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Casenotes

Wisconsin

Foreclosure

Sweeney v Petska, WL 697231 (Wis Ct App, 2010).

Facts:In January 2003, William and Kimberly Petska executed a mortgage and note payable to Patrick Sweeney for $174,459.96 plus interest. Kimberly's mother, Ruth Baker, signed both the mortgage and the note as a partial guarantor for $65,000 of value. In December 2006, Sweeney commenced a foreclosure action against William, but did not serve notice on Kimberly or her mother. In April 2007, the court entered a default judgment against William, but the judgment indicated that no deficiency would be entered against William.

Sweeney took possession of the property, added improvements, and leased it to other parties. In January 2008, Sweeney moved to reopen the judgment and to remove the waiver of deficiency for William. He also moved to amend the complaint to add Kimberly and her mother as defendants, seeking additional property that secured the promissory note. The trial court denied Sweeny&€™s requests and he appealed that ruling.

Holding:Affirmed. Sweeney&€™s motion fell well beyond the six month time period for parties to amend their complaints. Therefore, he might only amend with leave from the court. Wis. Stat. &§ 802.09. Wisconsin liberally allows amendments before a judgment is entered, but afterward, amendment is not favored in the interest of finality.

Whether to allow amendment is within the discretion of a trial court. The court must balance the interests of opposing parties. In this case, the court denied Sweeney&€™s motion because Sweeney failed to include Kimberly and her mother in the original action and then sought to amend merely to recover more money. Furthermore, the current value of the deficiency was hopelessly difficult to compute due to Sweeney&€™s subsequent improvements and the altered real estate climate. Therefore, the prejudice to Kimberly and her mother outweighed Sweeney&€™s interest in amending the complaint.

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[Last update: 11-17-10]