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Remedies for Civil Fraud, Theft and Misrepresentation in Wisconsin
When the economy is tough it can push people to do desperate things. As businesses are struggle, sometimes people in places of trust act in a manner that may or may not be indicative of their personality. Wisconsin business owners, customers or clients can become the victim of financial misconduct at the hands of a trusted fiduciary. What types of remedies exist in Wisconsin so that a person can recover if they are a victim of theft or misrepresentation?
This, of course depends solely on the scenario and facts in the incident. Traditionally, if you were involved in as a victim or perpetrator of financial fraud or malfeasance, you could be the subject of a number of Wisconsin common law tort claims such as misrepresentation, conversion, fraud, breach of fiduciary among others. Not to mention one can open themselves up to criminal prosecution. That being said, the economic loss doctrine, which has been embraced by Wisconsin courts, has made pursuing common law tort claims against businesses, individuals and other fiduciaries more difficult when there is a specific contract for goods or products provided. Depending on the facts and situation it is not impossible; however, pursuing a common law tort claim can be more challenging for plaintiffs in these situations when a contract is present. With that in mind, there are a number of Wisconsin statutes that provide relief to victims of financial theft, fraud or malfeasance.
One of these statutory remedies can be found in section 100.18, Stats. This statute deals with the damages associated with the publishing of untrue, deceptive or misleading advertisements with the intent induce the public in any manner to enter into a contract. If a seller were to violate this statute they could be subject to paying the buyer his monetary losses, including costs of collection and attorney fees. §100.18 (11)(b)(2), Stats. This sort of remedy applies to a number of varying business transactions in order to discourage people from using deceptive or misleading information to cause a person or business to enter into a contract.
Failing to disclose untrue facts relating to a business transaction or real estate transaction can not only have the potential to subject a person to damages under the consumer protection statutes, civil theft statutes can apply as well. The elements of theft-by-fraud contrary to section 943.20(1)(d), Stats., are as follows:
(1) the defendant made a false representation to the owner of the property;
(2) the defendant knew that the representation was false;
(3) the defendant made the representation with the intent to deceive and defraud the property's owner;
(4) the defendant got title to the property as a result of the false representation;
(5) the owner of the property was deceived by the representation; and
(6) the owner of the property was thus defrauded.
State v. Kurzawa, 180 Wis. 3d 502, 525, n. 15, 509 N.W.2d 712, 722 n. 15 (1994). This statute can be applicable within a civil cause of action and damages can be obtained pursuant to section 895.446, Stats. As the legislature outlined in section 895.446, Stats.,damages are controlled as follows:
(3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover all of the following:
(a) Actual damages, including the retail or replacement value of damaged, used, or lost property, whichever is greater, for a violation of s, 943.01, 943.011, 943.012, 943.017,943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50,943.61, 943.74, or 943.76.
(b) All costs of investigation and litigation that were reasonably incurred, including the value of the time spent by any employee or agent of the victim.
(c) Exemplary damages of not more than 3 times the amount awarded under par. (a). No additional proof is required under this section for an award of exemplary damages under this paragraph.
These Wisconsin consumer protection statutes are not the only remedies that can be used to recover monies, there are federal civil RICO statutes and state WOCCA statutes that often apply. Having said this, successful claims pursuant to sections 100.18 or 943.20,Stats, might have devastating effects for defendants at trial. Many times a person can not only recover the money that was lost on the fraudulent transaction, but also their attorney fees and costs of collection as well. Moreover, under 894.446, Stats., one can recover treble damages which allows for an award of three times actual damages the plaintiff is awarded. It can get expensive in a hurry to defraud people in Wisconsin. Of course, that is assuming that the person or company being chased actually has assets to recover from if a lawsuit is successful.
If you find that you are embroiled in a case as either as a victim or as one accused of financial misconduct you need to consult with counsel that are experienced in handling these types of cases from both sides of the aisle.
Remedies for Civil Fraud, Theft and Misrepresentation in Wisconsin
