available only in "actions or other proceedings brought by a creditor to enforce rights arising from consumer credit transactions," see Wis. Stat. § 425.102, and that a non-judicial repossession under § 425.206(1)(d), like the one Defendants performed in this case, is not such an action or other proceeding. As a result, Duncan's unconscionability claim must be dismissed. We therefore affirm the decision of the court of appeals, as modified by our conclusion on unconscionability, and remand to the circuit court for further proceedings.


¶3 Duncan bought her car from a dealership and financed the purchase with a loan. The loan, which created a security interest in the car, was later assigned to Wells Fargo Bank. After Duncan defaulted on the loan, the Wisconsin Consumer Act (Wis. Stat. chs. 421–27) provided the bank with two ways to take possession of the car. It could either obtain a judgment for return of the car by filing a replevin action under Wis. Stat. § 425.205 or follow the statutory process for a nonjudicial repossession under Wis. Stat. §§ 425.205(1g)(a) and 425.206(1)(d). Wells Fargo pursued the latter option,2 and hired Asset Recovery Specialists, owned by Greg Strandlie, to repossess Duncan's car.

¶4 At that time, Duncan lived in a multi-story, multi-unit apartment building. The ground floor of the building is made up entirely of parking for residents and includes at least 56 parking spaces. Duncan leased a parking space in the garage under an agreement separate from her apartment lease. To access the residential floors and apartments from the garage, or to enter the garage on foot from the outside, residents must use keys. To drive into the garage, residents must use a garage door opener.3

¶5 When Strandlie and one of his employees arrived to repossess Duncan's car, however, they found the garage door open. They went in, located Duncan's car, and towed it away. Neither Strandlie nor the employee interacted with Duncan at the time. A maintenance worker was in the garage at the time of the repossession and did not object.

¶6 Duncan filed this case in circuit court4 alleging, among other things, that Defendants violated Wis. Stat. § 425.206(2)(b) when they entered the parking garage to repossess her car and that Defendants' conduct during and after the repossession was unconscionable in violation of Wis. Stat. § 425.107(1).5

¶7 The circuit court granted summary judgment to Defendants on all claims, concluding that entering the garage to repossess the car did not violate Wis. Stat. § 425.206(2)(b) and that Duncan's unconscionability claim failed as a result. The circuit court reasoned that § 425.206(2)(b) did not apply because Duncan had no right to exclude all others from the garage and that the garage "offers no use that is primarily or intimately tied to the use of her apartment, for example, sleeping, eating or conducting her private life."

¶8 The court of appeals reversed. Duncan v. Asset Recovery Specialists, Inc., 2020 WI App 54, 393 Wis. 2d 814, 948 N.W.2d 419. The court of appeals reasoned that "dwelling used by [Duncan] as a residence" included the parking garage, relying on the language of Wis. Stat. § 425.206(2)(b) ; another part of the Wisconsin Consumer Act, Wis. Stat. § 422.419(1)(a) ; and an administrative rule interpreting § 422.419(1)(a), Wis. Admin. Code § DFI-WCA 1.392 (July 2007).6 See Duncan, 393 Wis. 2d 814, ¶2, 948 N.W.2d 419. Based on its reading of those provisions, the court of appeals also rejected any interpretation of the phrase "dwelling used by the customer as a residence" that "turns on considerations of ownership or the right to exclude" or a would-be repossessor's subjective evaluation of whether a particular location showed some "indicia of residential use." Id., ¶¶33-35 (internal quotation marks omitted). Because the circuit court dismissed the unconscionability claim on the same grounds as the repossession claim, the court of appeals remanded to give the parties and the circuit court the opportunity to address in the first instance whether the unconscionability claim should be dismissed for other reasons.


¶9 At issue in this case is the interpretation and application of Wis. Stat. §§ 425.206(2)(b) and 425.107(1). Statutory interpretation is a question of law that we review de novo. See, e.g., Clean Wis., Inc. v. DNR, 2021 WI 72, ¶10, 398 Wis. 2d 433, 961 N.W.2d 611. "When interpreting statutes, we start with the text, and if its meaning is plain on its face, we stop there." Id. We also consider the broader statutory context, interpreting language consistently with how it is used in closely related statutes. Id. Our analysis is further informed by the legislature's explicit statements of legislative purpose and those reflected in a statute's context and structure. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶49, 271 Wis. 2d 633, 681 N.W.2d 110.


¶10 We begin with Duncan's claim that Defendants violated Wis. Stat. § 425.206(2)(b) by entering the parking garage of her apartment building to repossess her car. Section 425.206(2) states as follows:

In taking possession of collateral or leased goods, no merchant may do any of the following:
(a) Commit a breach of the peace.
(b) Enter a dwelling used by the customer as a residence except at the voluntary request of a customer.

It is undisputed that Defendants are "merchant[s]," that Duncan is "the customer," and that Duncan made no "voluntary request" for Defendants to enter the garage.

See id.; Wis. Stat. § 421.301(17), (25). To determine whether the repossession was proper, we must therefore answer a single question: Did Defendants enter "a dwelling used by [Duncan] as a residence" when they repossessed her car from the first-floor parking garage of her apartment building? In answering that question, we first determine the meaning of "dwelling" as it is used in § 425.206(2)(b) before analyzing the phrase that modifies it, "used by the customer as a residence."


¶11 Although "dwelling" is undefined in the Wisconsin Consumer Act, it is a common word and the parties generally agree on its ordinary, dictionary definition. "Dwelling" typically refers to "a building or other shelter in which people live." See, e.g., Webster's Seventh New Collegiate Dictionary 259 (16th ed. 1967); American Heritage Dictionary 406 (6th ed. 1976) (defining "dwelling" as "[a] place to live in; residence; abode").7 In other words, a dwelling is a building in which at least one person lives.

¶12 That definition is consistent with the use of "dwelling" elsewhere in the statutes at the time the Wisconsin Consumer Act was adopted in 1971. See Spielmann v. Indus. Comm'n, 236 Wis. 240, 250, 295 N.W. 1 (1940) (explaining that statutory terms should be interpreted consistently with the "definition contained in the statutes in force at the time the act was passed"). For example, Wis. Stat. § 990.01(13)(a) (1971–72) defined "homestead" to mean "the dwelling and so much of the land surrounding it as is reasonably necessary for use of the dwelling as a home, but not less than one-fourth acre (if available) and not exceeding 40 acres." Id. Similarly, Wis. Stat. § 852.09(2) (1971–72) defined "home" as "any dwelling in the estate of the decedent which at the time of his death the surviving spouse occupies or intends to occupy." Id. Section 852.09(2) further explained that this language included "a house, a mobile home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse, or a building used in part...

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