Wendy Treuthardt v. Connexus Credit Union

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 11, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP482 Cir. Ct. No. 2021CV58

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

WENDY TREUTHARDT,

PLAINTIFF-APPELLANT,

V.

CONNEXUS CREDIT UNION,

DEFENDANT-RESPONDENT,

ROSEN NISSAN OF MADISON, LLC,

DEFENDANT.

APPEAL from an order of the circuit court for Green County:
MARK A. FRANKEL, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2025AP482

¶1 PER CURIAM. Wendy Treuthardt brought claims under the
Wisconsin Consumer Act against Connexus Credit Union related to its attempt to
collect on a debt that Treuthardt owes to Connexus under a vehicle loan.
Treuthardt alleges that Connexus: failed to provide her with a proper notice of her
right to cure her default before it took possession of her vehicle; committed a
breach of the peace when it took the vehicle, because at that time she expressed to
Connexus’s agents what she characterizes as a “verbal objection” to its taking; and
in various ways violated debt collection practices prohibited under WIS. STAT.
§ 427.104(1) (2023-34).1 On appeal, Treuthardt challenges rulings by the circuit
court denying Treuthardt’s motion for summary judgment and partially granting
summary judgment in favor of Connexus. We reject Treuthardt’s arguments
regarding each of the court’s summary judgment rulings. Accordingly, we affirm.

BACKGROUND

¶2 Treuthardt purchased a vehicle from Rosen Nissan of Madison (“the
dealership”) on November 16, 2019. Treuthardt paid for the vehicle using
proceeds from a loan financed by Connexus. As part of this transaction,
Treuthardt entered into an installment contract with the dealership. A few days
after the purchase, Connexus assumed the dealership’s position under the
contract.2

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
For context, we note that an entity named “FILO” approved the credit application for a
loan before assigning the loan to Connexus. So far as the parties present the issues on appeal,
nothing about the assignment affects our analysis and we do not refer to FILO again.

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¶3 In early 2020, Treuthardt fell behind on payments required under the
terms of the loan. In April 2020, Connexus sent Treuthardt a notice of her right to
cure this default. Connexus then agreed to defer two missed payments, but
Treuthardt continued to miss subsequent payments. Connexus eventually directed
agents to take possession of the vehicle, which occurred in February 2021.

¶4 Treuthardt commenced this action against the dealership and
Connexus in March 2021.

¶5 Regarding the dealership, Treuthardt alleged that it engaged in
“fraudulent action[s]” with respect to her vehicle purchase. Pertinent to this
appeal, she alleged that a dealership employee included incorrect information
regarding her employment and income on the credit application that the dealership
submitted to Connexus on Treuthardt’s behalf. Treuthardt eventually reached a
settlement with the dealership regarding her claims against it.

¶6 As for Connexus, Treuthardt claimed that it engaged in
“impermissible collection actions” prohibited under various provisions of the
Wisconsin Consumer Act. See WIS. STAT. § 421.101. The operative complaint
made the following pertinent allegations in support of her consumer act claims:
Connexus failed to provide Treuthardt with a proper notice of her right to cure her
default before taking possession of the vehicle; the agents working for Connexus
took possession of the vehicle over what Treuthardt characterized as her “verbal
objection”; Connexus charged Treuthardt $125 as a purported fee for the cost of
taking possession of the vehicle months before Connexus actually had its agents
take the vehicle; and Connexus sent Treuthardt information about how to redeem
the vehicle to a residential address where she had not lived for approximately 20
years.

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¶7 Connexus filed an answer to the operative complaint that included
numerous affirmative defenses. These defenses included the allegation that
Treuthardt made “a material false statement” on her credit application by
providing an inaccurately high figure for her monthly income.3

¶8 Treuthardt and Connexus both brought motions for summary
judgment. Treuthardt specifically sought a ruling that there is no genuine dispute
that she proved liability on each of her claims against Connexus under the
consumer act. She also sought a ruling that none of the affirmative defenses
asserted by Connexus are viable. Connexus moved for summary judgment on
some of Treuthardt’s claims against Connexus.

¶9 The circuit court denied Treuthardt’s motion for summary judgment
in its entirety. The court partially granted Connexus’s motion and dismissed some
of Treuthardt’s claims, namely the right-to-cure notice claim and one of her WIS.
STAT. § 427.104(1) claims.4

¶10 Treuthardt and Connexus later essentially renewed their respective
motions for summary judgment on one of Treuthardt’s remaining claims, asking
the circuit court to make a determination based on undisputed facts. This was
Treuthardt’s claim that Connexus’s agents breached the peace by taking

3
Connexus also brought counterclaims against Treuthardt that included breach of
contract, but nothing about these counterclaims matters for purposes of this appeal except to the
extent that the counterclaims involved the same allegation that supported some of Connexus’s
affirmative defenses, namely, that Treuthardt provided material false information in her credit
application to finance the purchase.
4
The Hon. Thomas Vale decided the parties’ summary judgment motions and
subsequently denied a motion by Treuthardt for reconsideration of these summary judgment
rulings. All other rulings pertinent to this appeal were made by the Hon. Mark A. Frankel.

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No. 2025AP482

possession of the vehicle over her “verbal objection.” The court granted summary
judgment in favor of Connexus and dismissed the breach of peace claim.

¶11 A jury trial was held on Treuthardt’s remaining claims, including
that Connexus violated the consumer act by charging her for taking possession of
the vehicle before the agents took it. Following the close of Treuthardt’s case, the
circuit court granted Connexus’s motion for a directed verdict dismissing her
claim that Connexus improperly charged a fee before it took possession of the
vehicle.

¶12 As a result of the circuit court’s earlier rulings, only one claim was
submitted to the jury.5 The jury returned a verdict in favor of Connexus on that
claim. The circuit court issued a written order dismissing Treuthardt’s final claim
consistent with the jury verdict.

¶13 Treuthardt appeals this final order, challenging the prior nonfinal
circuit court orders dismissing claims before trial.

5
The claim tried to the jury involved Connexus charging Treuthardt for a “force-placed”
insurance policy on the vehicle after Connexus took possession of the vehicle. On appeal,
Treuthardt does not raise any issue related to this claim, and we address it no further.

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No. 2025AP482

DISCUSSION

¶14 Although it is at times unclear in Treuthardt’s appellate briefing, by
the time of her reply brief she clarifies that she exclusively challenges rulings
made by the circuit court under summary judgment standards.6

¶15 This court reviews an order resolving a motion for summary
judgment de novo, applying the same methodology as the circuit court. Aker v.
Good Sportsman Mktg., LLC, 2026 WI App 3, ¶22, 419 Wis. 2d 460, 31 N.W.3d
1. “Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.’” Id. (quoting WIS. STAT. § 802.08(2)).
“A factual issue is ‘genuine’ if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Strasser v. Transtech Mobile Fleet
Serv., Inc., 2000 WI 87, ¶32, 236 Wis. 2d 435, 613 N.W.2d 142.

¶16 “If the moving party has made a prima facie case” in favor of
summary judgment, the court examines the summary judgment submissions “to
determine whether disputed material facts exist, or whether reasonable conflicting
inferences may be drawn from undisputed facts, therefore requiring a trial.”

6
The only exception is Treuthardt’s challenge to the circuit court’s directed verdict that
resulted in the dismissal of two of her claims based on the theory that Connexus should not have
charged her in advance for taking possession of the vehicle. She challenges this ruling for the
first time in her appellate reply brief. We do not consider this argument because Treuthardt raises
it too late. See CreditBox.com, LLC v. Weathers, 2023 WI App 37, ¶36, 408 Wis. 2d 715, 993
N.W.2d 802 (court of appeals need not address arguments raised for the first time in a reply brief
(citing A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App.
1998))). Further below, we address Treuthardt’s argument that the circuit court should have
granted summary judgment in her favor on these claims.

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No. 2025AP482

Brenner v. National Cas. Co., 2015 WI App 85, ¶17, 365 Wis. 2d 476, 872
N.W.2d 124. It is not sufficient for a party opposing summary judgment to rest on
“‘the mere allegations or denials of the pleadings.’” Racine County v. Oracular
Milwaukee, Inc., 2010 WI 25, ¶30 n.9, 323 Wis. 2d 682, 781 N.W.2d 88 (quoting
WIS. STAT. § 802.08(3)). Instead, the party opposing summary judgment, “‘by
affidavits or as otherwise provided in [§ 802.08], must set forth specific facts
showing that there is a genuine issue for trial.’” Id. (quoting § 802.08(3)).

¶17 The summary judgment materials are viewed in the light most
favorable to the nonmoving party. AccuWeb, Inc. v. Foley & Lardner, 2008 WI
24, ¶16, 308 Wis. 2d 258, 746 N.W.2d 447.

I. Right to Cure Notice; Material False Statement

¶18 Treuthardt argues that the circuit court erred by concluding that there
is no genuine issue of material fact that Connexus was not subject to the notice
requirements of WIS. STAT. § 425.105 before it took possession of the vehicle.
Based on our de novo review, we conclude that the court was correct on this point.

¶19 When applicable, WIS. STAT. § 425.105(1) prohibits a merchant
from taking possession of collateral from a customer until certain conditions are
met.7 These conditions include that “the merchant believes [that] the customer” is
in default. See § 425.105(1). Further, “if the customer has the right to cure under”
§ 425.105, the merchant may take possession of the collateral “only upon the
expiration of 15 days after a notice is given” to the customer pursuant to WIS.

7
There is no dispute that at all relevant times Treuthardt qualified as a “customer” and
Connexus as a “merchant” for purposes of the Wisconsin Consumer Act. See WIS. STAT.
§ 421.301(17), (25).

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No. 2025AP482

STAT. § 425.104(1). See § 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.”).

¶20 Pertinent here, WIS. STAT. § 425.105(3m) provides that the customer
does not have a right to cure, and therefore the merchant is not required to provide
notice of such a right under § 425.105(1), when the customer has defaulted on a
collateralized debt in the following way: “making a material false statement in the
customer’s credit application that precedes [a] consumer credit transaction” to
purchase a motor vehicle. See WIS. STAT. § 425.103(2)(bm).

¶21 Here, the circuit court concluded that there is no genuine dispute that
Treuthardt made a material, false statement in her credit application. Accordingly,
Connexus was not required to wait until 15 days expired following the giving of a
notice of a right to cure before taking possession of the vehicle, because she had
no right to receive this notice. As we explain in the following subsections of this
opinion, the summary judgment submissions support dismissal of Treuthardt’s
right-to-cure notice claim because there is no genuine dispute that Treuthardt
made a material, false statement about her income when she signed the credit
application.

A. Signatures on Credit Application

¶22 Treuthardt concentrates much of her argument regarding the credit
application on whether there is a genuine issue as to whether she signed it. We
now provide additional background on this topic.

¶23 Treuthardt gave the following pertinent deposition testimony. She
began leasing the vehicle from the dealership in 2016. In 2019, she decided to

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No. 2025AP482

exercise her right under the lease to purchase it. She planned to finance the
purchase through a loan. Treuthardt went to the dealership to purchase the vehicle
on November 16, 2019. She recalled going back to an office at the dealership with
an employee and that she signed documents that he gave her, but she did not recall
which specific documents she signed.

¶24 During her deposition, Treuthardt was presented with exhibits that
purport to be the documents that she signed as part of the purchase process. This
included a credit application, which was accompanied in the summary judgment
materials by a sworn affidavit of a Connexus employee acting as record custodian.
The credit application purports to show Treuthardt’s signature in two places. The
first signature appears in a field part way down the first page, next to which there
is text stating, “By signing you certify that the income entered on this credit
application is accurate.” (Capitalization in original omitted.) Above this signature
field is a series of other fields that are filled in. This includes a completed field for
monthly salary, reflecting Treuthardt’s to be $2,800.00. Treuthardt testified that
this first signature on the credit application “could be” hers. She further testified
that the only basis she had to doubt that it is her signature was that she could not
recall signing that particular document.

¶25 The second signature on the credit application is at the end of the
first page, following the statement, “by signing below, you certify that you have
read and agree to the terms and disclosures on all pages of this application.” (All-
caps omitted.) These terms include a section labeled “Agreement,” which
includes the following:

You understand and agree that you are applying for credit
by providing the information to complete and submit this
credit application…. You certify that the information on

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No. 2025AP482

the application … is true and complete. You understand
that false statement may subject you to criminal penalties.

This section of the application defines “you” as the credit applicant and defines
“us” as “the dealer, and to the financial institution(s)” that would be “selected to
receive” the credit application. As with the first signature, Treuthardt testified that
the second “could be” hers. She also testified that she did not “fully” read the
documents that she was asked to sign. She testified that this was because she did
not have enough time to read them, although she acknowledged that she was not
told by the dealership employee that she had a limited amount of time to review
any document.

¶26 Given this evidence, the following statutory presumption is triggered
here: “when the signing of [any written instrument] is put in issue and instrument
purports to have been signed, the instrument itself is proof that it was signed until
denied by the oath or affidavit of the person by whom it purports to have been
signed.” See WIS. STAT. § 891.25. Treuthardt testified that she in fact signed
documents in the dealership office, and she did not deny that the two signatures on
the document could have been hers. Stated in terms of summary judgment
procedure, the evidence creates a prima facie case that she signed the credit
application in the two places, and Treuthardt offered no evidence to rebut this
prima facie case.

¶27 Treuthardt emphasizes that, regarding a different document involved
in the vehicle purchase (a “vehicle receipt and odometer disclosure statement”),
she affirmatively testified that her initials were forged by someone else. She
apparently intends to suggest that her testimony about the initials on a separate
purchase document raises a reasonable inference that the signatures on a document
used to finance the purchase may have been forged. But it would be mere

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No. 2025AP482

speculation to draw such an inference. See North Highland Inc. v. Jefferson
Mach. & Tool Inc., 2017 WI 75, ¶22, 377 Wis. 2d 496, 898 N.W.2d 741 (“‘It is
not enough to rely upon unsubstantiated conclusory remarks, speculation, or
testimony that is not based upon personal knowledge.’” (quoted source omitted)).
Indeed, Treuthardt’s forgery allegation about a different document primarily
serves to underscore the lack of similar evidence that could undermine the prima
facie case that she signed the credit application.

B. False Income Information

¶28 This brings us to the issue of whether, at the time Treuthardt signed
the credit application, the income field was filled in and contained material, false
information. The following evidence in the summary judgment submissions is
relevant.

¶29 In her deposition, Treuthardt testified that she did not recall what her
monthly income would have been at the time of the vehicle purchase, but she was
certain that it was lower than the $2,800 shown on the credit application. From
context, the only reasonable inference from her testimony was that her actual
salary was lower than $2,800 by a meaningful amount. She did not recall what, if
anything, she would have told the dealership employee about her monthly income,
but she would not have said $2,800, because she had “never made” that much per
month. Asked if she thought that the dealership intentionally filled in false income
information on her credit application, Treuthardt responded, “I don’t know what
[the dealership] did.”

¶30 James Hutchcroft, a “finance manager” for the dealership, testified
to the following in a deposition. He was the employee who asked Treuthardt to
sign the documents that had to be completed and executed for the vehicle sale,

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including the financing aspect. Hutchcroft testified as follows in his deposition.
Hutchcroft described his duties in a sale such as the one here as follows: he would
orally “gather information” from the customer necessary to complete the
paperwork, “type it in the computer, print [the paperwork] out, have the …
customer verify” that the information reflected in the paperwork was accurate, and
then ask the customer to sign the paperwork. After the customer reviewed and
signed the credit application, Hutchcroft would submit the application to potential
lenders, anticipating that a lender would approve a loan to finance the purchase.
After submission of the credit application, approval from a lender could come as
quickly as a few seconds. After a lender approved a loan, Hutchcroft would
prepare additional documents for the customer to review and sign, including a
retail installment contract. The process described by Hutchcroft was generally
consistent with Treuthardt’s deposition testimony to the extent that she testified
that she was able to secure financing and finalize her vehicle purchase over the
course of about two hours, during a single visit to the dealership.

¶31 A Connexus employee, Lamont Bonham, gave deposition testimony
and averments by affidavit to the following. Connexus relied on the information
included in the credit application provided by the dealership in determining
whether to approve the loan, which occurred on the same day that the application
was submitted. Primary considerations for a credit union, such as Connexus, in
deciding whether to approve a loan are the applicant’s income, the amount of
money loaned to the applicant, and the applicant’s credit score.

¶32 This evidence raises a prima facie case that, when Treuthardt signed
the credit application, certifying that it accurately reflected her monthly income, it
reflected what she admits was an income figure that was meaningfully above her
actual income. A key point from Hutchcroft’s testimony is that, for a transaction

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involving a financed vehicle, he would generally complete the information shown
in a credit application before handing it to the customer for review and signature.
This is not inconsistent with any of Treuthardt’s testimony about what happened at
the dealership, including that she would not have reported income as high as
$2,800 per month. Assuming that this is true, it remains that there is no evidence
showing or raising a reasonable inference that false information of any kind was
added into the credit application after Hutchcroft presented it to Treuthardt for her
review and signature. As a result, the only reasonable inference from the relevant
evidence pertinent to this issue is that Treuthardt signed a credit application to
certify the accuracy of its contents at a time when the application contained
material, false income information.

¶33 On appeal, Treuthardt argues that there is a credibility issue
regarding Hutchcroft’s testimony that renders summary judgment inappropriate
because Hutchcroft “completely changed” his testimony from one portion of the
deposition to another. Specifically, she emphasizes the following. Relatively
early in the deposition, when asked about “everything” that he said to Treuthardt
during the transaction, Hutchcroft recalled only a few details, none of which
related to the completion and signing of the credit application. Later in the
deposition, Hutchcroft gave the testimony noted above about the general process
that he used in preparing credit applications. He also testified to details about
“going through the credit application with” Treuthardt. Based on this, Treuthardt
argues that at trial she could have challenged Hutchcroft’s credibility based on
what she argues are “conflicting versions” of his pertinent testimony.

¶34 We question whether Treuthardt has identified an inconsistency that
could represent impeachment of any significance. Beyond that, even if a finder of
fact completely disregarded Hutchcroft’s testimony regarding particular details

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specific to Treuthardt’s transaction, Treuthardt does not identify evidence
rebutting the prima facie case described above. In particular, she fails to identify
any aspect of Hutchcroft’s testimony that was inconsistent or illogical in
describing how credit applications were generally prepared for review by the
customer before the prompt submission of each application to potential lenders.

¶35 Treuthardt argues that there is a genuine issue of fact regarding
whether the dealership, and not Treuthardt, was responsible for the false
information regarding her income appearing on the credit application. Because of
this, she asserts that summary judgment dismissing her right-to-cure notice claim
was inappropriate, even if there is no genuine issue of fact that she signed the
credit application containing false information. However, Treuthardt does not
explain why her certification of false information, assuming that the false
information was initially supplied by the dealership, would prevent the occurrence
of a default under WIS. STAT. § 425.103(2)(bm). In that scenario, the income
information on the credit application would still have been false, and Treuthardt
still signed the application certifying that it is was complete and true.

¶36 Treuthardt frames her argument regarding the dealership’s alleged
inclusion of false information in terms of case law discussing fraudulent
misrepresentation. She notes the following propositions from case law: “the
recipient of a fraudulent misrepresentation is justified in relying on it, unless the
falsity is actually known or is obvious to ordinary observation,” and “whether
falsity is obvious is usually a question of fact.” Hennig v. Ahearn, 230 Wis. 2d
149, 170, 601 N.W.2d 14 (Ct. App. 1999) (citations omitted). She further
observes that, as a matter of law, claiming fraudulent inducement to enter a
contract is not barred merely because the fraudulently induced party failed to read
the contract. Bank of Sun Prairie v. Esser, 155 Wis. 2d 724, 733, 456 N.W.2d

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No. 2025AP482

585 (1990). Although her argument is difficult to track, we understand her to rely
on these legal standards to argue that it is reasonably inferable that the dealership
supplied false income information by typing it into the credit application, and then
Treuthardt reasonably relied on the dealership to supply correct information when
she signed the credit application without reading it.

¶37 But these inferences are beside the point. The point is that
Treuthardt provided Connexus with false information in a manner that triggers
WIS. STAT. § 425.103(2)(bm). As discussed above, applying summary judgment
standards to pertinent parts of the record here, Connexus can rely on unrebutted
evidence that she did this. Whatever other potential remedies against the
dealership Treuthardt might theoretically have, she does not explain why the scope
of Connexus’s statutorily defined duty to provide notice of a right to cure would
be altered if the dealership supplied the false income information and Treuthardt
reasonably relied on this information as correct in signing.

¶38 Beyond this, Treuthardt’s arguments about the dealership’s allegedly
fraudulent conduct lacks support in the summary judgment materials. Treuthardt
could hardly allege that the dealership falsely represented to her what her own
monthly income was. She testified that she did not recall any discussion of the
income information, and she did not testify that she was asked not to review the
information that had been filled in on the credit application. To repeat, this leaves
nothing to refute Hutchcroft’s testimony that, in such transactions, he gathered
information and then prompted the customer to review and consider signing an
application after the information, such as income, had been filled in. In other
words, Treuthardt does not identify evidence in the record raising a reasonable
inference that she was not asked about her income before Hutchcroft filled in the
credit application with $2,800, that she gave him a lower, accurate figure that he

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disregarded, or that he incorrectly typed the figure that she gave him into the
application form, all before she signed. Further, to the extent that the dealership
presented her with false information about her own income, that would not present
the “usual[]” case in which the reasonableness of relying on that information
presented a disputed factual issue for a jury. See Hennig, 230 Wis. 2d at 170.
Again, Treuthardt testified that she would not have told the dealership that her
income was $2,800 a month, because she knew that she did not make this much.
See Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, ¶13, 270 Wis. 2d 146, 677
N.W.2d 233 (claim of misrepresentation requires, among other elements, that
induced party “believed and relied on the misrepresentation” (emphasis added)).8

II. Breach of Peace

¶39 Treuthardt argues that the circuit court erred in denying her
summary judgment on her claim that Connexus, through its agents, committed a
“breach of the peace” in taking possession of the vehicle. We conclude that the
circuit court properly denied her motion and appropriately dismissed Treuthardt’s
breach-of-peace claim.

¶40 Before discussing our conclusion further, we explain that we make
the following two assumptions. First, as noted above, we assume without deciding
that our review of this issue calls exclusively for the application of summary
judgment standards, contrary to Connexus’s argument that the circuit court here
made findings of fact to which we should defer.

8
Because we conclude that Connexus was not required to provide a notice of a right to
cure prior to taking possession of the vehicle, we need not address the parties’ arguments about
whether the notice that Connexus did send to Treuthardt, before it agreed to defer two missed
payments, met pertinent statutory requirements.

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¶41 The second assumption involves a video recorded by an agent of
Connexus during the taking of the vehicle. This video was presented to the circuit
court by the parties in connection with this issue. The video is not included in the
record on appeal. Instead, Treuthardt relies exclusively on a transcript of the
video. We assume that the contents of the video supports the circuit court’s
summary judgment decision in favor of Connexus. See State v. McAttee, 2001 WI
App 262, ¶5 n.1, 248 Wis. 2d 865, 637 N.W.2d 774 (“It is the appellant’s
responsibility to ensure completion of the appellate record and ‘when an appellate
record is incomplete in connection with an issue raised by the appellant, we must
assume that the missing material supports the [circuit] court’s ruling.’” (quoted
source omitted)). More specifically, we assume that there is nothing in the video,
which is not evident in the transcript, that would allow this court to conclude that
there is a genuine issue of material fact on the breach-of-peace issue that would
favor Treuthardt.

A. Legal Standards

¶42 Under the terms of Connexus’s loan to Treuthardt, the vehicle was
collateral that secured the debt. Pursuant to WIS. STAT. § 425.206 (“Nonjudicial
enforcement limited”), Connexus had only a limited right to take possession of the
vehicle following Treuthardt’s default. Pertinent here, § 425.206 prohibited
Connexus, “[i]n taking possession of [the] collateral,” from “[c]omit[ting] a breach
of the peace.” See § 425.206(2)(intro.) and (a).

¶43 This court explained what constitutes a breach of the peace in this
context in Hollibush v. Ford Motor Credit Co., 179 Wis. 2d 799, 804-12, 508
N.W.2d 449 (Ct. App. 1993) (applying identical language in then-existing version
of § 425.206(2) and (2)(a)). This court noted that the Wisconsin Consumer Act

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does not define “breach of the peace.” Id. at 804. Accordingly, we turned to
persuasive authority discussing the concept as it is addressed in the Uniform
Commercial Code. Id. at 804-12. We noted that courts from other jurisdictions
and secondary authorities had explained that “a self-help repossession [of
collateral] in the face of a debtor’s contemporaneous objection constitutes a breach
of the peace.” Id. at 811 (citing First and Farmers Bank of Somerset v.
Henderson, 763 S.W.2d 137, 140 (Ky. Ct. App. 1988)).9 “The underlying theory
of [this approach] is that a verbal objection to a repossession is the precursor to
violence, and that it should not be necessary for a debtor to resort to violence to
provide the breach of the peace necessary to defeat a self-help repossession.” See
id. Based on this reasoning, we concluded in Hollibush that there was a breach of
the peace when the debtor or the debtor’s fiancé told the creditor’s agent “that he
was not to repossess the vehicle,” but the agent “nonetheless did so.” Id. at
803-04, 812.

¶44 The court in Hollibush favorably quoted persuasive authority for the
proposition that the debtor must raise an “unequivocal oral protest.” Id. at 810
(“‘When a creditor repossesses in disregard of the debtor’s unequivocal oral
protest, the repossession may be found to be in breach of the peace.’” (quoting
Dixon v. Ford Motor Credit Co., 391 N.E.2d 493, 497 (Ill. App. 1979) (in turn
citing a treatise on the Uniform Commercial Code))). While Hollibush quoted

9
We note that in Hollibush, and in parts of the record in this case, “repossession” is used
interchangeably with what we generally refer to as “taking possession of collateral,” which is the
phrase used in pertinent consumer act statutes. See Hollibush v. Ford Motor Credit Co., 179
Wis. 2d 799, 804-12, 508 N.W.2d 449 (Ct. App. 1993); WIS. STAT. §§ 425.105(1), 425.206(2).
Accordingly, we sometimes quote and ourselves employ variations on the term “repossess,” even
though Connexus, as the lender in the vehicle purchase, had not previously possessed the vehicle
before its agents took it during the disputed incident in this case.

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No. 2025AP482

other formulations of the standard that did not include the specific term
“unequivocal,” we agree with Connexus that Hollibush establishes a rule that a
debtor’s verbal objection must be “unequivocal” in the sense that the debtor must
convey an unambiguous request or demand that a creditor’s agent not take or stop
taking the collateral. As we explain below, Treuthardt’s arguments to the contrary
are not consistent with Hollibush.

B. Application

¶45 Treuthardt relies on three statements that she made to Connexus’s
agents during their encounter after they arrived on the scene, before they took the
vehicle. These three statements are reflected in the transcript referred to above.
The following are the statements that she contends each constitutes the required
“contemporaneous objection” referred to in Hollibush.

 After one agent asked Treuthardt if she “[w]ould … like to get [her]
stuff out” of the vehicle before the agents towed it away, Treuthardt
responded, “Well yeah. I don’t even want you taking my car.”

 After one agent told Treuthardt that the agent would provide her with
contact information for her lienholder, Treuthardt said, “Well, I don’t
agree with this at all.”

 After an agent asked Treuthardt if there was anything else the agent
could help her with before the agents left with the vehicle, she
responded, “Not without taking my car.”

Treuthardt does not direct us to evidence in the record tending to show what tone
or volume was used in delivering these statements. Nor does she identify
evidence, in addition to making these statements, that she took other, nonverbal
actions—for example, gestures or the use of written material—that could have led
to a breach of the peace.

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No. 2025AP482

¶46 To be sure, each statement reflected Treuthardt’s disappointment
that the agents planned to take the vehicle away and her preference that they not
do that. That is, she unmistakably indicated that she did not affirmatively consent
to the taking away of the vehicle, although some of her statements appeared to
signal her resignation to the fact that the agents were going to take it. See
Hollibush, 179 Wis. 2d at 806 (“consent of the debtor is not necessary for a
peaceful self-help repossession”). For example, the last statement appears to have
meant, “There is nothing you could do to help me except not take my car.” But
none of her statements amounts to an unambiguous request or demand that the
agents not take or stop taking the vehicle, which was necessary to implicate the
reasoning in Hollibush. See id. at 808-09 (discussing a debtor’s “unsuccessful[]
demands that a repossessing creditor desist” or a debtor’s “‘disregarded … request
to desist … efforts at repossession’” (quoted source omitted)). Stated in terms of
the reasoning in Hollibush, she did not make a statement that could reasonably be
seen as a potential “precursor” to acts of “violence,” either by Treuthardt or the
agents. See id. at 808.

¶47 Treuthardt points out that the provisions of the Wisconsin Consumer
Act are to be “liberally construed and applied to promote [the Act’s] underlying
purposes.” See WIS. STAT. § 421.102(1). One weakness in this argument is that
Treuthardt does not specify which purpose of the Act that she claims is implicated
here. In any case, emphasizing the liberal construction rule here could not help
Treuthardt, because we must apply Hollibush as binding precedent that provides
the applicable construction of “breach of the peace” in WIS. STAT.
§ 425.206(2)(a).

¶48 Treuthardt argues that it is not reasonable to use a “one size fits all
standard” for determining when a debtor has made a sufficient objection or protest

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No. 2025AP482

under Hollibush, and instead “[c]ustomers must be allowed to use their own
personalities to convey a verbal protest.” The concept appears to be that the
breach-of-peace standard can be triggered even if a debtor uses relatively softer
tones or relatively politer language to convey an unambiguous request or demand.
This is a fair point as far as it goes: we see no reason that a debtor’s statement to a
repossession agent, “You may not take my vehicle,” counts not only when
conveyed in a loud, aggressive tone but also when conveyed in a quiet, respectful
tone. See Hollibush, 179 Wis. 2d at 812 (analyzing statement of debtor or
debtor’s fiancé without reference to evidence about how the statement might have
been delivered). But this point does not help Treuthardt here. We do not rest our
conclusion on the fact that there is no evidence in the appellate record that
Treuthardt’s volume or tone in speaking, or any of her nonverbal conduct, created
or contributed to a triable issue of material fact beyond what we read in the
transcript. We consider the content of her statements as shown in the transcript
under the breach of the peace logic as characterized in Hollibush. For the reasons
we have explained, this language, however it was delivered, did not constitute an
unambiguous request or demand that the agents not take the vehicle or stop taking
it. One can easily imagine a long list of statements that debtors could make that
would qualify as unambiguous requests or demands that the agents not take or stop
taking the vehicle, but Treuthardt did not make any such a statement here.

III. Prohibited Debt Collection Practices

¶49 Treuthardt argues that the circuit court erred by concluding that
Connexus did not violate WIS. STAT. § 427.104(1) through multiple forms of
conduct that creditors are prohibited from engaging in when attempting to collect
on alleged debts arising from certain categories of transactions. She specifically
alleges that Connexus violated: § 427.104(1)(h), which as pertinent here prohibits

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No. 2025AP482

“[e]ngag[ing] in … conduct which can reasonably be expected to threaten or
harass the customer”; and § 427.104(1)(j) which in pertinent part prohibits
“[c]laim[ing] … a right with knowledge or reason to know that the right does not
exist.” She contends that the following alleged conduct by Connexus violated one
or both of these prohibitions: charging Treuthardt $125 for taking possession of
the collateral several months before the vehicle was taken, and sending a notice
regarding Treuthardt’s right to redeem the vehicle to an incorrect address.10

¶50 The circuit court denied summary judgment in Treuthardt’s favor
regarding each of her WIS. STAT. § 427.104(1) claims. The court granted
summary judgment in favor of Connexus, dismissing the § 427.104(1) claims
based on the right to redeem being sent to an incorrect address. The court
dismissed the § 427.104(1) claims based on the $125 charge through a directed
verdict that it granted after the close of the plaintiff’s case. See supra note 6.

A. Charge for Taking Possession of the Collateral

¶51 Treuthardt’s argument regarding the $125 charge is based on the
following undisputed evidence from the summary judgment materials. Connexus
provided Treuthardt with a quarterly account statement that contained an entry for
$125 as a charge, dated December 2019, related to the taking possession of her
vehicle. This meant that the charge was included on Treuthardt’s account

10
Treuthardt also contends that it was a violation of WIS. STAT. § 427.104(1)(h) and (j)
for Connexus to take possession of the vehicle over her verbal objection. But so far as Treuthardt
argues the point, Connexus took possession of the vehicle in violation of § 427.104(1) only to the
extent that this constituted a “breach of the peace.” For example, she does not argue that the
taking of the vehicle here could be reasonably expected to harass her, even if it does not fit the
breach-peace-standards outline in Hollibush. Accordingly, we need not address the breach-of-
peace topic again, given our conclusion that Connexus did not breach the peace.

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No. 2025AP482

statement several months before Connexus took possession of the vehicle in
February 2020. Based on this evidence, Treuthardt argues that there is no genuine
or material dispute of fact that the decision by Connexus to include the charge on
Treuthardt’s account statement when it did violated WIS. STAT. § 427.104(1)(h),
because it could be reasonably expected to harass her. She also contends that, by
including this charge when it did, Connexus claimed a right that it knew or had
reason to know did not exist, in violation of § 427.104(1)(j). We address these
arguments in turn, resolving both against Treuthardt based on the correct standards
of review. This is based in significant part on undisputed evidence that Connexus
had a statutory and contractual right to impose the charge when it did because it
was incurred by Connexus in searching for the vehicle as part of the attempt to
take it, and because Connexus had the right to apply payments under the contract
toward the charge even before redemption of the vehicle.

Whether the Charge for Taking Possession of the Vehicle was Reasonably
Expected to Harass Treuthardt

¶52 Neither party identifies any standards of review that are specific to
determining what “can reasonably be expected to … harass the customer” under
WIS. STAT. § 427.104(1)(h). In our own limited research, we have not been able
to identify precedent addressing what constitutes “can reasonably be expected to
… harass the customer” under § 427.104(1)(h). But this court has addressed the
phrase “can reasonably be expected to … harass the customer” in the context of a
substantially similar provision, § 427.104(1)(g). See Associates Fin. Servs. Co. of
Wisconsin v. Hornik, 114 Wis. 2d 163, 166-70, 336 N.W.2d 395 (Ct. App. 1983).
Subpart (1)(g) addresses what can be reasonably expected to harass by
“communicat[ing]” with customers or their relatives, while subpart (1)(h)
addresses what can be reasonably expected to harass through “other conduct”

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No. 2025AP482

besides communication. Although neither party cites to Associates as a guide to
apply § 427.104(1)(h), for reasons we now explain we conclude that the reasoning
regarding the standard of review in Associates applies with equal force to the latter
provision.

¶53 In Associates, we explained that a customer claim under WIS. STAT.
§ 427.104 (and the surrounding provisions of WIS. STAT. ch. 427) “is in [the]
nature [of] a tort action.” Associates, 114 Wis. 2d at 167. The duty of care
element for this type of tort is established in § 427.104. See Associates, 114
Wis. 2d at 167. Applying the logic of Associates here, “[t]he focus” of subpart
(1)(h) is “whether the collector’s [conduct] can reasonably be expected to threaten
or harass.” See id. at 168. This constitutes an objective element. See id.
However, this “standard’s objective character does not create a question of law,”
because “[t]he application of a duty of care to a given set of facts will generally
remain within the province of the trier of fact.” See id. Thus, in Associates, we
upheld the circuit court’s findings that the creditor conduct in that case (involving
repeated collection phone calls) was not reasonably expected to harass because the
court’s findings to that effect were “not clearly erroneous.” See id. at 169-70.

¶54 Given these standards, Treuthardt fails to persuade us that she is
entitled to judgment on this issue as a matter of law. See WIS. STAT. § 802.08(2).
She rests her argument on the premise that, under her installment contract with
Connexus and pertinent provisions of the consumer act, Connexus had no basis to
charge Treuthardt for anything related to taking possession of her vehicle before
Connexus in fact took the vehicle. Even if we accept this premise, in light of the
discussion in Associates, it would remain the province of the jury to decide if this
conduct was reasonably expected to harass. Further, as we explain in addressing
Treuthardt’s WIS. STAT. § 427.104(1)(j) claim based on the repossession charge,

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No. 2025AP482

we disagree that Connexus had no basis to make the charge under the installment
contract and pertinent statutes.

Whether the Charge for Taking Possession of the Vehicle Claimed a
Right that Did Not Exist

¶55 We turn to Treuthardt’s argument that Connexus claimed a right to
bill her for the repossession charge at a time when it knew or had reason to know
that it did not yet have that right. As we explain below, setting aside the timing of
when Connexus included the $125 charge in Treuthardt’s account statement, it did
have a right as a matter of contract, consistent with pertinent statutes, to charge
Treuthardt for that amount. Then, when we take into account the timing of billing,
we conclude that there is a genuine issue of fact regarding whether this was a
premature claim of a right in violation of WIS. STAT. § 427.104(1)(j).

¶56 Under WIS. STAT. § 422.413(2g), “In any consumer credit
transaction in which the collateral is a motor vehicle[,] … a writing evidencing the
transaction may provide for the creditor’s recovery of” the “[e]xpenses of taking
and holding the collateral if paid to persons not related to the creditor.” See
§ 422.413(2g)(intro.) and (a).

¶57 The installment contract here states in part that one of Connexus’s
“remedies upon default” is that Connexus “may take (repossess) the vehicle from
you after we give you any notice the law requires.” The installment contract
further adds:

e. How you can get the vehicle back if we take it. If we
repossess the vehicle, you may pay to get it back (redeem).
We will tell you how much to pay to redeem. You may
have to pay expenses we pay as a direct result of taking and
holding the vehicle as the law permits. Your right to
redeem ends when we sell the vehicle.

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No. 2025AP482

f. We will sell the vehicle if you do not get it back. If
you do not redeem, we will sell the vehicle. We will send
you a written notice of sale before selling the vehicle. We
will apply the money from the sale, less allowed expenses,
to the amount you owe. Allowed expenses are travel and
transportation expenses of the creditor in taking the vehicle
and expenses paid to persons not related to the creditor as a
direct result of taking, holding, cleaning, restoring, and
repairing the vehicle, as the law permits.

The contract also gives Connexus the right to “apply” required payments by
Treuthardt to any “amount [that Treuthardt] owe[s] under [the] contract in any
order [Connexus] choose[s],” including the principal, interest, and “other”
amounts that she would owe under the contract. That is, under this provision, had
Treuthardt paid an amount toward the balance shown on her account statement
from December 2019 that was less than the total owed, Connexus could count that
as a payment to reduce specific parts of the total—including principal, interest, or
contractually authorized charges—in whatever order Connexus chose.

¶58 With this as background regarding Connexus’s statutory and
contractual authority to collect expenses for taking possession of the vehicle, we
turn to the evidence regarding the $125 charge at issue. Connexus employee
Bonham testified to the following in a deposition. This charge was included in the
account history for Treuthardt’s loan to reflect that the agent that Connexus used
to find and take collateral from its debtors charged Connexus a fee in connection
with the potential repossession of Treuthardt’s vehicle following her default. This
was based on Connexus’s decision to switch from one method of finding and
taking collateral to a second, more expensive method. Specifically, Connexus
directed its agent in Treuthardt’s case to switch from a “general” or “regular”
process to a “direct skip” process. Bonham explained that if the agents were not
able to find the collateral that Connexus was trying to take possession of within
approximately 30 to 90 days, Connexus would advise the agents to move to “direct

26
No. 2025AP482

skip,” which involves more thorough investigative techniques to try to locate the
collateral.

¶59 Reasonably inferable from Bonham’s deposition testimony was that
the agent Connexus used here had attempted to take possession of Treuthardt’s
vehicle, but was unable to locate it using the more “general” process, and that
Connexus decided to pay the agent to switch to the “direct skip” process to find
the vehicle in order to eventually take it. If credited, this testimony shows that
Connexus incurred the $125 charge as a direct result of the search for the vehicle
well in advance of taking it.

¶60 Treuthardt does not contest that the $125 was incurred by Connexus
as payment for the search for and then taking possession of the vehicle. Instead,
she contends that Connexus exceeded its rights under the contract based on the
timing of when it added the charge as a bill to her. That is, Treuthardt asserts that
Connexus had no contractual authority to add the charge to her account before the
vehicle was sold. This argument fails because it relies on the paragraph of the
contract addressing the sale of the vehicle after a debtor fails to redeem, without
taking into account other provisions of the contract. As shown above, the contract
provision addressing Treuthardt’s right of redemption clearly contemplates that
Connexus could require her to pay expenses directly resulting from the taking of
the vehicle as part of the redemption, before the sale of the vehicle. The contract
also gives Connexus the right to apply payments by Treuthardt to any amount
owed under the contract. Treuthardt does not explain why the $125 charge to
cover the higher search cost would not qualify as such an amount owed merely
because the taking possession of the vehicle was not yet completed. At a
minimum, she fails to show that there is no genuine issue of material fact that

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No. 2025AP482

Connexus’s inclusion of $125 charge constituted a claim of a right that it knew or
had reason to know it did not have.

B. Redemption Notice Mailed to Incorrect Address

¶61 There is no dispute that Connexus tried to send Treuthardt a notice
regarding her right to redeem the vehicle after Connexus took possession of the
vehicle, but there is also no dispute that it sent this notice to an incorrect address.
Specifically, the notice was sent to an address that was Treuthardt’s residence only
during the period 2000 to 2002. In doing so, Treuthardt argues, Connexus failed
to comply with what she contends was its contractual duty to inform her of her
right to redeem. As noted above, the installment contract states in part that
Connexus, after taking possession of the vehicle, “will tell you how much to pay
to redeem.” She further argues that this contractual failing violates WIS. STAT.
§ 427.104(1)(h), because failing to send the notice to the proper address could
reasonably be expected to harass Treuthardt. For these reasons, Treuthardt
contends, the circuit court erred by failing to grant summary judgment in her favor
on this claim and instead granting summary judgment in Connexus’s favor and
dismissing the claim.

¶62 We reject Treuthardt’s argument on this issue for at least the reason
that she does not explain how, under any reasonable inferences that can be drawn
in her favor from the summary judgment materials, Connexus’s failure to deliver
the right to redeem notice to a proper address could have been reasonably
expected to harass her. Among the notable omissions from her argument is the
lack of identification of any evidence that could establish that someone in
Treuthardt’s position would become aware of Connexus’s failure to send the
notice to a correct address, as well as the lack of evidence that, even if she did

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No. 2025AP482

become aware, this was a deliberate effort to improperly influence her in
connection with debt collection.

IV. Summary Judgment Regarding Affirmative Defenses

¶63 Treuthardt asserts that the circuit court erred by failing to “dismiss”
Connexus’s affirmative defenses on her motion for summary judgment. We
question whether Treuthardt identifies a form of relief that the circuit court had
authority to grant, because she does not support the proposition that an affirmative
defense is a standalone pleading that may be “granted” or “dismissed” on
summary judgment. See WIS. STAT. § 802.08(1) (“A party may … move for
summary judgment on any claim, counterclaim, cross claim, or 3rd-party claim
which is asserted by or against the party.” (emphasis added)). Further, she does
not make clear how she could benefit from a favorable ruling on this issue, given
our conclusions regarding the circuit court’s dismissal of her claims on summary
judgment.

¶64 But even setting to the side these substantial problems, we reject her
argument because it is unsupported. Treuthardt apparently means to argue that the
circuit court was required to grant her motion to “dismiss” the affirmative defenses
because, she asserts, Connexus did not develop an argument in the circuit court
specifically opposing that motion. This argument fails for at least the reason that
Treuthardt does not direct us to legal authority that could support an argument that
it was reversible error for the circuit court to make its summary judgment rulings
even if Connexus failed to specifically oppose Treuthardt’s motion to dismiss the
affirmative defenses. She relies entirely on Charolais Breeding Ranches, Ltd. v.
FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979), but the
pertinent proposition in that case is that, on appeal, this court may take as

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No. 2025AP482

conceded the failure of a respondent to attempt to refute an argument made in an
appellant’s brief-in-chief. Treuthardt does not attempt to show, using the
appropriate methodology, that she is entitled to any particular summary judgment
ruling regarding Connexus’s affirmative defenses.

CONCLUSION

¶65 For all of these reasons, we affirm the order of the circuit court.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

30