The Current Housing Industry/Foreclosure Crisis, the Mortgage Clause, and What It All Means to Insurance Companies

WDC Journal Edition: Summer 2009
By: Mary L. Richards, American Family Mutual Insurance Company and Robert C. Burrell, CPCU, Borgelt, Powell, Peterson & Frauen S.C.

Because of the current subprime mortgage crisis, attorneys can now expect to frequently face claims made by mortgagees under property insurance policies. Insureds whose mortgages are underwater often simply abandon or relinquish their properties. Lenders facing large financial losses thus increasingly pursue property damage recoveries from first party property insurers. Those lenders do so under the mortgage clause of the first party property insurance policy. The potential economic impact of these actions is to shift large financial losses from lenders to insurers. As a result, attorneys who represent insurers may expect a significant increase in claims presented by mortgagees under the mortgage clause of the first-party property insurance policy.

To make matters worse for the Wisconsin insurance bar, relatively little reported case law exists in Wisconsin dealing with the mortgage clause. Given that real property law and foreclosure law vary widely among the states, and given that much of the case law analyzing mortgagee rights and responsibilities is somewhat archaic, authorities from other states do not always provide direct guidance on the issues presented. However since lenders and insurers are now warring with each other to allocate the subprime mortgage losses, courts will be endeavoring to develop a more cohesive body of law on the issues presented. This article is intended to provide a framework for evaluating issues arising from the increasingly frequent mortgagee claims under the first party property insurance policy. The article will address the basic issues arising under the standard mortgage clause and will suggest some investigation and discovery guidance for what to do when the lenders come knocking.

The Mortgage Clause – Its Purpose, Language, and the Effects of the Insured’s Actions on the Mortgagee’s Claim

Before delving into the study of the standard mortgage clause, it is necessary to define basic terminology regarding “mortgagors” and “mortgagees.” A “mortgagor”is: “One who, [has] all or some part of title to property, by written instrument pledges that property for some particular purpose such as security for a debt. That party to a mortgage who gives legal title or a lien to the mortgagee to secure the mortgage loan.”[1] As a practical matter the mortgagor is the insured. A “mortgagee” is “the entity who takes or receives a mortgage.”[2] As a practical matter the mortgagee is the bank or other lending institution.

Generally, the standard mortgage clause[3] is deemed to create a separate independent contract between the mortgagee and the insurer. As a result, a mortgagee is not subject to the insurer’s defenses against the insured that might otherwise bar or invalidate an insurance claim.[4] In other words, the standard mortgage clause safeguards the mortgagee’s security interest against the actions or inactions of the insured and allows the mortgagee to successfully assert an independent claim even if the insured’s claim is denied. The mortgagee’s rights under the standard mortgage clause should be contrasted with the rights of a mere loss payee. A mere loss payee has no separate contract with the insurer, and the loss payee’s rights are subject to the defenses of the insurer against the insured. Even though the mortgage clause provides protection to the mortgagee as against the mortgagor, the mortgage clause does not enlarge or expand perils insured against under the policy.

The specific policy language of the standard mortgage clause may vary from policy to policy, yet most mortgage clauses provide language such the following, from the ISO homeowner’s policy:

If a mortgagee is named in this policy, any loss payable under Coverage A or B [buildings or other structures] will be paid to the mortgagee and you, as interests appear. If more than one mortgagee is named, the order of payment will be the same as the order of precedence of the mortgages. If wedeny your claim, that denial will not apply to a valid claim of the mortgagee, if the mortgagee:

a. notifies us of any change in ownership, occupancy or substantial change in risk of which the mortgagee is aware;

b. pays any premium due under this policy on demand if you have neglected to pay the premium; and

c. submits a signed, sworn statement of loss within 60 days after receiving notice from us of your failure to do so.[5]

Note that the standard language above does not expressly state that the insured’s acts or neglect fail to negate a mortgagee’s claim. Although historically such language was contained in policies, the current “easy read” versions of the standard mortgage clause lack language expressly addressing the impact of the insured’s acts or neglect on the mortgagee’s claim. Nonetheless, courts uniformly construe this condition as an implied part of the clause in concluding that an independent contract exists between the insurer and the mortgagee [6]

Therefore, an insured’s actions or neglect will not bar a mortgagee’s claim. However this is true only so long as the mortgagee: 1) is not involved in the insured’s conduct and 2) complies with its contractual duties.[7]

The Mortgagee’s Three Express Duties.

The standard mortgage clause expressly imposes three affirmative duties upon the mortgagee. They are the duties to:

1. notify the carrier of any change in ownership, occupancy or substantial change in risk of which the mortgagee is aware;

2. pay any premium due if [the insured has] neglected to pay the premium; and

3. submit a signed, sworn statement of loss within 60 days after receiving notice that the insured hasn’t submitted a proof of loss.

Most of the reported case law focuses on the mortgagee’s first express duty – to notify the insurer of any change in ownership, occupancy or substantial change in risk of which the mortgagee is aware. Significant issues exist on exactly what constitutes a “change in ownership, occupancy or substantial change in risk.” The cases show that resolution of these issues is decided on a case-by-case, fact-intensive basis. Cases from across the nation reach inconsistent and varied holdings. Additionally, courts generally require “actual” knowledge by the mortgagee in order to impose a reporting requirement on the mortgagee; mere constructive knowledge (i.e., should have known) is usually insufficient.[8]

Where mortgagees take an active role in dealing with management and/or attempted sale of the property, however, courts appear more likely to hold the mortgagee to a higher standard.[9] While a mortgagee may not have an independent duty to inspect or maintain a property, where the mortgagee has taken on responsibilities to oversee the property, courts are more prone to impose a duty on the mortgagee to notify the insurer of changes in the property. For example, where a mortgagee hires a property maintenance or service company to secure and inspect a property after it has been abandoned, courts are more likely to hold that the mortgagee has assumed a duty and is not entitled to recovery where it has performed its duty in a negligent manner.[10] The more a mortgagee appears to be a “mortgagee in possession” or exerts a higher degree of de facto custody, management or control of the operation or maintenance of the property, the stronger the insurer’s argument that any change in the property requires notice to the insurer by the mortgagee if the mortgagee is to collect policy proceeds for property damage.

Courts further require that any change in the condition of the property must result in increased risk or hazard before coverage for the mortgagee will be precluded. If no increase in the hazard occurs, a mortgagee’s failure to inform the insurer of a change in ownership or occupancy may not void the policy.[11] The courts which have addressed the issue hold that the mere fact of foreclosure fails to constitute an increased risk or hazard.[12] The rationale of these cases seems open to question, however, since statistically, properties in foreclosure have a demonstrably higher probability of harm. Case law may develop further on this issue, as more and more courts address losses occurring on foreclosed properties.

Another related issue is the timeliness of the mortgagee’s advice to the insurer of a notifiable event. Cases addressing this issue merely require the mortgagee to provide notice within “reasonable” amount of time.[13] But what is reasonable? The answer varies according to the facts of each case. Reasonable could be 5 days or it could be 30 or more, depending on the particular circumstances.

Other Mortgagee Contractual Duties

Distressed properties raise many additional unique questions for property insurers. Does a mortgagee have a duty to notify the insurer of vacancy in the property? Does a mortgagee have a duty to maintain heat or utilities once the insured has moved away? Does a mortgagee have a duty to preserve and protect the property or mitigate damages – and if so, who must take the initiative to preserve and protect – mortgagee or insurer? What about inspection and entry onto the property for purposes of claim investigation and adjustment? Can a mortgagee be required to give an examination under oath? These are all questions that depend on the specific policy language at issue, the case law within the jurisdiction, the mortgagee’s relationship to the property at the time of the loss, and the specific facts in dispute.

Property policy language addressing post-loss principles creates further mortgagee duties, beyond the three express mortgagee mortgage clause duties. For example, the typical ISO policy provides that, as part of the mortgagee’s post-loss duties, the mortgagee must provide proof of loss. Moreover, the policy conditions regarding Appraisal, “Suit Against Us,” and “Loss Payment Under Section I” “also apply to the mortgagee.” These duties typically arise if the insured has failed to fulfill its duties after loss, and mortgagees should be compelled to fulfill these claim presentation duties specified in the ISO policy. However, unanswered questions exist on whether the mortgagee must fulfill other duties that are required of the insured, such as the duty to submit to examination under oath. Since the mortgage clause creates a separate contract between the mortgagee and the insurer, the terms of the policy imposing (or failing to impose) post-loss duties on a mortgagee govern the mortgagee’s right to recover under the policy.

In contrast to ISO, the American Family mortgage clause lacks the ISO-limiting conditions; it specifically includes as a condition of Section I (property) coverage a “What You Must do in Case of Loss” provision that contains additional duties applicable to insureds andsignificantly - “any person claiming coverage under this policy.” The American Family “What You Must do in Case of Loss” provision expressly provides that any claimant must give notice as soon as reasonable possible, protect the property, make reasonable repairs, show the insurer the damaged property, and submit to an examination under oath.

In addressing the extent of a mortgagee’s obligations under the policy, questions exist on whether certain policy duties constitute conditions of coverage or whether they constitute duties personal to the insured. If the duty involved constitutes a condition of coverage, the failure to meet the duty voids coverage for both the insured and the mortgagee. If the duty involved is a personal duty of the insured, the insured’s failure to meet it will not void coverage for the mortgagee. For example the ISO Commercial Property policy imposes a duty to notify an insurer of vacancy within 60 days. This provision is found in the Loss Conditions, and thus arguably constitutes a condition of coverage that, if not met, presumably precludes any recovery by both the insured and the mortgagee. In contrast, the Neglect Exclusion of the ISO homeowner’s policy is designated as an exclusion. This leads to a stronger contention by the mortgagee that the duty to preserve and protect the property at and after the time of loss is personal to the insured, not a condition of coverage.

However, insurers (assuming that they don’t have express language that addresses these issues in their policies) may counter such mortgagee arguments by reference to the mortgage note on the property. Most mortgage notes provide the mortgagee with a right to enter and inspect the property. Additionally, where a distressed property is already in foreclosure (and therefore the subject of an active suit already before a judge), the mortgagee should immediately (and can easily) seek emergency judicial approval to enter an abandoned premises and deal with the property. Finally, mortgagees often employ home inspection or home maintenance companies to inspect, board-up, and winterize troubled and/or foreclosure properties to prevent further damage. Thus, the mortgagee is already paying someone to protect the premises, indicating its acceptance of the policy duty to preserve and protect the property.

In order for an insurer to investigate a mortgage clause claim, it is necessary for mortgagees (or their agents vested with authority) to present the claim and show the insurer the damaged property. But what if the mortgagee refuses to enter the property? This becomes a combined business and legal decision for the insurer. On the one hand, why guess at the lender’s claim? A mortgagee’s refusal could form the basis for a possible breach of condition argument if the right policy language is involved. But if anything is stolen or awry with the property, the mortgagee may point to the adjuster as the person who entered. On the other hand, if an insurer chooses not to enter, it will have no way to refute the mortgagee’s wish list. Thus, if an insurer does enter the insured property, it is imperative to create a photographic record of everything concerning the condition of the property.

A mortgagee has a duty to provide a proof of loss pursuant to the mortgage clause. As for a mortgagee’s duty to submit to an examination under oath, there is no case law in Wisconsin on the topic and case law from other jurisdictions is mixed.[14] Some insurance policies, however, do expressly require a mortgagee to submit to such an examination as a condition of the policy.

Foreclosure and the Mortgage Clause

Particularly in the current subprime mortgage crisis, mortgagees frequently present claims at various stages of the foreclosure process. The disposition of claims involving foreclosed properties hinges on the timing of the loss, the claim, and the foreclosure. It is therefore necessary to view the continuum of the foreclosure process in Wisconsin. As a simplified overview, the timeline of the typical Wisconsin statutory foreclosure process is as follows:

The Typical Foreclosure Process Timeline.

1. The insured starts falling behind in payments and/or stops making payments to the mortgagee.

2. After various “late notices” from the mortgagee to the insured demanding payment and after approximately 3 months of insured-default, the mortgagee will refer the matter to foreclosure counsel.

3. The mortgagee files a foreclosure lawsuit in court against the insured.

4. Usually, a default judgment will be granted.

5. The redemption period must run. (The redemption period will vary according to the nature of the property, whether a deficiency is sought, etc.)

6. After the redemption period expires, notice of a sheriff’s sale is issued.

7. The sheriff’s sale is held.

8. The application for confirmation of sheriff’s sale is filed with the court.

9. The court grants confirmation of the sheriff’s sale and title now vests with the sheriff’s sale purchaser (usually the mortgagee for the amount of its security interest in the property). NOTE: until confirmation of the sheriff’s sale, the mortgagor-insured has a technical right to redeem the property.[15]

The nature of the mortgage business and the steps necessary in the mortgage foreclosure process raise unique problems of investigation. Information gathering, attempting to piece together what was going on with a property, and identifying what knowledge a mortgagee had at any given time are all made more difficult in the typical claim where a mortgage foreclosure is involved. Mortgagees often have different departments doing different activities at different stages. Some of these functions will be in-house and some will be outsourced. The mortgagee’s organizational structure determines what actions persons within the mortgagee structure may have undertaken, and what they should have done with the property at any given point. Therefore, differing departmental responsibilities with mortgagee organizations directly impact an insurer’s investigation. Also, mortgagee seasonal and departmental workloads impact how quickly the mortgagee addresses a distressed property.

Moreover, confirmation of a sheriff’s sale in Wisconsin is not guaranteed. Anecdotally, some judges in Milwaukee County are refusing to confirm bids that are less than 70% of estimated fair market value. In other words, some judges are redefining what fair market value is. As a consequence, if the sales are not confirmed, the properties languish longer, meaning that carriers are “on the risk” longer. Worse still, some judges insist on ordering mediations and attempting workouts prior to judgment, which only prolongs the problems and the timeline. From the standpoint of the community, the longer the foreclosure process is delayed, the longer that foreclosed-upon properties continue to exist as non-productive assets within the community.

The necessary investigation and fact gathering involved in handling mortgagee claims is somewhat unique. Investigation usually must proceed beyond communications with the insured/mortgagor because the insured/mortgagor is often no longer around and, even more often, is uncooperative. Communications the insurer’s own agents are usually limited. In the mortgage claim context, unique sources of information may include the following: property inspection service companies (these can be employees of banks or independent contractors, but they are still agents), real estate agents and brokers for either the mortgagor or mortgagee, building inspectors, and others. The information and documents to obtain may include (this list is not exhaustive) the following: ordering a certified policy, establishing a timeline of relevant dates, obtaining all ownership documents, obtaining all foreclosure documents and court records, obtaining all records (photos, logs, correspondence, memos, etc.) from any property service or management retained by the mortgagee, examining all change of risk notifications, obtaining copies of any communications between the mortgagee and mortgagor, and obtaining any information and documents related to risk, occupancy, management, control, or ownership.

The Effect of Foreclosure In Relation to the Date of Occurrence of the Loss

A key coverage issue concerning claims for properties in foreclosure is whether the loss occurred before or after foreclosure proceedings. Until the mortgagor-insured’s interest in the property is extinguished, both the mortgagee and the mortgagor-insured hold insurable interests in the property. Therefore, until the mortgagor’s interest has been extinguished, policy proceeds are still payable to both the mortgagee and the mortgagor. Thus, on insured losses occurring post-foreclosure, but pre-confirmation, settlement checks should be payable to both the mortgagee and the insured-mortgagor. If either the mortgagee or mortgagor dispute this method, a prudent insurer should consider bringing a declaratory judgment action and paying the money into court.

Where a loss occurs before a foreclosure action is commenced, the mortgagee has a choice of two remedies: (1) collect on the insurance up to the amount of the debt (thereby extinguishing its mortgage interest) or (2) foreclose and collect only for any deficiency (which is usually waived).[16]

But where a mortgagee forecloses after the loss occurs and then makes a full credit bid that the court confirms, the mortgagee will not be entitled to collect insurance proceeds. A “full credit” or “full debt” bid is where a mortgage company bids the amount of its security interest in the property (the debt). Assuming that any deficiency has been waived (and it usually is – see the foreclosure motion papers), once the sheriff’s sale has been confirmed, title transfers to the mortgagee. Therefore, the mortgagee’s entire debt claim has been satisfied or extinguished since it is now the owner of the property. Under these circumstances, the mortgagee should collect nothing under the insurance policy.[17] A majority of states follow this rule, sometimes known as the post-loss full credit bid rule.[18]

Is the post-loss full credit bid rule harsh? No. In fact, the rule is both practical and sensible when one considers the following rationale:

Because a mortgagee is entitled to one satisfaction of his debt and no more, the bidding in of the debt to purchase the mortgaged property, thus cutting off other lower bidders, has always constituted a satisfaction of the debt. . . . The point is that the mortgagee has voluntarily converted the debt into the property and has done so by taking the property in satisfaction of the debt.

. . . .

To allow the mortgagee, after effective cutting off or discouraging lower bidders, to take the property-and then establish that it was worth less than the bid-encourages fraud, creates uncertainty as to the mortgagor’s rights, and most unfairly deprives the sale of whatever leaven comes from other bidders. Mortgagees have the obvious opportunity to bid only so much of the debt as equals the value of the property, and if someone else wants to bid the same or more, so much the better for every other party concerned with the property.[19]

It is difficult to muster sympathy for the mortgagee in the foreclosure scenario under the full credit bid rule since mortgagees are relatively sophisticated parties as to the real estate and financial markets. At foreclosure confirmation of the bid, the mortgagee receives what it bargained for: to secure the debt - the pledged property. And even if the mortgagee were to disavow any knowledge of a loss prior to confirmation, all a mortgagee would need to do is simply make a pre-confirmation inspection of the building to make itself aware of the property’s condition.[20]

Moreover, under the full credit bid rule, it is important for insurers to focus on the fact that having received the benefit of its bargain (the property itself), the mortgagee has already been satisfied. If a mortgagee would be allowed to receive both the property and insurance proceeds, it would be unjustly enriched. Thus, an insurer in the full credit bid scenario should appropriately reject, as inapplicable, any relief sought under Section 631.07(4) of the Wisconsin Statutes, which provides:

Effect of Lack of Insurable Interest or Consent. No insurance policy is invalid merely because the policy holder lacks insurable interest or because consent has not been given, but a court with appropriate jurisdiction may order the proceeds to be paid to someone other than the person to whom the policy is designated to be payable, who is equitable entitled thereto, or may create a constructive trust in the proceeds or a part thereof, subject to terms and condition of the policy other than those relating to insurable interest or consent.[21]

Other Items to Note

A few final mortgagee claim issues merit special mention.

1. Coverages that form the basis for a mortgagee mortgage clause claim. Assuming that a mortgagee is entitled to payment under the mortgage clause, the question is as follows: What coverage applies and how much is available? Mortgagee claims are limited to property interest (real estate). Absent policy language to the contrary, a mortagee has no claim for any additional living expenses, contents, or personal property. Further, the mortgagee may recover the lesser of the mortgage balance on the date of loss or the policy limit.[22] The mortgagee’s balance would normally include interest and costs that have accrued up to the date of loss, but not thereafter. [23]

2. The Unnamed Mortgagee. What happens when the mortgage is sold or assigned after the policy is issued so that the mortgagee making the claim is different from the mortgagee identified on the policy? Does the insurer owe policy proceeds to a successor mortgagee even though that successor mortgagee is not named in the policy? Wisconsin Statutes § 631.07(4), can form a basis for recovery by the unnamed mortgagee.

3. Suit Limitation Clause. - The suit limitation clause in the insurance contract (one year for most homeowner policies and two years for most commercial policies) and Wisconsin Statutes § 631.83(1)(a) likely also apply to the mortgagee’s suit.[24]

4. Subrogation against the Insured/Mortgagor. Insurers have the contractual right to subrogate against mortgagor-insureds to whom a claim has been denied when insurers have made payment to a mortgagee under the mortgage clause.[25] While this right may be nice in theory, in the context of a homeowner’s policy there would seem to be very little chance of an actual recovery.


Until the economic climate improves, insurers will continue to be faced with an increasing number of mortgage clause claims. As a result, the insurance industry may be ultimately responsible for the financial fallout from the subprime crisis. The ever-growing volume of mortgage clause claims begs the question, what risks are carriers really underwriting? Good policy language, thorough investigation of the loss itself and of the information actually possessed by the mortgagee, and correct legal analysis of the parties’ rights and responsibilities under the first-party property insurance policy are all critical to handling, defending, and properly evaluating mortgagee claims.

[1]Black’s Law Dictionary 912 (5th ed. 1979).

[2] Id.

[3] This article will not address the other type of mortgage clause known as the “open mortgage” or “loss payable” mortgage clause because it is the standard mortgage clause that has gained widespread use within the insurance industry since its introduction in 1943. See Stephen A. Cozen, Insuring Real Property § 52.01 (1997).

[4] Polar Mfg. Co. v. Integrity Mut. Ins. Co., 7 Wis. 2d 443, 96 N.W.2d 822 (1959); 46A C.J.S. Insurance § 1939 (Mortgagor and Mortgagee – Standard or Union Mortgage Clause and Loss-Payable Clause); John Steinmetz, Stephen Goldman & Daniel F. Sullivan, The Standard Mortgage Clause in Property Insurance Policies, 33 Tort and Ins. L.J. 81 (1997).

[5] ISO HO 00 03 10 00 ed.

[6] Steinmetz et al., supra note 4, at 84-85.

[7] See Kane v. Employer’s Ins. of Wausau, 142 Wis. 2d 702, 419 N.W.2d 324 (Ct. App. 1987); Ensz v. Brown Ins. Agency, Inc., 66 Wis. 2d 193, 223 N.W.2d 903 (1974); Polar Mfg., 7 Wis. 2d at 449-50 (insured’s fraud does not relieve insurer of liability to mortgagee unless mortgagee was involved in the fraud); State Bank of Chilton et al. v. Citizens’ Mut. Fire Ins. Co. of Janesville, 214 Wis. 6, 252 N.W. 164 (1934); See also, Prudential Ins. Co. of American v. Paris Mut. Fire Ins. Co., 213 Wis. 63, 250 N.W. 851 (1933); Fifth Third Bank v. Indiana Ins. Co., 771 N.E.2d 1218 (Ind. Ct. App. 2002); Home Savings of America, F.S.B. v. Continental Ins. Co., 104 Cal. Rptr. 2d 790 (Ct. App. 2001); Nationwide Mut. Ins. Co. v. Hunt, 488 S.E.2d 339 (S.C. 1997); Jones v. Wesbanco Bank Parkersburg, 460 S.E.2d 627 (W. Va. 1995); Nationwide Ins. Co. v. Clark, No. 3:05CV615DPJ-JCS, 2006 WL 3694597 (Miss. Ct.App. Dec. 13, 2006).

[8] See New York Underwriters Ins. Co. v. Central Union Bank, 65 F.2d 738, 739 (4th Cir. 1933); see also Westchester Fire Ins. Co. v. Harder, 77 F.2d 93 (3d Cir. 1935).

[9] See 2 Steven W. Bender, Jeffry R Dwyer & Michael T. Madison, Law of Real Estate Financing § 12.17 (2004); see also Gordon v. Holt, 412 N.Y.S.2d 534, 537 (App. Div. 1979) (permitting no recovery to mortgagee where mortgagee had duty to maintain heat just as insured would have been required and where mortgagee knew the insured abandoned the property, hired a management company to secure the premises vacated by the insured, but failed to shut off water and secure premises); See also Perry State Bank v. Farmers Alliance, 953 S.W.2d 155, 159 (Mo. Ct. App. 1997) (permitting no recovery for mortgagee who took de facto custody of property by arranging for electric company to maintain electricity and by showing property to prospective buyers due to mortgagee’s failure to notify insurer of lengthy vacancy).

[10] See Daniel Gerber & Nikia O’Neal, Mortgagee Clause Claims in the Subprime Fallout, 75 Defense Counsel Journal 254, 260 (July 2008) (and cases cited therein).

[11] See, e.g., U.S. Bank N.A. v Tennessee Farmers Mut. Ins. Co., 277 S.W.3d 381, 389 (Tenn. 2009) (and authorities cited therein); Federal Nat’l Mortgage Ass’n v. Great American Ins. Co., 300 N.E.2d 117 (Ind. Ct. App. 1973).

[12] Id.

[13] See, e.g., Kitchen v. Lexington Ins. Co., 301 F.2d 301 (5th Cir. 1962).

[14] See Mortgage Affiliates Corp. v. Commercial Union Ins. Co., 276 N.Y.S.2d 404, 406 (App. Div. 1967); Decker v. Gov’t Emp. Ins. Co., 511 F. Supp 563 (D. Ark. 1981) (suggesting EUO permissible); but see United States Fid. & Guar Co. v. Annunzite, 501 N.Y.S.2d 790 (N.Y. 1986).

[15] See Wis. Stat. § 846.13 (property redemption by insured can occur any time prior to Sheriff’s sale); State Bank v. Sechen, 2005 WI App 253, 288 Wis.2d 168, 707 N.W.2d 576 (interpreting “sale” to mean “confirmation”); see also, Wis. Stat. § 846.17.

[16] Cozen, supra note 3, § 52.05(1); Steinmetz et al., supra note 4, at 102; Restatement (3d) Property, Mortgages § 4.8 (1997 & June 2005 Supp.).

[17] Cozen, supra note 3, § 52.05(2).

[18] Restatement, supra note 18, § 4.8 (see reporter’s note regarding comment a and cases cited therein). For cases where the mortgagee does not recover, see Murphy v. Aetna 468 N.Y.S.2d 265, 267 (App. Div. 1983) (holding that to allow the mortgagee to collect after Sheriff’s sale amounts to unjust enrichment); Nationwide Mut. Fire Ins. Co. v. Wilborn, 279 So.2d 460, 463 (Ala. 1973) (holding that mortagee can still collect for any deficiency); Whitestone Sav. & Loan Ass’n v. Allstate Ins. Co., 270 N.E.2d 694, 696-697 (N.Y. 1971); Palmer v. Mitchell Cty. Fed’l Sav. & Loan Ass’n, 377 S.E.2d 4, 6 (Ga. Ct. App. 1988); American Fire & Indem. Co., Ins v. Weeks, 693 So.2d. 1386, 1388 (Ala. Civ. App. 1997); Builders Affiliates, Inc. v. N. River Ins. Co., 459 N.Y.S.2d 41, 43 (App. Div. 1983). But for cases where the mortgagee still recovers see Fed. Nat’l Mortgage Ass’n v. Ohio Cas. Ins. Co., 208 N.W.2d 573 (Mich. Ct. App. 1973) (holding that despite confirmation of debt satisfaction via sheriff’s sale, “mortgagee” just a shorthand method of referring to the party whose interest is protected); Great-West Life Assur. Co. v. General Accident Fire & Life Assur. Corp, 452 N.E.2d 550 (Ill Ct. App. 1983). See generally 495 Corp. v. N.J. Ins. Underwriting Ass’n, 430 A.2d 203 (N.J. 1991); Annotation, Right of Mortgagee, Who Acquires Title to Mortgaged Premises in Satisfaction of Mortgage, to Recover, Under Fire Insurance Policy, Covering Him as a “Mortgagee,” for Loss or Injury to Property Thereafter Damaged or Destroyed by Fire, 19 ALR 4th(1983 & Cumm. Supp.).

[19] Whitestone, 270 N.E.2d at 696-697.

[20] See Restatement, supra note 18, § 4.8, comment a, and reporter’s note (with authorities cited therein).

[21] See also Martin v. Tower Ins. Co., 119 Wis. 2d 48, 349 N.W.2d 90 (Ct. App. 1984); Disrud v. Arnold, 167 Wis. 2d 177, 482 N.W.2d 114 (Ct. App. 1992); Cary Mfg. Co. v. Acme Brass & Metal Works, 215 Wis. 585, 589, 254 NW. 513, 514 (1934).

[22] Steinmetz et al., supra note 4, at 104; 1 Arnold Anderson, Wisconsin Insurance Law § 6.88 (5th ed., 2004).

[23] See Cary Mfg., 215 Wis. at 589, 254 N.W. at 514.

[24] See also Cozen, supra note 3, § 52.03(1)(h) (discussing mortgagee bound by policy suit limitation provision and authority).

[25] Cozen, supra note 3, § 52.04.