June 16, 2026 – The Wisconsin Consumer Act (WCA) didn’t apply to a residential lease dispute, the Wisconsin Supreme Court held, reversing the court of appeals in Koble Investments v. Marquardt, 2026 WI 19 (June 5, 2026).
Six members joined the majority opinion written by Justice Rebecca Grassl Bradley, who concluded “Wis. Stat. § 427.104 does not govern a residential lease under which rent is payable on a monthly basis because it is not an ‘agreement to defer payment.’”
In an attempt to reduce further the effects of the court of appeals’ holding that “destabilized landlord-tenant law,” Justice Rebecca Grassl Bradley, joined by Justice Annette Kingsland Ziegler, concurred.
The narrow majority holding “leaves unanswered the question that impelled this court to grant review in this case: Whether the [WCA] applies to residential leases at all. It doesn’t, and the court should say so,” Justice Bradley’s concurrence advised.
Justice Susan M. Crawford, who didn’t join the majority opinion, agreed in reversing the court of appeals decision. She found the case infirm due to lack of standing.
“The appeal was filed solely by [Elicia] Marquardt’s former attorney, James Miller, without her knowledge or consent, apparently seeking a decision that would require Koble Investments (Koble) to pay his attorney’s fees,” Justice Crawford wrote.
“Miller lacked standing to appeal the issues presented here.”
Eviction Moratorium
Koble sent Marquardt a notice terminating her lease for failing to pay rent after Gov. Tony Evers, on March 12, 2020, set a 60-day moratorium on eviction notices during the COVID-19 pandemic.
Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.
Marquardt responded with a counterclaim, alleging that the WCA “prohibits attempts to collect ‘an alleged debt arising from a consumer credit transaction or other consumer transaction … where there is an agreement to defer payment.’”
She also alleged the lease was unenforceable because the lease allowed termination “for a crime committed in relation to the rental property” but lacked the statutory domestic abuse protection notice.
“Koble moved for dismissal of its eviction claim and admitted serving Marquardt the eviction notice during the prohibited period.”
The counterclaim survived, but Marquardt quit talking to her attorney.
Miller then moved to withdraw from representation, intervene in the case, and recover statutory attorney fees.
The Marathon County Circuit Court denied the counterclaim and limited Miller “to intervene solely to appeal ‘the issues underlying the request for statutory’ attorney fees and costs.”
The court of appeals reversed the circuit court, allowing recovery.
WCA Versus Residential Leases
Resolving the dispute, the majority said, was simple. The WCA didn’t apply because a “residential lease under which rent is payable on a monthly basis is not ‘an agreement to defer payment.’’’
A landlord in Wisconsin “is entitled to recover rent as it accrues, not before. … Logically, an obligation that does not yet exist cannot be deferred.”
Contrary to what Miller argued, the majority said, an annual lease with monthly payments “is not an installment contract.”
Lease regulations and past understanding support this conclusion, the majority described.
“The Wisconsin Administrative Code treats residential leases differently than consumer debt.” Lease default cannot trigger acceleration and “the landlord must make ‘reasonable efforts’ to rent the premises to someone else.”
Long-standing understandings and applications of a law preserve a law’s “true meaning and application.”
“Interpretive departures from the unbroken historical understanding of the statute ‘would be a surprise to the legal profession, as well as the business community’ and are therefore disfavored,” a 1973 Wisconsin case states.
“No court has applied the WCA to residential leases in the [54] years after its enactment despite residential leases being frequently litigated,” the majority said.
“Neither the agency entrusted with enforcing the WCA nor the agency charged with regulating residential leasing consider the WCA a channel for regulating residential leases.”
What Damages?
Regulations “render void and unenforceable any lease” permitting termination for a crime related to the property when the lease also doesn’t include a statutory domestic abuse protection notice.
Koble did not dispute the lease didn’t have that notice, but it said the eviction did not arise from a crime committed against Marquardt.
The majority found the claim failed because Marquardt “has not established that Koble’s alleged violation … caused her any pecuniary loss.”
Miller argued that the loss came from payments made under a void and unenforceable lease, the majority summarized.
“Neither Attorney Miller nor the court of appeals explained how Marquardt suffered any loss from paying rent in exchange for a place to live.”
Justice Bradley Concurrence: Lease, not Ownership
The WCA requires a customer for a consumer transaction, Justice Bradley began her concurrence.
A “customer” under the WCA is someone “who seeks or acquires real … property.”
A residential lease doesn’t give a tenant the real estate, only a right to occupy, Justice Bradley explained. The landlord still remains responsible for statutory maintenance obligations, property taxes, and insurance.
“Nowhere in its text does the WCA mention residential leases, landlords, or tenants,” Justice Bradley wrote. “This is not surprising, considering the legislature devoted an entire chapter of the statutory corpus to the landlord tenant relationship.”
“The same reasoning underlying the court’s conclusion that § 427.104 does not cover residential leases applies with equal force to the entire WCA,” Justice Bradley concluded her concurrence.
Justice Crawford: Where’s the Tenant?
“The court decides this landlord-tenant dispute despite a fundamental defect in the appeal,” Justice Crawford began her concurrence. “[T]here is no tenant.”
After Koble admitted its error and voluntarily dismissed the eviction, “Marquardt did not appear for any subsequent court proceedings and, according to Miller, ceased communicating with him.”
“Miller filed a notice of appeal solely on his own behalf,” Justice Crawford explained. “Marquardt herself did not appeal.”
But Marquardt was the aggrieved party, not Miller, Justice Crawford said.
“I could find no case in any jurisdiction in which a court permitted an attorney to appeal a former client’s substantive claims, in the hopes of ultimately obtaining a legal basis for the award of attorney’s fees.”
“Under Wisconsin law,” Justice Crawford explained, “‘statutory attorney’s fees belong to the client and not the attorney.’”
The fee agreement determines how those fees are distributed, Justice Crawford explained. Marquardt signed a contingent fee agreement with Miller. “Because he failed to recover any money for Marquardt, Marquardt owed him nothing.”
In filing the appeal, Miller “failed to obtain [Marquardt’s] knowledge or consent to do so,” as Justice Crawford’s questions in oral arguments elicited.
“Thus, in his zeal to win an order requiring Koble to pay his fees, Miller completely disregarded his client’s wishes,” Justice Crawford concluded, a violation of professional responsibilities to keep the client informed and follow the client’s objectives.
“Miller’s lack of standing, coupled with Marquardt’s absence, means that this court decides the rights of a party not before us.”
“The court of appeals’ decision adjudicating the validity of Marquardt’s counterclaims in her absence and without her consent should be reversed,” Justice Crawford concluded.