Agricultural Credit and Wisconsin's Marital Property Law
Written September 22, 1998
You requested the opinion of this department regarding whether the marital property "tattletale" notice required by sec. 766.56(3)(b), Wis. Stats., applies to the extension of agricultural credit. Sec. 766.56(3)(b) applies when "a creditor extends credit to a spouse in a credit transaction governed by chs. 421 to 427 [the Wisconsin Consumer Act ("WCA")]." As you know, agricultural credit was exempted from most of the Wisconsin Consumer Act by 1997 Wisconsin Act 302. As you state in your letter, it is clear that, by Act 302, the legislature intended to exclude agricultural credit from the general provisions of the WCA. Sec. 421.202(10) now states that chapters 421 to 427 do not apply to:
(10) Transactions that are primarily for an agricultural purpose, except that this subsection does not exclude transactions that are primarily for an agricultural purpose from ch. 427 and except that this subsection does not exclude transactions that are primarily for an agricultural purpose from s. 422.210.
You correctly assert that this language specifically excludes agricultural
transactions from chapters 421 to 427 and carves out narrow exceptions
to this exclusion.
As you point out, the legislature went through the entire Wisconsin Consumer Act removing explicit references to agricultural transactions and creating new references to them in sections dealing with exclusions, in the "scope" section of chapter 427, and in the one section that was added to the statutes (sec. 422.210). Sec. 766.56(3) did not contain a specific reference to agricultural transactions. Therefore, it was unnecessary for the legislature to remove any reference to such transactions from that section. If the legislature had intended to include agricultural transactions within the scope of the "tattletale" notice requirement, it could have added a reference to such transactions similar to that contained in the "scope" section of chapter 427. Therefore, agricultural transactions are no longer "governed by" chapters 421 to 427.
Further, I agree with your contention that extension of agricultural credit does not meet the definition of "extending credit," as used in sec. 766.56(3)(b). As you mention, the definition of "extends credit" specifically refers to the definition of "open-end credit plan" set forth at sec. 421.301(27) and to the phrase "other than open-end credit," which is defined at sec. 421.301(29). Both of these definitions include the phrase "consumer credit transaction" as essential parts of the definitions.
A "consumer credit transaction" is defined at sec. 421.301(10) as "a consumer transaction between a merchant and a customer . . . ." The definition of "customer" set forth at sec. 421.301(17) was changed as a result of 1997 Wisconsin Act 302 to now include a limitation on the phrase "agricultural purposes" by placing immediately before that phrase "for purposes of chapter 427 only." It is the opinion of this department that this limited inclusion of agricultural credit in the definition of "customer" is not enough to expand the concept of "consumer credit" under sec. 421.310(17) to cover agricultural credit transactions, except for the limited purpose of chapter 427, relating to debt collection practices.
Pursuant to its authority under sec. 426.104(4)(e), Stats., it is the opinion of this department that the notice requirements of sec. 766.56(3)(b) no longer apply to transactions that are primarily for an agricultural purpose. The reason for this is such transactions are not "governed by" Chapters 421 to 427 and are not included in the term "extends credit." Therefore, a creditor entering into a credit transaction primarily for an agricultural purpose after the effective date of 1997 Wisconsin Act 302 does not have to send the notice required by sec. 766.56(3)(b).