Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
1. Overview of Wisconsin’s Probate Claims Process
When a person dies in Wisconsin, the personal representative (executor) must notify creditors and allow them to present claims against the estate. Under Wis. Stat. § 857.01, you must publish notice in a local paper and send direct notice to known creditors. Creditors then generally have four months to file a proof of claim under Wis. Stat. § 857.05 (see https://docs.legis.wisconsin.gov/statutes/statutes/857/05).
2. Recognizing Predatory Lending Violations
Predatory lending may violate Wisconsin’s Uniform Consumer Credit Code (Wis. Stat. ch. 138). Common violations include:
- Usury: Wis. Stat. § 138.04 caps most consumer loans at 12% APR. Any rate above this limit is void. (§ 138.04)
- Excessive fees or hidden charges that push the annual percentage rate above statutory caps.
- Licensing irregularities: Lenders must hold a valid license under Wis. Stat. ch. 138.
3. Objecting to a Creditor’s Claim
If a creditor files a claim based on a predatory loan, the executor can disallow it. Under Wis. Stat. § 863.28, you must file a written objection stating your grounds for disallowance (e.g., usury, unconscionability, lack of licensing). See § 863.28 for form and timing requirements.
4. Petitioning the Court for Review
If the creditor contests your objection, file a petition under Wis. Stat. § 863.30. That statute sets out the procedure for a hearing in probate court. You’ll need to:
- File the petition and serve all interested parties. (See § 863.30.)
- Present evidence: loan documents, interest rate calculations, licensing records, and any written disclosures.
- Argue that the loan is void or unenforceable due to statutory violations.
5. Potential Outcomes and Remedies
If the court finds predatory practices, it may disallow the claim in full. In some cases, the estate may pursue restitution or damages under consumer-protection statutes, but this often requires a separate action.
Helpful Hints
- Gather all loan paperwork, including promissory notes and disclosure forms.
- Calculate the actual APR and compare it to the 12% cap in Wis. Stat. § 138.04.
- Check the lender’s license status at the Department of Financial Institutions.
- Note deadlines: object within two months after the creditor files its proof of claim.
- Consider consulting an attorney experienced in Wisconsin probate and consumer law for complex claims.