Marital
Agreement Notice
The following information must appear on the application,
if an application is used:
No provisions of a marital property agreement,
a unilateral statement under Section 766.59, or a court decree under Section 766.70,
adversely affects the interest of the creditor, unless the creditor prior to the
time credit is granted, is furnished a copy of the agreement, statement or decree,
or has knowledge of the adverse provision when the obligation to the creditor
is incurred.
Complete the following section if your patient is married
and the spouse has not signed the application:
Name and Address of Spouse:
___________________________________________
___________________________________________
___________________________________________
I agree that this account
will be used in the interest of the marriage or family.
___________________________________________
(Signature of Applicant)
Credit Agreement
Before
the first transaction is entered into, you must disclose all of the following
information as part of the same document.
1) The conditions under which
a finance charge may be imposed, and any time period (grace period) within which
the entire balance may be paid to avoid a finance charge;
2) The method
of determining the balance on which a finance charge may be imposed;
3)
The method of determining the amount of the finance charge;
4) The periodic
rate as well as the corresponding annual percentage rate of the finance charge
(the terms “finance charge” and “annual percentage rate” must
be made more conspicuous);
5) The minimum payment required (the amount
in the sample form is just an example);
6) The amount of any other charges
that may be imposed in addition to the finance charge;
7) Any security
interest which will be taken under the agreement;
8) The patient’s
right to dispute billing errors (see sample billing statement).
The sample
form uses the “adjusted balance” method of determining the amount on
which the finance charge is calculated. You may also may use the “average
daily balance” or the “median balance” methods.
The sample
agreement form does not list any additional charges which are allowed in an open-end
credit agreement. The following four example provisions show how to contract for
some of the typical charges that are found in open-end credit agreements.
1)
A charge, not to exceed $10 in any billing cycle, in which the doctor does not
receive at least the minimum payment due on or before the due date. Any charge
imposed may not be included in the outstanding balance for purposes of calculating
any finance charge or minimum payment.
2) An annual membership fee of $10.
3) A charge of $10 in any billing cycle in which the patient exceeds the
credit limit established in the agreement.
4) A charge not to exceed $15
for each check received for payment that is dishonored because the patient does
not have an account, sufficient credit, or sufficient funds in the account with
the financial institution on which the check is written.
If you wish to
contract for any of these charges, they must be listed under a heading, such as
“Additional Charges,” in the account agreement.
Sample
Open-end Credit Agreement
CREDIT AGREEMENT
I
agree that the following terms will govern any purchases made or authorized by
me which are charged to this account.
1. I will pay the cash price (including
taxes) of goods and services charged to this account, together with applicable
FINANCE CHARGES.
2. Calculation of Finance Charge. The FINANCE CHARGE
shall be determined by applying a periodic rate of 1.5% per month, or an ANNUAL
PERCENTAGE RATE OF 18%.
3. Balance on which Finance Charge is computed.
The FINANCE CHARGE will be computed on the Adjusted Balance of the account, which
shall be the Previous Balance at the beginning of the billing cycle less all payments,
credits and refunds due during the billing cycle.
4. Minimum Amount
Due. Within 25 days of the Closing Date I will pay the New Balance or Minimum
Amount Due, which shall be the greater of $10 or 1/12th of the Previous Balance.
If the New Balance is less than $10, the Minimum Amount Due shall be the New Balance.
If I pay the New Balance within 25 days of the Closing Date, I will not be assessed
a Finance Charge in the succeeding billing cycle.
5. Default. If
I default by failing to pay the Minimum Amount Due when due on two (2) occasions
within any twelve month period, and I do not cure the default within 15 days of
written notice of default in accordance with applicable law, my entire balance
may, at your option, become due and payable. Your waiver of any default shall
not operate as a waiver of any other default.
6. Application of Payments.
Each payment shall be applied first to unpaid FINANCE CHARGES; then, as to merchandise
and services purchased on different dates, the first purchased shall be deemed
the first paid; as to merchandise and services purchased on the same date, the
lowest priced shall be deemed first paid.
7. Security Interest.
To secure full payment and performance of all of my obligations and my entire
indebtedness under this account, you are hereby granted a security interest under
the Uniform Commercial Code in and to all merchandise purchased with this account.
8. All parties agree that this account is governed by the provisions of
the Wisconsin Consumer Act, as amended, and the creditor may amend the terms of
this account with 15 days notice to the customer, except that notice of 90 days
is required for changes which are adverse to the customer with respect to outstanding
balances, or which alters a permitted additional charge.
DATED_____________________
DATED
Patient’s Signature Patient’s Signature (Joint Account)
NOTICE:
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES
WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED
PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR
SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
NOTICE: SEE
REVERSE SIDE FOR IMPORTANT INFORMATION REGARDING CUSTOMER’S RIGHTS TO DISPUTE
BILLING ERRORS.
YOUR
RIGHTS TO DISPUTE BILLING ERRORS
(Keep this notice for future use.)
This
notice contains important information about your rights and our responsibilities
under the Fair Credit Billing Act.
Notify Us In Case Of Errors Or
Questions About Your Bill
If you think your bill is wrong, or if
you need more information about a transaction on your bill write us on a separate
sheet (at the address listed on your bill). In order to protect your rights, we
must receive your letter no later than 60 days after we sent you the first bill
on which the error or problem appeared. You can telephone us, but doing so will
not preserve your rights.
In your letter, provide us with the following
information:
· Your name and your account number;
· The dollar amount of the suspected error;
· Describe the
error and explain, if you can, why you believe there is an error. If you need
more information, describe the item you are unsure about.
Your
Rights And Our Responsibilities After We Receive Your Written Notice
We
must acknowledge your letter within 30 days, unless we have corrected the error
by then. Within 90 days, we must either correct the error or explain why we believe
the bill was correct.
After we receive your letter, we cannot try to collect
any amount you question or report you as delinquent. We can continue to bill you
for the amount in question, including finance charges, and we can apply any unpaid
amount against your credit limit. You do not have to pay any questioned amount
while we are investigating, but you are still obligated to pay the parts of your
bill that are not in question.
If we find that we made a mistake on your
bill, you will not have to pay any finance charges related to any questioned amount.
If we did not make a mistake, you may have to pay finance charges, and you will
have to make up any missed payments on the questioned amount. In either case,
we will send you a statement of the amount you owe and the date that it is due.
If
you fail to pay the amount that we think you owe, we may report you as delinquent.
However, if our explanation does not satisfy you and you write us within 10 days
telling us that you still refuse to pay, we must tell anyone we report you to
that you have a question about your bill. And, we must tell you the name of anyone
we report you to. We must tell anyone we report you to that the matter has been
settled between us when it finally is.
If we don’t follow these rules,
we cannot collect the first $50 of the questioned amount, even if your bill was
correct.
Billing Statement (see Billing
Statement Sample)You are required to provide the customer with a
billing statement containing specific disclosures in any billing cycle at the
end of which the customer has a debit or credit balance greater than $1.00, or
where a finance charge is imposed. The billing statement must contain:
1. The outstanding balance at the beginning of the billing cycle;
2. Identification
of the transactions posted to the account;
3. The amount and date of each
payment, refund, rebate or adjustment posted to the account;
4. The amount
of the finance charge, using the term “finance charge”;
5. The
periodic rate or rates of finance charge and the corresponding annual percentage
rate of the finance charge, using the term “Annual Percentage Rate”;
6. The balance on which the finance charge was computed and a statement as
to how that balance was determined;
7. The closing date of the billing cycle
and the outstanding balance in the account on that date;
8. Any time period
(grace) within which the customer (patient) may pay the entire outstanding balance
in order to avoid a finance charge.
The short form billing
error rights statement should be contained on the back of the billing statement.
You may either provide the patient with the long form statement at least once
each calendar year or, as an alternative, provide the short form on or with each
billing statement.
Billing Rights Summary
In
Case Of Errors Or Questions About Your Bill
If you think your bill is wrong,
or if you need more information about a transaction on your bill, write us on
a separate sheet (at address shown on your bill) as soon as possible. We must
hear from you no later than 60 days after we sent you the first bill on which
the error or problem appeared. You can telephone us, but doing so will not preserve
your rights.
In your letter, give us the following information:
·
Your name and your account number;
· The dollar amount of the suspected
error;
· Describe the error and explain, if you can, why you believe
there is an error. If you need more information, describe the item you are unsure
about.
You do not have to pay any amount in question while we are investigating,
but you are still obligated to pay the parts of your bill that are not in question.
While we investigate, we cannot report you as delinquent or take any action to
collect the amount in question.
Refunds of Finance Charges - The Rule
of 78’s
There may be occasions where you have to refund finance
charges to a patient because of an error made by your staff. The rule of 78’s
method of computing refunds, which is also referred to as the “sum of digits”
method, primarily applies to transactions: (1) repayable in equal monthly installments,
and (2) where the debt or amount owed is expressed as a single sum comprised of
the amount financed and the finance charge computed in advance.
EXAMPLE:
Amount
Financed $1,000.00
Finance Charge Computed in Advance $ 90.44
Amount Owed
(Total of Payments) $1,090.44
Repayable in 12 monthly installments of $90.87
each
Annual Percentage Rate is 16.29%
The following table
shows how the “Rule of 78’s” or “Sum of Digits” method
applies to the above transaction:
(1) NUMBER OF DIGITS refers to the number of installments outstanding
and to the number of digits which are applicable to the balance outstanding for
each month.
(2) EARNED FINANCE CHARGE refers to the accumulated number
of digits which are earned at the end of each month over the total number of digits
applicable to the term of the transaction and the accumulated finance charge earned
at the end of each month.
(3) UNEARNED FINANCE CHARGE refers to the
accumulated number of digits which are unearned at the end of each month over
the total number of digits applicable to the term of the transaction and the accumulated
finance charge unearned at the end of each month.
(4) The reference to the
“Rule of 78’s” originates because the sum of the digits, 12 through
1 inclusive, set forth in (1) is 78.
If the account was paid in full at
the end of the first month, the lender earns the amount of the finance charge
applicable to the first month or to the first installment. The number of the digits
applicable to the first installment is 12 and the sum of the digits applicable
to the 12 installments is 78. Therefore, the lender earns 12/78 ths of the finance
charge, or $13.91. The sum of the digits applicable to the remaining installments
is 66 (11 + 10 + 9 through 1 inclusive), therefore, the amount of the finance
charge that is unearned (refund) is 66/78ths of the finance charge, or $76.53.
If
the account was paid in full at the end of the 11th month, the lender earns the
amount of the finance charge applicable to the 1st through 11th installment inclusive.
The sum of the digits applicable to the 1st through the 11th installments is 77
(12 + 11 through 2 inclusive) and since the sum of the digits applicable to the
12 installments is 78, the lender earns 77/78ths of the finance charge, or $89.28.
The number of digits applicable to the 12th installment is, therefore, the amount
of the finance charge which is unearned (refund) is 1/78th of the finance charge,
or $1.16.
On transactions scheduled to be repaid in equal monthly installments
having a term of less than 12 months, the sum of the digits will be less than
78. EXAMPLE: A 6-month transaction has a total of 21 digits, the sum of 6 through
1 inclusive. On transactions scheduled to be repaid in equal monthly installments
having a term of more than 12 months, the sum of the digits will be more than
78. EXAMPLE: A 36-month transaction has a total of 666 digits, the sum of 36 through
1 inclusive.
As a general rule, the percentage of the finance charge earned
by a lender on transactions scheduled to be repaid in equal monthly installments
will be approximately 43% if the account was paid in full at the time it was in
effect for ¼ of the scheduled number of months (3 of 12, 6 of 24 or 9 of
36), and approximately 74% if the account was paid in full at the time it was
in effect for ½ of the scheduled number of months (6 of 12, 12 of 24 or
18 of 36).
Making payments before they are due does not reduce the total
interest owed. Only when you pay off the entire loan early will you save interest.
Keep in mind that paying off a loan in, say, 15 months instead of 30 as originally
planned will not produce a savings of one-half of the interest.
Penalties
for Violation of Wisconsin’s Debt Collection Law
If you violate
Wisconsin’s law relating to Debt Collection Practices, there are several
remedies available to your patient.
Wi. stat. 427.105 provides that the
consumer may file suit to recover:
1. Actual damages, including any incidental
and consequential damages sustained by the patient because of the violation;
2.
Twice the amount of the finance charge in connection with the transaction, up
to $1000;
3. Damages for emotional distress or mental anguish (does not require
physical injury);
4. The right to recover any collateral the patient was induced
to surrender by you that violates Wisconsin’s Debt Collection Law.
Federal
Credit Laws
Equal Credit Opportunity Act requires that credit
grantors extend credit fairly and without considering race, color, age, sex, or
marital status.
Fair Credit Billing Act says that if a patient receives
a bill that they feel is incorrect and they notify you in writing within 60 days,
you must either correct the bill or send the patient an explanation within 90
days.
Truth In Lending Act requires you to tell your patients what
using credit really costs (like interest rates, minimum monthly payment, finance
charge, etc.)
Fair Debt Collection Practices
Act
Questions and Answers Concerning Debt Collectors
Who
is a Debt Collector?
A debt collector is anyone, other than the doctor
or his or her attorney, who regularly collects debts for others. The staff of
a doctor would be a debt collector.
How May a Debt Collector Contact
a Patient?
A debt collector may contact a patient in person, by mail
telephone or fax. However, it can’t be at inconvenient times or places, such
as before 8 a.m. or after 9 p.m.
A debt collector may not contact a patient
at work if their employer disapproves. A debt collector may not contact a patient
or a third party if the collector knows that the patient has retained an attorney.
Can
A Patient Stop a Debt Collector from Calling?
Yes, a patient may stop
a debt collector from calling by saying so in writing within 30 days after his
or her first contact. Once a patient tells a debt collector not to call, the debt
collector can no longer do so except, to tell the patient that there will be no
further calls.
What Types of Debt Collection Practices are Prohibited?
A
Debt Collector may NOT:
¨ Tell anyone that the patient owes money;
¨ Send or put anything on an envelope that identifies the writer as a
debt collector;
¨ Use threats of violence to harm anyone or anyone’s
property or reputation;
¨ Falsely imply that the debt collector represents
the United States government or any state government;
¨ Use any false
name;
¨ Falsely imply that the debt collector is an attorney or represent
that papers are legal forms, when they are not;
¨ Falsely imply that the
patient committed any crime;
¨ Falsely represent that the debt collector
operates or works for a credit bureau; or
¨ Falsely give credit information
about the patient to anyone.
A debt collector must be fair in attempting
to collect any debt. For example, a debt collector cannot:
¨ Collect any
amount greater than the amount of the debt, unless allowed by law;
¨ Deposit
a postdated check before the date written;
¨ Make the patient accept collect
calls.
What Can a Patient do if the Debt Collector Breaks the Law?
The patient has the right to sue a debt collector in a state or federal
court within one year from the date the law was violated. The patient may recover
money for the damage they suffered.
Statute excerpts
Wisconsin
Consumer Act
General Provisions and Definitions 421.102(2) The underlying purposes
and policies of chs. 421 to 427 are:
421.102(2)
General provisions and definitions
421.103(1) Applicable law
421.102(2)(a)
To simplify, clarify and modernize the law governing consumer transactions;
421.102(2)(b)
To protect customers against unfair, deceptive, false, misleading and unconscionable
practices by merchants;
421.102(2)(c) To permit and encourage the development
of fair and economically sound consumer practices in consumer transactions; and
421.102(2)(d)
To coordinate the regulation of consumer credit transactions with the policies
of the federal consumer credit protection act.
421.102(3) A reference to
a provision of chs. 421 to 427 includes reference to a related rule or order of
the administrator adopted under chs. 421 to 427.
Applicable law. 421.103(1)
Unless superseded by the
particular provisions of chs. 421 to 427, chs. 401
to 411 and the principles of law and equity, including the law relative to capacity
to contract, principal and agent, estoppel, fraud, misrepresentation, duress,
coercion, mistake, bankruptcy, or other validating or invalidating cause supplement
chs. 421 to 427.Settlement of claims; agreement to forego rights; waiver. 421.106(1)
Except as otherwise provided in chs. 421 to 427, a customer may not waive or agree
to forego rights or benefits under chs. 421 to 427.
421.106(2) A claim by
a customer against a merchant for an excess charge, other violation of chs. 421
to 427 or civil penalty, or a claim against a customer for default or breach of
a duty imposed by chs. 421 to 427, if disputed in good faith, may be settled by
agreement.
421.106(3) A claim, whether or not disputed, against a customer
may be settled for less value than the amount claimed.
421.106(4) A settlement
in which the customer waives or agrees to forego rights or benefits under chs.
421 to 427 is invalid if the court as a matter of law finds the settlement to
be unconscionable at the time it was made. In this regard the court may consider
the competence of the customer as measured by his or her education, ability to
speak and read the language of the contract, and his or her prior consumer experience;
any deception or coercion practiced upon the customer; the nature and extent of
the legal advice received by the customer; and the value of the consideration.
Effect
of chapters 421 to 427 on powers of organizations. 421.107(1) Except as specifically
provided, chs. 421 to 427 prescribe maximum charges for all consumer credit transactions
and displace existing limitations on the powers of creditors based on maximum
charges.
421.201(2) For the purposes of chs. 421 to 427, a consumer transaction
or modification of a consumer transaction is made in this state if:
421.201(2)(a)
A writing signed by the customer and evidencing the obligation or an offer of
the customer is received by the merchant in this state; or
421.201(2)(b)
The merchant induces the customer who is a resident of this state to enter into
the transaction by face-to-face solicitation or by mail or telephone solicitation
directed to the particular customer in this state.
421.201(3) With respect
to a transaction pursuant to an open-end credit plan, chs. 421 to 427 apply if
the customer is a resident of this state and the open-end creditor or a merchant
honoring a credit card issued by the open-end creditor, is a resident of this
state or furnishes, mails or delivers the goods, services or credit to a resident
of this state while the customer is within this state or receives a writing signed
by the customer and evidencing the transaction in this state.
421.201(4)
Chapter 427 applies to any debt collection activity in this state, including debt
collection by means of mail or telephone communications directed to customers
in this state.
421.201(8) For the purposes of chs. 421 to 427, the residence
of a customer is the address given by the customer as his or her residence in
any writing signed by the customer in connection with a consumer transaction.
The given address is presumed to be unchanged until the merchant knows or has
reason to know of a new or different address.
421.201(9) Notwithstanding
other provisions of this section:
421.201(9)(a) Except as provided in sub.
(4) or (5), chs. 421 to 427 do not apply if the customer is not a resident of
this state at the time of a consumer transaction and the parties then agree that
the law of his or her residence applies; and
421.201(9)(b) Chapters 421
to 427 apply if the customer is a resident of this state at the time of a consumer
transaction and the parties then agree that the law of this state applies.
Exclusions.
Chapters 421 to 427 do not apply to:
421.202(6) Consumer credit transactions
in which the amount financed exceeds $25,000, motor vehicle consumer leases in
which the total lease obligation exceeds $25,000 or other consumer transactions
in which the cash price exceeds $25,000;
421.301 General definitions. In
addition to definitions appearing in chs. 422 to 427, in chs. 421 to 427:
421.301(9)
“Consumer credit sale” means a sale of goods, services or an interest
in land to a customer on credit where the debt is payable in installments or a
finance charge is imposed and includes any agreement in the form of a bailment
of goods or lease of goods or real property if the bailee or lessee pays or agrees
to pay as compensation for use a sum substantially equivalent to or in excess
of the aggregate value of the goods or real property involved and it is agreed
that the bailee or lessee will become, or for no other or a nominal consideration
has the option to become, the owner of the goods or real property upon full compliance
with the terms of the agreement.
421.301(10) “Consumer credit transaction”
means a consumer transaction between a merchant and a customer in which real or
personal property, services or money is acquired on credit and the customer’s
obligation is payable in installments or for which credit a finance charge is
or may be imposed, whether such transaction is pursuant to an open-end credit
plan or is a transaction involving other than open-end credit. The term includes
consumer credit sales, consumer loans, consumer leases and transactions pursuant
to open-end credit plans.
421.301(14) “Credit” means the right
granted by a creditor to a customer to defer payment of debt, to incur debt and
defer its payment or to purchase goods, services or interests in land on a time
price basis.
421.301(16) “Creditor” means a merchant who regularly
engages in consumer credit transactions or in arranging for the extension of consumer
credit by or procuring consumer credit from 3rd persons.421.301(20) “Finance
charge” means the sum of all charges, payable directly or indirectly by the
customer as an incident to or as a condition of the extension of credit, whether
paid or payable by the customer, the creditor or any other person on behalf of
the customer to the creditor or to a 3rd party unless the creditor had no notice
or knowledge of the charges paid or payable to the 3rd party. The term does not
include any charge with respect to a motor vehicle consumer lease. The term includes
the following types of charges to the extent they are not permitted additional
charges under s. 422.202, delinquency charges under s. 422.203 or deferral charges
under s. 422.204:
421.301(20)(a) Interest, time price differential and any
amount payable under a discount or other system of additional charges;
421.301(36)
“Prepaid finance charge” means any finance charge paid separately, in
cash or otherwise, directly or indirectly to the creditor or with the creditor’s
knowledge to another person or withheld by the creditor from the proceeds of the
credit extended.
421.301(42)(a) “Services” includes:
421.301(42)(a)1.
Work, labor and other personal services;
Venue. 421.401(1) The venue for
a claim arising out of a consumer transaction or a consumer credit transaction
is the county:
421.401(1)(a) Where the customer resides or is personally
served;
421.401(1)(b) Where collateral securing a consumer credit transaction
is located; or
421.401(1)(c) Where the customer sought or acquired the property,
services, money or credit which is the subject of the transaction or signed the
document evidencing his or her obligation under the terms of the transaction.
421.401(2)
When it appears from the return of service of the summons or otherwise that the
county in which the action is pending under sub. (1) is not a proper place of
trial for such action, unless the defendant appears and waives the improper venue,
the court shall act as follows:
Chapter 422 Wisconsin consumer act—consumer
credit transactions.
SUBCHAPTER II MAXIMUM CHARGES
Finance charge
for consumer credit transactions. 422.201(1) With respect to a consumer credit
transaction other than one pursuant to an open-end credit plan, the parties may
agree to the payment by the customer of a finance charge not in excess of that
permitted by sub (3).
422.201(3) For licensees under s. 138.09 and under
s. 218.01, the finance charge, calculated according to those sections, may not
exceed the maximums permitted in ss. 138.09 and 218.01, respectively.
422.201(5)
For the purposes of this section:
422.201(5)(a) The finance charge may be
calculated on the assumption that all scheduled payments will be made when due;
422.201(5)(b)
The dollar amount of finance charge shall include the prepaid finance charge excluded
from the amount financed; and
422.201(5)(c) The effect of prepayment is
governed by the provisions on rebate upon prepayment under s. 422.209.
422.201(6)
For the purposes of this section, the term of a consumer credit transaction other
than one pursuant to an open-end credit plan commences with the date the credit
is granted or, if goods are delivered, services performed or proceeds of a loan
paid 10 days or more after that date, with the date of commencement of delivery
or performance. Differences in lengths of months are disregarded and a day may
be counted as one-thirtieth of a month.
422.201(7) Subject to classifications
and differentiations the merchant may reasonably establish, the merchant may make
the same finance charge on all amounts financed within a specified range. A finance
charge so made does not violate sub. (2) or (3) as the case may be if:
422.201(7)(a)
When applied to the median amount within each range, it does not exceed the maximum
permitted by sub. (2) or (3) as the case may be; and
422.201(7)(b) When
applied to the lowest amount within each range, it does not produce a rate of
finance charge exceeding the rate calculated according to par. (a) by more than
8% of the rate calculated according to par. (a).
422.201(8) That portion
of the finance charge consisting of an amount equal to a discount of 5% or less
of the stated price which is offered to induce payment in full within a stated
period of time in connection with a sale of particular goods and services for
which credit is not otherwise available from the merchant shall not be included
in the finance charge for the purpose of determining the maximum rate of finance
charge under sub. (2) or (3) with respect to a customer who does not pay in full
within such time.
422.201(9) Notwithstanding
sub. (2) or (3), a merchant may contract for and receive a minimum finance charge
with respect to a transaction other than one pursuant to an open-end credit plan,
of not more than $5 when the amount financed does not exceed $75, or $7.50 when
the amount financed exceeds $75.
422.201(10m) A finance charge determined
by application of a periodic rate shall be determined by applying the periodic
rate to one of the following:
422.201(10m)(a) The average daily balance
of the account.422.201(10m)(b) The unpaid balance of the account on the last
day of the billing cycle after first deducting all payments, credits and refunds
during the billing cycle.
422.201(10m)(c) The median amount within a specified
range within which the unpaid balance as calculated according to par. (a) or (b)
is included. A charge may be made under this paragraph only if the creditor, subject
to classifications and differentiations the creditor may reasonably establish,
makes the same charge on all balances within the specified range and if the percentage
when applied to the median amount within the range does not exceed the charge
resulting from applying that percentage to the lowest amount within the range
by more than 8% of the charge on the median amount.
422.201(10s) Regardless
of the date that an open-end credit plan is entered into, the parties may agree
to the payment by the customer of a finance charge at any periodic rate.
422.201(11)
Anything to the contrary in this chapter notwithstanding, with respect to consumer
credit sales and consumer loans secured by real property and insured or guaranteed
by the federal government, or any agency or instrumentality thereof, this chapter
shall not prohibit or limit any charges which are required by statutes, rules
or regulations of such government, agency or instrumentality.
422.201(12m)
This section does not apply to consumer credit sales of or consumer loans secured
by a first lien on or equivalent security interest in mobile homes as defined
in s. 218.10 (2), if the sales or loans are made on or after November 1, 1981.
422.201(13)
A violation of this section is subject to s. 425.305.
Additional charges.
422.202(1) In addition to the finance charge permitted by this subchapter, a merchant
may bargain for and receive any of the following additional charges in connection
with a consumer credit transaction:
422.202(1)(a) Official fees and taxes.
422.202(1)(b)
Charges or premiums for insurance against loss of or damage to property in which
the creditor takes a security interest or to property leased under a motor vehicle
consumer lease or against liability arising out of the ownership or use of property
in which the creditor takes a security interest or of property leased under a
motor vehicle consumer lease, if all of the following conditions are met:
422.202(1)(b)1.
A clear, conspicuous and specific statement in writing is furnished by the creditor
to the customer setting forth the cost and term of the insurance if obtained from
or through the merchant and stating that the customer may choose the person through
which the insurance is to be obtained.
422.202(1)(b)2. The creditor mails
or delivers to the customer a notice of the customer’s right to cancel the
insurance obtained from or through the merchant in accordance with s. 424.304.
422.202(1)(c)
Charges in real property transactions as provided in sub. (2).
422.202(1)(d)
With respect to a consumer credit transaction which is other than one pursuant
to an open-end credit plan and which is entered into on or after May 17, 1988,
a charge not to exceed $15 for each check presented for payment to a creditor
which is returned unsatisfied because the drawer does not have an account with
the drawee, does not have sufficient funds in his or her account or does not have
sufficient credit with the drawee.
422.202(2m) With respect to an open-end
credit plan, regardless of when the plan was entered into:
422.202(2m)(a)
A creditor may charge, collect and receive other fees and charges, in addition
to the finance charge authorized under s. 422.201, that are agreed upon by the
creditor and the customer. These other fees and charges may include periodic membership
fees, cash advance fees, charges for exceeding a designated credit limit, charges
for late payments, charges for providing copies of documents and charges for the
return of a dishonored check or other payment instrument.
422.202(2m)(b)
For purposes of 12 USC 85, 1463 (g), 1785 and 1831d, both the finance charge under
s. 422.201 and charges permitted under par. (a) are interest and may be charged,
collected and received as interest by a creditor.
422.202(2s)(a) A creditor
may contract for and collect from the borrower, or include in the amount financed,
any of the following:
422.202(2s)(a)1. Charges or premiums for consumer
credit insurance, as defined in s. 424.201, consisting of consumer credit life
insurance, credit accident and sickness insurance and credit unemployment insurance
against loss of income of debtors resulting from either labor disputes or involuntary
unemployment if all of the following conditions are met:
422.202(2s)(a)1.a.
The insurance coverage is not required by the creditor and that fact is clearly
and conspicuously disclosed in writing to the customer.
422.202(2s)(a)1.b.
Any customer desiring the insurance coverage gives a specific, separately signed,
affirmative written indication of the desire after receiving written disclosure
of the cost and term of the insurance.
422.202(2s)(a)2. Charges or premiums
for insurance other than insurance described in subds. 1., 3. and 4., subs. (1)
(b) and (2) (a) and s. 421.301 (20) (f) if all of the following conditions are
met:
422.202(2s)(a)2.a. The insurance coverage is not required by the creditor
and that fact is clearly and conspicuously disclosed in writing to the customer.
422.202(2s)(a)2.b.
Any customer desiring the insurance coverage gives a specific, separately signed,
affirmative written indication of the desire after receiving written disclosure
of the cost and term of the insurance.422.202(2s)(a)2.c. The creditor mails
or delivers to the customer a notice of the customer’s right to cancel the
insurance in accordance with s. 424.401.
422.202(3)(a) For purposes of chs.
421 to 427, any charge not authorized by this section shall be considered part
of the finance charge. An additional charge authorized by this section but assessed
in a manner inconsistent with this section is not part of the finance charge unless,
except with respect to the charges under sub. (1), the creditor requires the charge
as an incident to or a condition of the extension of credit.
422.202(3)(b)
Except as otherwise provided in chs. 421 to 427, assessing an additional charge
which is not authorized by this section and which is not included by the creditor
as part of the finance charge, or which is authorized by this section but assessed
in a manner inconsistent with this section, is a violation subject to s. 425.304.
422.202(3)(c)
A merchant may not, in the same transaction, be subject to the penalty in s. 138.09
(9) (b), 218.01 (8) or 425.305 and the penalty in s. 425.304, based on the assessment
of the same additional charges.
Delinquency charges. 422.203(1) With respect
to a consumer credit transaction other than one pursuant to an open-end credit
plan, the parties may agree to a delinquency charge on any installment not paid
in full on or before the 10th day after its scheduled or deferred due date in
an amount not to exceed $10 or 5% of the unpaid amount of the installment, whichever
is less.
422.203(2) No delinquency charge may be collected on an installment
which is paid in full on or before the 10th day after its scheduled or deferred
due date even though an earlier maturing installment or a delinquency charge on
an earlier installment may not have been paid in full. For purposes of this subsection
payments are applied first to current installments and then to delinquent installments.
422.203(3)
A delinquency charge under sub. (1) may be collected only once on an installment
however long it remains in default. A delinquency charge may not be collected
for a late installment if, with respect to that installment, there has been a
deferral.
422.203(4)(c) With respect to a consumer credit transaction, interest
after the final scheduled maturity date shall not exceed the greater of either
12% per year or the annual rate of finance charge assessed on that transaction
if the transaction is entered into on or after November 1, 1981, but if interest
is charged no delinquency charge may be taken on the final scheduled installment.
422.203(5)
A violation of this section is subject to s. 425.304.
Deferral charges.
422.204(1) With respect to a precomputed consumer credit transaction, the parties
may at any time agree in writing to a deferral of all or part of one or more unpaid
installments, and the creditor may make and collect a charge but:
422.204(1)(a)
With respect to a precomputed transaction which is scheduled to be repaid in substantially
equal successive installments at approximately equal intervals, if the deferral
is made as of an installment due date and the payment dates for all wholly unpaid
installments are deferred for one or more full installment periods and the maturity
is extended for a corresponding period, the deferral charge shall not exceed the
portion of the precomputed finance charge attributable to the final installment
of the original schedule of payments multiplied by the total number of installments
to be deferred and by the number of full installment periods in the deferment
period; or
422.204(1)(b) If the deferral is not made pursuant to par. (a)
the deferral charge shall not exceed the rate previously disclosed to the customer
pursuant to the provisions on disclosure in subch. III, applied to the amount
or amounts deferred for the period of deferral calculated without regard to differences
in the lengths of months, but proportionally for a part of a month, counting each
day as one-thirtieth of a month.
422.204(2) A deferral charge may be collected
at the time it is assessed or at any time thereafter.
422.204(3) The deferment
period is that period of time in which no payment is required or made by reason
of the deferral.
422.204(4) Any payment received at the time of the deferment
may be applied first to the deferral charge and the remainder, if any, to the
unpaid balance of the transaction, but if such payment is sufficient to pay, in
addition to the appropriate delinquency charge, any installment which is in default,
it shall be first so applied, and such installment shall not then be deferred
or subject to the deferral charge.
422.204(5) No installment on which a
delinquency charge has been collected shall be deferred or included in the computation
of the deferral unless such delinquency charge is refunded to the customer or
credited to the deferral charge.
422.204(6) In addition to the deferral
charge, the merchant may make appropriate additional charges as provided in s.
422.202. The amount of such charges which is not paid in cash may be added to
the amount deferred for the purpose of calculating the deferral.
422.204(7)
In addition to any requirements of form established by the administrator, a deferral
agreement shall:
422.204(7)(a) Be in writing and signed by the customer;
422.204(7)(b)
Incorporate by reference the transaction to which the deferral applies;
422.204(7)(c)
State each installment or part thereof in the amount to be deferred, the date
or dates originally payable and either the date or dates agreed to become payable
for the payment of the amounts deferred or the periods of deferral; and422.204(7)(d)
Clearly set forth the dollar amount of the charge for each installment to be deferred
and the total dollar amount to be paid by the customer for the deferral.
422.204(7)(e)
This subsection shall not apply to deferral charges made pursuant to sub. (8).
422.204(8)
The parties may agree in writing at the time of a precomputed consumer transaction,
refinancing or consolidation that if an installment is not paid within 30 days
after its due date, the creditor at any time may unilaterally grant a deferral
and make charges as provided in this section if a notice is sent to the customer
at least 10 days prior to deferral advising the customer of the total dollar amount
of the deferral charge and the periods of deferral, but such deferral shall not
be allowed if the customer has a valid claim or defense against the creditor for
the payment not made. Only one such unilateral deferral on a consumer credit transaction
may be made during any 12-month period.
422.204(9) No deferral charge may
be made for a period after the date that the creditor elects to accelerate the
maturity of the agreement.
422.204(10) A violation of this section is subject
to s. 425.304.
422.208 Right to prepay. Subject to s. 422.209 and, with
respect to a motor vehicle consumer lease, s. 429.207, the customer may prepay
in full or in any part, at any time without penalty, the unpaid balance of any
consumer credit transaction other than a transaction secured by a first lien mortgage
or equivalent security interest on real estate with an original term of 10 years
or more and on which the annual percentage rate disclosed pursuant to subch. III
is 10% or less.
Rebate on prepayment. 422.209(1) Except as provided in sub.
(1m), upon prepayment in full of the unpaid balance of a precomputed consumer
credit transaction, refinancing or consolidation, an amount not less than the
unearned portion of the finance charge calculated according to this section shall
be rebated to the customer. If the total of all rebates, refunds and credits to
be paid to the customer under chs. 421 to 427 is less than $1, no rebate need
be made.
422.209(2)(a) The unearned portion of the precomputed finance charge
on consumer credit transactions repayable in substantially equal successive installments
at approximately equal intervals shall be equal to at least that portion of the
finance charge which the sums of the installment balances of the obligation scheduled
to be outstanding after the installment date nearest the date of prepayment bears
to the sum of all installment balances originally scheduled to be outstanding
under the obligation. For the purpose of determining the installment date nearest
the date of prepayment when payments are monthly, any prepayment made on or before
the 15th day following an installment due date shall be deemed to have been made
as of the installment due date, and if prepayment occurs on or after the 16th
day it shall be deemed to have been made on the succeeding installment due date.
This method of calculating rebates may be referred to as the “rule of 78”
or “sum of the digits” method. This paragraph applies to all of the
following:
422.209(2)(a)3. Consumer credit transactions in which the amount
financed is less than $5,000, which have initial terms of less than 37 months
and which are entered into on or after August 1, 1987.
422.209(2)(b) The
unearned portion of the finance charge on consumer credit transactions described
in par. (c) is, at the option of the creditor, either of the following:
422.209(2)(b)1.
The portion of the finance charge which is allocable to all unexpired payment
periods as scheduled or deferred. A payment period is unexpired if prepayment
is made within 15 days after the payment’s due date. The unearned finance
charge is the finance charge which, assuming all payments are made as scheduled
or deferred, would be earned for each unexpired payment period by applying to
unpaid balances of principal, according to the actuarial method, the annual percentage
rate disclosed to the customer under subch. III. The creditor may decrease the
annual interest rate to the next multiple of 0.25%.
422.209(2)(b)2. The
finance charge less the amount determined by applying the annual percentage rate
disclosed to the customer under subch. III, according to the actuarial method,
to the unpaid balances for the actual time those balances were unpaid up to the
date of prepayment.
422.209(2)(c) Paragraph (b) applies to all of the following:
422.209(2)(c)2.
Consumer credit transactions in which the amount financed is $5,000 or more and
which are entered into on or after August 1, 1987.
422.209(2)(c)3. Consumer
credit transactions in which the amount financed is less than $5,000, which have
initial terms of 37 months or more and which are entered into on or after August
1, 1987.
422.209(3) With respect to other precomputed consumer credit transactions,
the administrator may prescribe by rule the refund formula consistent with sub.
(2) (a) taking into account the irregularity of installment amounts and due dates.
422.209(4)(a)
Except as provided in par. (b), the unearned portion of a deferral charge is the
deferral charge multiplied by the number of unexpired payment periods as of the
date of prepayment and divided by the total number of installments deferred.
422.209(4)(b)
If the unearned finance charge is calculated under sub. (2) (b), the deferral
charge shall be refunded in full.
422.209(5) This section does not preclude
the collection or retention by the creditor of delinquency charges under s. 422.203
for delinquencies or payments due prior to prepayment.422.209(6) If the maturity
of the obligation is accelerated for any reason and judgment is obtained, the
customer is entitled to the same rebate as if payment in full had been made on
the date judgment is entered against the customer.
422.209(7) A violation
of this section is subject to s. 425.304.
Disclosure and form of writings
422.301
Requirements of federal act. In addition to the disclosures required by the federal
consumer credit protection act, if any, the creditor shall disclose to the customer
to whom credit is extended the information required by this subchapter. With respect
to every consumer credit sale payable in installments (s. 421.301 (30)) upon which
no separate finance charge is stated or imposed (s. 421.301 (20)) the creditor
shall make disclosures in accordance with the federal consumer credit protection
act, to the extent applicable, whether or not such act requires such disclosures
to be made.
General requirements and provisions. 422.302(1) The information
required by this subchapter to be disclosed by the creditor to the customer to
whom credit is extended:
422.302(1)(a) Shall be made clearly and conspicuously;
422.302(1)(b)
Shall be in writing;
422.302(1)(c) Except as provided in s. 422.303 and
in rules adopted by the administrator, need not be contained in a single writing
or made in the order set forth in chs. 421 to 427;
422.302(1)(d) May be
supplemented by additional information or explanations supplied by the creditor,
but none shall be stated, utilized or placed so as to mislead or confuse the customer
or contradict, obscure or detract attention from the information required by this
subchapter to be disclosed; and so long as the additional information or explanations
do not have the effect of circumventing, evading or unduly complicating the information
required to be disclosed by this subchapter; and
422.302(1)(e) Need be made
only to the extent applicable and only as to those items for which the creditor
makes a separate charge to the customer.
422.302(2) The creditor shall disclose
all information required by this subchapter before the transaction is consummated;
such disclosures may be made on the face of the writing evidencing the transaction.
422.302(3)
Before any payment is due, the creditor shall furnish the customer with an exact
copy of each instrument, document, agreement and contract which is signed by the
customer and which evidences the customer’s obligation. If there is more
than one customer, delivery of copies of the documents to one of them constitutes
compliance with this subsection.
422.302(4) Anything to the contrary in
chs. 421 to 427 notwithstanding, the sale of insurance under ch. 424 shall not
be considered a sale requiring separate disclosure other than as provided in s.
422.202 (1).
Prohibition of blank writings. 422.304(1) Every writing evidencing
a consumer credit transaction shall be completed as to all essential provisions
prior to the signing thereof by the parties, and no creditor shall induce, encourage
or otherwise permit the customer to sign a writing containing blank spaces which
are to be filled in after it is signed except for a space provided for the identifying
numbers of goods if not available at the time of the transaction. Blanks relating
to price, charges or terms of payment which are inapplicable to a transaction
must be filled in a manner which reveals their inapplicability unless their inapplicability
is clearly and conspicuously indicated.
422.304(2) A violation of this section
is subject to s. 425.304.
Receipts; accounting; evidence of payment. 422.306(1)
The creditor shall furnish the customer, without request, a written receipt for
each payment made in cash, or any other time the method of payment does not itself
provide evidence of payment.
422.306(2) At any time after consummation of
a consumer credit transaction other than one pursuant to an open-end credit plan,
the creditor, upon written request by the customer, shall furnish to the customer
a written statement of the amounts and specifying the dates of payments received
and charges imposed, together with the unpaid balance at the time of the statement.
With respect to transactions secured by a first lien mortgage, or equivalent security
interest, on real property such statement need specify only the dates and amounts
of payments received and charges imposed during the previous 12 months, and the
unpaid balance remaining at the time of the statement. The customer shall be entitled
to one such statement free of charge once every 12 months. Additional statements
shall be furnished if the customer pays the creditor’s reasonable costs of
preparing and furnishing the statement.
422.306(3) With respect to an open-end
credit plan, the creditor shall at any time upon written request by the customer,
furnish to the customer a written statement, which may consist of copies of the
periodic statements furnished to the customer under the plan, specifying the dates
and amounts of purchases or loan credit extended and payments received during
the previous 12 months, and the unpaid balance remaining at the time of the statement.
The customer shall be entitled to one such statement at a charge not in excess
of $1 once every 12 months. Additional statements shall be furnished if the customer
pays the creditor’s reasonable costs of preparing and furnishing the statement.
422.306(4)
Within 45 days after payment by the customer of all sums for which the customer
is obligated under a consumer credit transaction other than one pursuant to an
open-end credit plan, the creditor shall give or forward to the customer
instruments
which acknowledge payment in full, and release of any security interest when there
is no outstanding secured obligation, and furnish to the customer or the customer’s
designee evidence of the release or assignment to such designee of any recorded
lien on real estate and termination of any filed financing statement which perfected
such security interest.Open-end
credit disclosures.
422.308(1) With regard to every open-end credit plan
between a creditor, wherever located, and a customer who is a resident of this
state and who is applying for the open-end credit plan from this state, every
application for the open-end credit plan, including every application contained
in an advertisement, shall be appropriately divided and captioned by its various
sections and shall set forth all of the following:
422.308(1)(a) The annual
percentage rate or, if the rate may vary, a statement that it may do so and of
the circumstances under which the rates may increase, any limitations on the increase
and the effects of the increase.
422.308(1)(b) The date or occasion upon
which the finance charge begins to accrue on a transaction.
422.308(1)(c)
Whether any annual fee is charged and the amount of the fee.
422.308(1)(d)
Whether any other charges or fees may be charged, what they may be charged for
and the amounts of the charges or fees.
422.308(2) With regard to every
open-end credit plan between a creditor, wherever located, and a customer who
is a resident of this state and who is given the opportunity to enter into an
open-end credit plan while present in any establishment located in this state
but who is not required to complete an application under sub. (1), the customer
shall be given a notice prior to entering into the open-end credit plan. The notice
shall be appropriately divided and captioned by its various sections and shall
set forth all of the information in sub. (1) (a) to (d).
422.308(4) A violation
of this section is subject to s. 425.304 unless the violation was the result of
an unintentional good faith error.
Negotiable instruments. 422.406(1) In
a consumer credit sale or lease transaction, no seller or lessor shall take a
negotiable instrument (s. 403.104), other than a check, as evidence of the obligation
of the customer.
Attorney fees. 422.411(1) With respect to a consumer credit
transaction no term of a writing may provide for the payment by the customer of
attorney fees.
422.411(3) Taking or arranging for the customer to sign an
instrument in violation of this section is subject to s. 425.304.
422.415
Changes in open-end credit terms. 422.415(1) Except as provided in sub. (2), no
creditor shall make any change in the terms of open-end credit plans that is adverse
to the interests of the customer with respect to any outstanding balances or that
imposes or alters a charge permitted under s. 422.202 (2m). For the purposes of
this section, a change shall be presumed to be adverse if the result thereof is
to increase the rate of the finance charge or the amount of the periodic payment
due. Outstanding balances shall be determined on the assumption that all payments
shall be credited first to any finance charges that may be due and then to the
payment of debts in the order in which the entries to the account showing the
debts were made.
422.415(2) A change that is adverse to the interests of
the customer with respect to outstanding balances or that imposes or alters a
charge permitted under s. 422.202 (2m) may be made if any of the following conditions
is met:
422.415(2)(a) The change is required by legislation, regulations
or administrative rules becoming effective after the date of the agreement with
the customer and the creditor has mailed or delivered to the customer written
notice disclosing such proposed change not less than 3 months prior to the effective
date of such change or such lesser period of time as may be available before such
change is required to be made.
422.415(2)(c) The creditor mails or otherwise
delivers to the customer a written disclosure of the proposed change not less
than 90 days prior to the effective date of such change.
422.415(3) No term
of a writing executed by the customer shall constitute authorization for a creditor
to unilaterally make changes in the terms of the credit plan, which are otherwise
prohibited by this section.
422.415(4) A violation of this section is subject
to s. 425.304.
Notice of termination of liability. 422.4155(1) In an open-end
credit plan in which more than one person may be obligated for extensions of credit,
any person may terminate his or her liability for future extensions of credit
under the plan by giving written notice to the creditor of the person’s termination
of liability. The person’s liability for future extensions of credit under
the plan shall continue as to loans extended to, or purchases made by, any other
person under the plan for 15 business days after the creditor’s receipt of
the termination notice. The terminating person’s liability may not exceed
the greater of the requested and contracted for credit limit under the plan or
the balance outstanding under the plan on the receipt of the termination notice
plus $500.
422.4155(2) Notwithstanding sub. (1), a person remains liable
for loans extended to, or purchases made by, the person after giving the termination
notice.
Referral transactions prohibited. 422.416(1) With respect to a consumer
transaction no merchant shall give or offer to give a rebate or discount or otherwise
pay or offer to pay value to the customer as an inducement for a consumer transaction
in consideration of the customer’s giving to the creditor the names of prospective
customers, or otherwise aiding the creditor in entering into a transaction with
another customer or, without being limited by any of the foregoing, performing
any other act or the occurrence of any other event, if the earning of the rebate,
discount or other value is contingent upon the occurrence of an event subsequent
to the time the customer enters into the agreement.
422.416(2) A violation
of this section is subject to s. 425.305.
Restrictions on security interests.
422.417(1) With respect to a consumer credit sale a seller may take a security
interest only in:
422.417(1)(d) Goods of the consumer which were the subject
of a prior transaction with the seller which is consolidated (s. 422.206) with
the consumer credit sale, or if the consumer credit sale is made pursuant to an
open-end credit plan, goods previously purchased by the consumer pursuant to the
plan, subject however to s. 422.418.
Creditor’s Remedies
Accrual
of cause of action; “default”. 425.103(1) Notwithstanding any term or
agreement to the contrary, no cause of action with respect to the obligation of
a customer in a consumer credit transaction shall accrue in favor of a creditor
except by reason of a default, as defined in sub. (2).
425.103(2) “Default”,
with respect to a consumer credit transaction, means without justification under
any law:
425.103(2)(b) With respect to an open-end plan, failure to pay
when due on 2 occasions within any 12-month period; or
425.103(2)(c) To
observe any other covenant of the transaction, breach of which materially impairs
the condition, value or protection of or the merchant’s right in any collateral
securing the transaction or goods subject to a consumer lease, or materially impairs
the customer’s ability to pay amounts due under the transaction.
425.103(3)
A cause of action with respect to the obligation of a customer in a consumer credit
transaction shall be subject to this subchapter, including the provisions relating
to cure of default (ss. 425.104 and 425.105).
Notice of customer’s
right to cure default. 425.104(1) A merchant who believes that a customer is in
default may give the customer written notice of the alleged default and, if applicable,
of the customer’s right to cure any such default (s. 425.105).
425.104(2)
Any notice given under this section shall contain the name, address and telephone
number of the creditor, a brief identification of the consumer credit transaction,
a statement of the nature of the alleged default and a clear statement of the
total payment, including an itemization of any delinquency charges, or other performance
necessary to cure the alleged default, the exact date by which the amount must
be paid or performance tendered and the name, address and telephone number of
the person to whom any payment must be made, if other than the creditor.
Cure
of default. 425.105(1) A merchant may not accelerate the maturity of a consumer
credit transaction, commence any action except as provided in s. 425.205 (6),
or demand or take possession of collateral or goods subject to a consumer lease
other than by accepting a voluntary surrender thereof (s. 425.204), unless the
merchant believes the customer to be in default (s. 425.103), and then only upon
the expiration of 15 days after a notice is given pursuant to s. 425.104 if the
customer has the right to cure under this section.
425.105(2) Except as
provided in sub. (3), for 15 days after such notice is given, a customer may cure
a default under a consumer credit transaction by tendering the amount of all unpaid
installments due at the time of the tender, without acceleration, plus any unpaid
delinquency or deferral charges, and by tendering performance necessary to cure
any default other than nonpayment of amounts due. The act of curing a default
restores to the customer the customer’s rights under the agreement as though
no default had occurred.
425.105(3) A right to cure shall not exist if the
following occurred twice during the preceding 12 months:
425.105(3)(a) The
customer was in default on the same transaction or open-end credit plan;
425.105(3)(b)
The creditor gave the customer notice of the right to cure such previous default
in accordance with s. 425.104; and
425.105(3)(c) The customer cured the
previous default.
Pleadings. 425.109(1) A complaint by a creditor to enforce
any cause of action arising from a consumer credit transaction shall include all
of the following:
425.109(1)(a) An identification of the consumer credit
transaction.
425.109(1)(b) A description of the collateral or leased goods,
if any, which the creditor seeks to recover or has recovered.
425.109(1)(c)
A specification of the facts constituting the alleged default by the customer.
425.109(1)(d)
The actual or estimated amount of U.S. dollars or of a named foreign currency
that the creditor alleges he or she is entitled to recover and the figures necessary
for computation of the amount, including any amount received from the sale of
any collateral.
425.109(1)(g) If the customer still has the right to cure
a default under s. 425.105 pursuant to a notice given under s. 425.104, the total
payment or other performance necessary to cure the alleged default and the exact
date by which it must be made.
425.109(1)(h) An accurate copy of the writings,
if any, evidencing the transaction, except that with respect to claims arising
under open-end credit plans, a statement that the creditor will submit accurate
copies of the writings evidencing the customer’s obligation to the court
and the customer upon receipt of the customer’s written request therefor
on or before the return date or the date on which the customer’s answer is
due.
425.109(2) Upon the written request of the customer, the creditor shall
submit accurate copies to the court and the customer of writings evidencing any
transaction pursuant to an open-end credit plan upon which the creditor’s
claim is made and judgment may not be entered for the creditor unless the creditor
does so.
425.109(3) A judgment may not be entered upon a complaint which
fails to comply with this section.
Debt collectionDefinitions: “claim”;
“debt collection”; “debt collector”. 427.103(1) “Claim”
means any obligation or alleged obligation arising from a consumer transaction,
including a transaction that is primarily for an agricultural purpose.
427.103(2)
“Debt collection” means any action, conduct or practice of soliciting
claims for collection or in the collection of claims owed or due or alleged to
be owed or due a merchant by a customer.
427.103(3) “Debt collector”
means any person engaging, directly or indirectly, in debt collection, and includes
any person who sells, or offers to sell, forms represented to be a collection
system, device or scheme, intended or calculated to be used to collect claims.
The term does not include a printing company engaging in the printing and sale
of forms.
Prohibited practices. 427.104(1) In attempting to collect an alleged
debt arising from a consumer credit transaction or other consumer transaction,
including a transaction primarily for an agricultural purpose, where there is
an agreement to defer payment, a debt collector may not:
427.104(1)(a) Use
or threaten force or violence to cause physical harm to the customer or the customer’s
dependents or property;
427.104(1)(b) Threaten criminal prosecution;
427.104(1)(c)
Disclose or threaten to disclose information adversely affecting the customer’s
reputation for credit worthiness with knowledge or reason to know that the information
is false;
427.104(1)(d) Initiate or threaten to initiate communication with
the customer’s employer prior to obtaining final judgment against the customer,
except as permitted by statute including specifically s. 422.404, but this paragraph
does not prohibit a debt collector from communicating with the customer’s
employer solely to verify employment status or earnings or where an employer has
an established debt counseling service or procedure;
427.104(1)(e) Disclose
or threaten to disclose to a person other than the customer or the customer’s
spouse information affecting the customer’s reputation, whether or not for
credit worthiness, with knowledge or reason to know that the other person does
not have a legitimate business need for the information, but this paragraph does
not prohibit the disclosure to another person of information permitted to be disclosed
to that person by statute;
427.104(1)(f) Disclose or threaten to disclose
information concerning the existence of a debt known to be reasonably disputed
by the customer without disclosing the fact that the customer disputes the debt;
427.104(1)(g)
Communicate with the customer or a person related to the customer with such frequency
or at such unusual hours or in such a manner as can reasonably be expected to
threaten or harass the customer;
427.104(1)(h) Engage in other conduct which
can reasonably be expected to threaten or harass the customer or a person related
to the customer;
427.104(1)(i) Use obscene or threatening language in communicating
with the customer or a person related to the customer;
427.104(1)(j) Claim,
or attempt or threaten to enforce a right with knowledge or reason to know that
the right does not exist;
427.104(1)(k) Use a communication which simulates
legal or judicial process or which gives the appearance of being authorized, issued
or approved by a government, governmental agency or attorney-at-law when it is
not;
427.104(1)(l) Threaten action against the customer unless like action
is taken in regular course or is intended with respect to the particular debt;
or
427.104(1)(m) Engage in conduct in violation of a rule adopted by the
administrator after like conduct has been restrained or enjoined by a court in
a civil action by the administrator against any person pursuant to the provisions
on injunctions against false, misleading, deceptive or unconscionable agreements
or conduct (ss. 426.109 and 426.110).
427.104(2) If a debt collector is
not otherwise in violation of sub. (1) (j) with respect to a consumer credit transaction
with a debtor, it is not a violation of this section to send a billing statement
or other notice of account to, or to collect the amount due on the account from,
the spouse of that debtor, if notice to the debtor’s spouse is provided under
s. 766.56.
Remedies. 427.105(1) A person
injured by violation of this chapter may recover actual damages and the penalty
provided in s. 425.304; but notwithstanding any other law actual damages shall
include damages caused by emotional distress or mental anguish with or without
accompanying physical injury proximately caused by a violation of this chapter.
Wisconsin
Marital Property ActPlease consult your attorney if you intend to make
any modifications in the sample forms provided by the State of Wisconsin. Do not
rely on these statute excerpts because this portion of the statutes has been heavily
excerpted and portions of the statutes that may affect you may not be included
in this text.
Applicability. 766.03(1) Except as provided in sub. (4)
and ss. 766.58 (5), (11) and (12) and 766.585, this chapter first applies to spouses
upon their determination date.
766.03(2) After this chapter first applies
to spouses, it continues to apply to spouses during marriage. Section 766.75 applies
after a dissolution. If at the time of the death of a spouse both spouses are
domiciled in this state, the provisions of this chapter which have application
after the death of a spouse apply.
Responsibility between spouses. 766.15(1)
Each spouse shall act in good faith with respect to the other spouse in matters
involving marital property or other property of the other spouse. This obligation
may not be varied by a marital property agreement.
Variation by marital
property agreement. 766.17(1) Except as provided in ss. 766.15, 766.55 (4m), 766.57
(3) and 766.58 (2), a marital property agreement may vary the effect of this chapter.
Classification
of property of spouses. 766.31(1) All property of spouses is marital property
except that which is classified otherwise by this chapter and that which is described
in sub. (8).
766.31(2) All property of spouses is presumed to be marital
property.
766.31(3) Each spouse has a present undivided one-half interest
in each item of marital property, but the marital property interest of the nonemploye
spouse in a deferred employment benefit plan or in assets in an individual retirement
account that are traceable to the rollover of a deferred employment benefit plan
terminates at the death of the nonemploye spouse if he or she predeceases the
employe spouse.
766.31(4) Except as provided under subs. (7) (a), (7p) and
(10), income earned or accrued by a spouse or attributable to property of a spouse
during marriage and after the determination date is marital property.
766.31(5)
The transfer of property to a trust does not by itself change the classification
of the property.
766.31(6) Property owned at a marriage which occurs after
12:01 a.m. on January 1, 1986, is individual property of the owning spouse if,
at the marriage, both spouses are domiciled in this state.
766.31(7) Property
acquired by a spouse during marriage and after the determination date is individual
property if acquired by any of the following means:
766.31(7)(a) By gift
during lifetime or by a disposition at death by a 3rd person to that spouse and
not to both spouses. A distribution of principal or income from a trust created
by a 3rd person to one spouse is the individual property of that spouse unless
the trust provides otherwise.
766.31(7)(b) In exchange for or with the proceeds
of other individual property of the spouse.
766.31(7)(c) From appreciation
of the spouse’s individual property except to the extent that the appreciation
is classified as marital property under s. 766.63.
766.31(7)(d) By a decree,
marital property agreement or reclassification under sub. (10) designating it
as the individual property of the spouse.
766.31(7)(e) As a recovery for
damage to property under s. 766.70, except as specifically provided otherwise
in a decree or marital property agreement.
766.31(7)(f) As a recovery for
personal injury except for the amount of that recovery attributable to expenses
paid or otherwise satisfied from marital property and except for the amount attributable
to loss of income during marriage.
766.31(7p) Income attributable to all
or specified property other than marital property, with respect to which a spouse
has executed under s. 766.59 a statement unilaterally designating that income
as his or her individual property, is individual property.
766.31(8) Except
as provided otherwise in this chapter, the enactment of this chapter does not
alter the classification and ownership rights of property acquired before the
determination date or the classification and ownership rights of property acquired
after the determination date in exchange for or with the proceeds of property
acquired before the determination date.
766.31(9) Except as provided otherwise
in this chapter and except to the extent that it would affect the spouse’s
ownership rights in the property existing before the determination date, during
marriage the interest of a spouse in property owned immediately before the determination
date is treated as if it were individual property.
766.31(10) Spouses may
reclassify their property by gift, conveyance, as defined in s. 706.01 (4), signed
by both spouses, marital property agreement, written consent under s. 766.61 (3)
(e) or unilateral statement under s. 766.59 and, if the property is a security,
as defined in s. 705.21 (11), by an instrument, signed by both spouses, which
conveys an interest in the security. If a spouse gives property to the other spouse
and intends at the time the gift is made that the property be the individual property
of the donee spouse, the income from the property is the individual property of
the donee spouse unless a contrary intent of the donor spouse regarding the classification
of income is established.
Management and control of property of spouses.
766.51(1) A spouse acting alone may manage and control:
766.51(1)(a) That
spouse’s property that is not marital property.
766.51(1)(am) Except
as provided in subs. (2) and (3), marital property held in that spouse’s
name alone or not held in the name of either spouse.
766.51(1)(b) Marital
property held in the names of both spouses in the alternative, including marital
property held in a form designating the holder by the words “(name of one
spouse) or (name of other spouse)”.
766.51(1)(d) A policy of insurance
if that spouse is designated as the owner on the records of the policy issuer.
766.51(1)(e)
Any right of an employe under a deferred employment benefit plan that accrues
as a result of that spouse’s employment.
766.51(1)(f) A claim for relief
vested in that spouse by other law.
766.51(1m)(a) Notwithstanding any provision
in this section except par. (b), for the purpose of obtaining an extension of
credit for an obligation described under s. 766.55 (2) (b), a spouse acting alone
may manage and control all of the marital property.
766.51(1m)(b) Unless
the spouse acting alone may otherwise under this section manage and control the
property, the right to manage and control marital property under this subsection
does not include the right to manage and control marital property described in
s. 766.70 (3) (a) to (d) or the right to assign, create a security interest in,
mortgage or otherwise encumber marital property.
766.51(2) Spouses may manage
and control marital property held in the names of both spouses other than in the
alternative only if they act together.
Obligations of spouses. 766.55(1)
An obligation incurred by a spouse during marriage, including one attributable
to an act or omission during marriage, is presumed to be incurred in the interest
of the marriage or the family. A statement separately signed by the obligated
or incurring spouse at or before the time the obligation is incurred stating that
the obligation is or will be incurred in the interest of the marriage or the family
is conclusive evidence that the obligation to which the statement refers is an
obligation in the interest of the marriage or family, except that the existence
of that statement does not affect any interspousal right or remedy.
766.55(2)
After the determination date all of the following apply:
766.55(2)(a) A
spouse’s obligation to satisfy a duty of support owed to the other spouse
or to a child of the marriage may be satisfied only from all marital property
and all other property of the obligated spouse.
766.55(2)(b) An obligation
incurred by a spouse in the interest of the marriage or the family may be satisfied
only from all marital property and all other property of the incurring spouse.
766.55(2)(c)1.
An obligation incurred by a spouse before or during marriage that is attributable
to an obligation arising before marriage or to an act or omission occurring before
marriage may be satisfied only from property of that spouse that is not marital
property and from that part of marital property which would have been the property
of that spouse but for the marriage.
766.55(2)(c)2. An obligation incurred
by a spouse before, on or after January 1, 1986, that is attributable to an obligation
arising before January 1, 1986, or to an act or omission occurring before January
1, 1986, may be satisfied only from property of that spouse that is not marital
property and from that part of marital property which would have been the property
of that spouse but for the enactment of this chapter.
766.55(2)(cm) An obligation
incurred by a spouse during marriage, resulting from a tort committed by the spouse
during marriage, may be satisfied from the property of that spouse that is not
marital property and from that spouse’s interest in marital property.
766.55(2)(d)
Any other obligation incurred by a spouse during marriage, including one attributable
to an act or omission during marriage, may be satisfied only from property of
that spouse that is not marital property and from that spouse’s interest
in marital property, in that order.
766.55(2m) Unless the dissolution decree
or any amendment to the decree so provides, no income of a nonincurring spouse
is available for satisfaction of an obligation under sub. (2) (b) after entry
of the decree. Marital property assigned to each spouse under that decree is available
for satisfaction of such an obligation to the extent of the value of the marital
property at the date of the decree. If a dissolution decree provides that the
nonincurring spouse is responsible for satisfaction of the obligation, the obligation
may be satisfied as if both spouses had incurred the obligation.
766.55(3)
This chapter does not alter the relationship between spouses and their creditors
with respect to any property or obligation in existence on the determination date.
An obligation of a guarantor, surety or indemnitor arising after the determination
date under a guaranty or contract of indemnity or surety executed before the determination
date is an obligation in existence on the determination date.
766.55(4)
Any written consent signed by a creditor which diminishes the rights of the creditor
provided in this section is binding on the creditor.
766.55(4m) Except as
provided under s. 766.56 (2) (c), no provision of a marital property agreement
or of a decree under s. 766.70 adversely affects the interest of a creditor unless
the creditor had actual knowledge of that provision when the obligation to that
creditor was incurred or, in the case of an open-end plan, as defined under s.
766.555 (1) (a), when the plan was entered into. If a creditor obtains actual
knowledge of a provision of a marital property agreement or decree after an obligation
is incurred or an open-end plan is entered into, the provision does not adversely
affect the interest of the creditor with respect to that obligation or plan, including
any renewal, extension, modification or use of the obligation or plan. The effect
of this subsection may not be varied by a marital property agreement or a decree.
This subsection does not affect the application of ch. 706.
Obligations
of spouses under open-end plans.
766.555(1)(a) “Open-end plan”
means credit extended on an account pursuant to a plan under which the creditor
may permit a spouse to make purchases or obtain loans, from time to time, directly
from the creditor or indirectly by use of a credit card, check or other device,
as the plan may provide.
766.555(1)(b) “Open-end plan” includes
only those open-end plans entered into by a person whose spouse is not a party
to the account.
766.555(2)(a) This subsection applies to spouses for whom
the determination date is 12:01 a.m. on January 1, 1986.
766.555(2)(b) Unless
additional property is available under par. (c), an obligation incurred by a spouse
on or after January 1, 1986, under an open-end plan entered into by that spouse
before January 1, 1986, may be satisfied only from property of that spouse that
is not marital property and from that part of marital property that would have
been the property of that spouse but for the enactment of this chapter.
766.555(2)(c)1.
An obligation described under s. 766.55 (2) (b) incurred by a spouse on or after
January 1, 1986, under an open-end plan entered into by that spouse before January
1, 1986, may be satisfied only from property of that spouse that is available
under par. (b) and, if the creditor gives written notice complying with this paragraph
to both spouses prior to the date the obligation is incurred, from all marital
property.
766.555(2)(c)2. The notice under subd. 1. shall describe the nature
of the open-end plan and state that an obligation described under s. 766.55 (2)
(b) that is incurred under the open-end plan may be satisfied from all marital
property of the spouses, including the income of both spouses, and from the property
of the incurring spouse that is not marital property.
766.555(2)(c)3. The
notice under subd. 1. is considered given on the date it is mailed by the creditor.
766.555(2)(c)4.
The notice under subd. 1. may be enclosed in an envelope addressed to the incurring
spouse at the last-known address of that spouse appearing on the records of the
creditor if a statement appears on the face of the envelope alerting both spouses
that the envelope contains important information for both spouses.
766.555(3)(a)
This subsection applies to persons for whom the determination date is after 12:01
a.m., January 1, 1986.
766.555(3)(b) Except as provided under par. (c),
an obligation incurred by a spouse after the determination date for that spouse,
under an open-end plan entered into by that spouse before that determination date,
may be satisfied only from all property of that spouse that is not marital property
and from that part of marital property which would have been the property of that
spouse but for the enactment of this chapter.
766.555(3)(c) An obligation
described under s. 766.55 (2) (b) incurred by a spouse after the determination
date for that spouse under an open-end plan entered into by that spouse before
that determination date may be satisfied from all marital property and all other
property of the incurring spouse.
Credit transactions with married persons.
766.56(1) If a spouse applies for credit that will result in an obligation described
under s. 766.55 (2) (b), the creditor, in evaluating the spouse’s creditworthiness,
shall consider all marital property available under s. 766.55 (2) (b) to satisfy
the obligation in the same manner that the creditor, in evaluating the creditworthiness
of an unmarried credit applicant, considers the property of an unmarried credit
applicant available to satisfy the obligation.
766.56(2)(a) The recording,
under s. 59.43 (1) (r), of a marital property agreement or a unilateral statement
or revocation under s. 766.59 does not constitute actual or constructive notice
to 3rd parties. This paragraph does not affect the application of ch. 706.
766.56(2)(b)
A creditor shall include in every written application for an extension of credit
that is governed by chs. 421 to 427 a notice that no provision of a marital property
agreement, a unilateral statement under s. 766.59 or a court decree under s. 766.70
adversely affects the interest of the creditor unless the creditor, prior to the
time the credit is granted, is furnished a copy of the agreement, statement or
decree or has actual knowledge of the adverse provision when the obligation to
the creditor is incurred. The notice requirement under this paragraph does not
apply to renewals, extensions or modifications or the use of an open-end credit
plan.
766.56(2)(c) If the applicant spouse in any credit transaction discloses
the existence of a currently effective marital property agreement or a decree
issued under s. 766.70 and provides a copy of it to the creditor prior to the
time credit is granted or, in the case of an open-end plan, as defined under s.
766.555 (1) (a), prior to the time the open-end plan is entered into, the creditor
is bound by any property classification, characterization of an obligation, or
management and control right contained in the agreement or decree. If a spouse
discloses the existence of an agreement or decree after credit is granted or an
open-end plan is entered into, the creditor is not bound under this paragraph
by the agreement or decree with respect to that obligation or open-end plan, including
any renewals, extensions, modifications or use of the obligation or open-end plan.
766.56(2)(d)
When a person applies for credit, the creditor may inquire as to whether the person
is married, unmarried or separated, under a decree of legal separation.
766.56(3)(a)
In this subsection, “extends credit” means that an open-end credit plan,
as defined under s. 421.301 (27), is established after the determination date,
or that credit other than open-end credit is extended after the determination
date. The term does not include renewals, extensions, modifications or the use
of an open-end credit plan. This subsection does not apply to an open-end credit
plan described under s. 766.555 (2) or (3).
766.56(3)(b) Except as provided
in par. (c), if a creditor extends credit to a spouse in a credit transaction
governed by chs. 421 to 427 and the extension of credit may result in an obligation
described under s. 766.55 (2) (b), the creditor shall give the nonapplicant spouse
written notice of the extension of credit before any payment is due. The notice
requirement may be satisfied by providing a copy of the instrument, document,
agreement or contract evidencing the obligation to pay or any required credit
disclosure which is given to the applicant spouse, or by providing a separate
writing briefly describing the nature of the credit extended. Notice is considered
given on the date it is mailed to the address of the nonapplicant spouse provided
to the creditor by the applicant spouse. If the applicant spouse informs the creditor
that the spouses reside at the same address, the notice may be enclosed in an
envelope addressed to the nonapplicant spouse or both spouses.
766.56(3)(c)
Notice is considered given under par. (b) if the nonapplicant spouse has actual
knowledge that the credit is extended or waives the notice requirement in a signed
writing.
766.56(4)(a) Any financial organization or any other credit-granting
commercial institution that violates sub. (1) is subject to the penalties under
s. 138.20.
766.56(4)(b) Except as provided in par. (c), a creditor that
fails to give notice under sub. (2) (b) is liable to each applicant spouse in
the amount of $25. Except as provided in par. (c), a creditor that fails to give
notice under sub. (3) is liable to the nonapplicant spouse in the amount of $25.
766.56(4)(c)
A creditor is not subject to a penalty under par. (b) if the creditor shows by
a preponderance of the evidence that failure to give notice was unintentional
and resulted from a bona fide error notwithstanding the maintenance of procedures
reasonably adapted to avoid such error.
Relationship to consumer act. 766.565(1)
In this section, “open-end credit plan” has the meaning given under
s. 421.301 (27). The term includes only those plans governed by chs. 421 to 427.
766.565(2)
Except as provided under sub. (6), this section does not impose any additional
or separate notice requirements on a creditor.
766.565(3) The spouse of
a person who incurs an obligation described under s. 766.55 (2) (b) and governed
by chs. 421 to 427 may exercise rights and remedies available to the incurring
spouse under chs. 421 to 427.
766.565(4) Section 422.305 does not apply
to the spouse of a person who incurs an obligation described under s. 766.55 (2)
(b) unless that spouse also signs the writing evidencing the credit transaction
or a separate guarantee or similar instrument and unless the other requirements
of s. 422.305 are met.
766.565(5) The spouse of a person who establishes
an open-end credit plan that may result in an obligation described under s. 766.55
(2) (b) may terminate the plan by giving written notice of termination to the
creditor. A writing evidencing an open-end credit plan may include a provision
that authorizes the creditor to declare the account balance due and payable upon
receipt of notice of termination, notwithstanding s. 425.103 or 425.105. Notice
of termination does not affect the liability of the incurring spouse or the availability
of the incurring spouse’s interest in marital property or other property
of that spouse to satisfy obligations incurred under the open-end credit plan,
both before and after the notice of termination. Subject to the limits under s.
422.4155 (1), the terminating spouse’s interest in marital property continues
to be available under s. 766.55 (2) (b) to satisfy obligations incurred in the
interest of the marriage or family both before and after notice of the termination.
A creditor may consider in its evaluation of subsequent applications for credit
the fact that a prior open-end credit plan offered by the creditor and entered
into by the applicant spouse has been terminated under this subsection.
766.565(6)
Written notice to a spouse under s. 422.415 (2) (a) or (c) concerning an increase
in the rate of finance charge is not effective with respect to the interest of
the nonincurring spouse in marital property unless notice is given to both spouses.
Notice is considered given on the date it is mailed by the creditor. The notice
may be enclosed in an envelope addressed to the incurring spouse at the last-known
address of that spouse appearing on the records of the creditor if a statement
appears on the face of the envelope alerting the spouses that the envelope contains
important information for both spouses.
766.565(7) With respect to consumer
credit transactions, the division of banking may promulgate rules to interpret
this chapter and chs. 421 to 427, consistent with the purposes and policies of
this chapter and chs. 421 to 427.
Marital property agreements. 766.58(1)
A marital property agreement shall be a document signed by both spouses. Only
the spouses may be parties to a marital property agreement. A marital property
agreement is enforceable without consideration.
766.58(3) Except as provided
in ss. 766.15, 766.55 (4m), 766.57 (3) and 859.18 (6), and in sub. (2), in a marital
property agreement spouses may agree with respect to any of the following:766.58(3)(a)
Rights in and obligations with respect to any of either or both spouses’
property whenever and wherever acquired or located.
766.58(3)(b) Management
and control of any of either or both spouses’ property.
766.58(3)(c)
Disposition of any of either or both spouses’ property upon dissolution or
death or upon the occurrence or nonoccurrence of any other event.
766.58(3)(d)
Modification or elimination of spousal support, except as provided in sub. (9).
766.58(3)(e)
Making a will, trust or other arrangement to carry out the marital property agreement.
766.58(3)(f)
Providing that upon the death of either spouse any of either or both spouses’
property, including after-acquired property, passes without probate to a designated
person, trust or other entity by nontestamentary disposition. Any such provision
in a marital property agreement is revoked upon dissolution of the marriage as
provided in s. 767.266 (1). If a marital property agreement provides for the nontestamentary
disposition of property, without probate, at the death of the 2nd spouse, at any
time after the death of the first spouse the surviving spouse may amend the marital
property agreement with regard to property to be disposed of at his or her death
unless the marital property agreement expressly provides otherwise and except
to the extent property is held in a trust expressly established under the marital
property agreement.
