First National Bank of Omaha v. Kimberly K. Krauss

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.
December 18, 2025
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. 2024AP2345 Cir. Ct. No. 2023SC726

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

FIRST NATIONAL BANK OF OMAHA,

PLAINTIFF-RESPONDENT,

V.

KIMBERLY K. KRAUSS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Jefferson County:
BENNETT J. BRANTMEIER, Judge. Affirmed.

¶1 GRAHAM, J.1 Kimberly Krauss appeals a money judgment in
favor of First National Bank of Omaha (the Bank). I affirm.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2024AP2345

¶2 Krauss has a credit card account with the Bank. Starting in
November 2022, Krauss failed to make payments as they became due. It is
undisputed that Krauss did not make the payments that were due on November 9
and on December 9. It is further undisputed that on December 14, the Bank sent a
notice informing Krauss that she was in default. The notice stated that, to cure the
default, Krauss was required to pay the past due amount by December 29, 2022.
Krauss did not pay the past due amount or make any further payments on the
account.

¶3 The Bank filed a small claims action seeking a money judgment
against Krauss. In Krauss’s answer, she alleged that the Bank failed to provide a
proper notice before bringing the collection action, as required by the Wisconsin
Consumer Act (WCA). Krauss also filed a counterclaim, alleging that she was
entitled to remedies under the WCA.

¶4 The Bank moved for summary judgment. Along with its motion and
brief, the Bank submitted an affidavit with the credit card statements and the
December 14, 2022 notice. The motion for summary judgment argued that Krauss
had defaulted on the account; that the Bank provided her with a notice of default
and the right to cure, as required by WIS. STAT. § 425.104; and that Krauss had not
cured the default. Therefore, the Bank argued, it was entitled to judgment as a
matter of law.

¶5 In her brief opposing summary judgment, Krauss argued that she
was not actually in default at the time the Bank sent the December 14, 2022
notice. Krauss’s argument turns on the language of WIS. STAT. § 425.103(2),
which defines “default” for purposes of different consumer credit transactions.
And more specifically, Krauss’s argument turns on whether her credit card

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No. 2024AP2345

account is an “open-end plan,” as that term is used in § 425.103(2). If the account
is not an “open-end plan” governed by § 425.103(2)(b) and is instead a
“transaction other than an open-end plan” governed by § 425.103(2)(a), then
Krauss was not yet in default on December 14, when the Bank sent the notice.
And if Krauss was not in default at that time, then the notice did not satisfy the
WCA’s prerequisites for commencing suit. See Indianhead Motors v. Brooks,
2006 WI App 266, ¶¶13-14, 297 Wis. 2d 821, 726 Wis. 2d 352 (providing a notice
that satisfies the timing and content requirements of the WCA is a prerequisite to
legal action).

¶6 In an oral ruling, the circuit court granted summary judgment in the
Bank’s favor. The court determined that the credit card account was an “open-end
plan” governed by WIS. STAT. § 425.103(2)(b), and that Krauss was in default
under that statute at the time the Bank sent its notice. The court entered a money
judgment in the Bank’s favor. Krauss appeals.2

¶7 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.” WIS. STAT. § 802.08(2). For

2
The parties’ briefs do not comply with WIS. STAT. RULE 809.19(8)(bm), which
addresses the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that, when
paginating briefs, parties should use “Arabic numerals with sequential numbering starting at ‘1’
on the cover”). This rule was amended to its current form in 2021, see S. CT. ORDER 20-07, 2021
WI 37, 397 Wis. 2d xiii (eff. July 1, 2021), and the reason for the amendment is that briefs are
now electronically filed in PDF format, and are electronically stamped with page numbers when
accepted for efiling. The pagination requirements ensure that the numbers on each page of a brief
“will match … the page header applied by the eFiling system, avoiding the confusion of having
two different page numbers” on every page of a brief. Supreme Court Note, 2021, RULE 809.19.

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purposes of this appeal, it is undisputed that the credit card account is governed by
the WCA. It is also undisputed that Krauss is a “customer” and the Bank is a
“merchant” as those terms are defined in the WCA. And it is undisputed that
Krauss failed to make the payments that were due on November 9 and
December 9, 2022, and that the Bank sent a notice of right to cure on
December 14, shortly after the second missed payment.

¶8 As mentioned, the crux of the parties’ dispute is whether the credit
card account is considered an “open-end plan” or a “transaction other than one
pursuant to an open-end plan,” as those terms are used in WIS. STAT. § 425.103(2).
This presents a matter of statutory interpretation, which is a question of law.
Nowell v. City of Wausau, 2013 WI 88, ¶19, 351 Wis. 2d 1, 838 N.W.2d 852.

¶9 WISCONSIN STAT. § 425.103(2) sets forth rules on how to determine
the date on which a consumer credit transaction is in “default.” This
determination matters because, as noted, the WCA requires a creditor to send a
notice that satisfies the timing requirements of § 425.103(2) and related statutes as
a prerequisite to commencing a collection action. Indianhead Motors, 297
Wis. 2d 821, ¶¶13-14; see also WIS. STAT. § 425.105(1). Section 425.103(2)
provides, in relevant part:

(2) “Default”, with respect to a consumer credit
transaction, means without justification under any law:

(a) With respect to a transaction other than one
pursuant to an open-end plan and except as provided in [a
paragraph that addresses certain installment and payday
loans]; if the interval between scheduled payments is
2 months or less, to have outstanding an amount exceeding
one full payment which has remained unpaid for more than
10 days after the scheduled or deferred due dates, or the
failure to pay the first payment or the last payment, within
40 days of its scheduled or deferred due date …;

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No. 2024AP2345

….

(b) With respect to an open-end plan, failure to pay
when due on 2 occasions within any 12-month period[.]

(Emphasis added.)

¶10 Applying these definitions here, if the credit card account is an
“open-end plan” as the Bank contends, then Krauss was undisputedly in default as
of December 10, 2022. That is because she did not make the payments that were
due on November 9 and December 9; therefore, as of December 10, she had
“fail[ed] to pay when due on 2 occasions within [a] 12-month period.” See WIS.
STAT. § 425.103(2)(b). However, if the account is not an “open-end plan” after
all, then Krauss may not have been in default until December 20, when there was
“an amount exceeding one full payment which has remained unpaid for more than
10 days.” See § 425.103(2)(a).

¶11 Krauss agrees that her credit card account falls within the WCA’s
definition of an “open-end credit plan.” See WIS. STAT. § 421.301(27) (emphasis
added);3 see also § 421.301(15) (defining the term “credit card” to mean a credit

3
More specifically, the WCA defines “[o]pen-end credit plan” as

consumer credit extended on an account pursuant to a plan under
which:

1. The creditor may permit the customer to make
purchases … from time to time, directly from the creditor or
indirectly by use of a credit card, check or other device, as the
plan may provide;

2. The customer has the privilege of paying the balance
in full or in installments;

3. A finance charge may be computed by the creditor
from time to time on an outstanding unpaid balance; and

(continued)

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No. 2024AP2345

device extended “pursuant to an open-end credit plan”).4 Accordingly, if the term
“open-end plan” as used in WIS. STAT. § 425.103(2) means the same things as
“open-end credit plan” as defined by the WCA, then § 425.103(2)(b) governs the
method for calculating the date of Krauss’s default.

¶12 Krauss argues that her credit card account is not governed by WIS.
STAT. § 425.103(2)(b) because, she asserts, the terms “open-end credit plan” and
“open-end plan” mean different things. That is, although Krauss acknowledges
that her credit card account is an “open-end credit plan,” she contends that it is not
an “open-end plan” for purposes of determining the date of default under
§ 425.103(2)(a) and (b).

¶13 In furtherance of this argument, Krauss points out that, unlike the
term “open-end credit plan,” “open-end plan” is not specifically defined anywhere
in the WCA. In the absence of a WCA definition, Krauss argues, one must look to
other chapters of the Wisconsin Statutes for the definition.

¶14 Here, Krauss identifies a statutory definition that is found in WIS.
STAT. ch 766, which addresses marital property and the property rights of married
persons. More specifically, WIS. STAT. §§ 766.55 and 766.555 set forth rules
about when obligations that were incurred by one spouse can be satisfied from

4. The creditor has treated the transaction as open-end
consumer credit for purposes of any disclosures required under
the federal consumer credit protection act.

WIS. STAT. § 421.301(27).
4
In full, “[c]redit card” is defined as “any card, plate, merchandise certificate, letter of
credit, coupon book or other like credit device existing for the purpose of obtaining money,
property, labor or services pursuant to an open-end credit plan.” WIS. STAT. § 421.301(15).

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No. 2024AP2345

martial property. And § 766.555(1)(a) and (b) provide a definition of “open-end
plan” for purposes of “this section.” Section 766.555(1)(a) sets forth a definition
that resembles the WCA’s definition of “open-end credit plan.”5 And
§ 766.555(1)(b) further specifies that, “[i]n this section,” the term “‘[o]pen-end
plan’ includes only those open-end plans entered into by a person whose spouse is
not a party to the account.” The remaining provisions in § 766.555 set forth rules
about when obligations incurred under an “open-end plan” (that is, a plan “entered
into by a person whose spouse is not a party to the account”) can be satisfied from
marital property. See, e.g., § 766.555(2)(b), (c), (3)(b), (c).

¶15 Krauss argues that WIS. STAT. § 766.555’s definition of “open-end
plan” must be imported into the WCA. Once it is, Krauss contends, her credit card
account cannot be considered an “open-end plan” for purposes of determining her
date of default because there is no evidence that she has a “spouse [who] is not a
party to the account.” See § 766.555(1)(b). Therefore, Krauss argues, WIS. STAT.
§ 425.103(2)(a), which sets forth the method for calculating the default date of a
consumer credit “transaction other than one pursuant to an open-end plan,”
governs the method for determining when Krauss was in default.

¶16 If Krauss’s argument seems difficult to follow, it is because the
argument does not hold together well. To be sure, WIS. STAT. § 425.103(2) uses a
term, “open-end plan,” that is not identical to the WCA-defined term “open-end
credit plan.” And, when the legislature chooses to use different words as part of

5
More specifically, WIS. STAT. § 766.555(1)(a) provides that, “[i]n this section,”
“‘[o]pen-end plan’ means credit extended on an account pursuant to a plan under which the
creditor may permit a spouse to make purchases … from time to time, directly from the creditor
or indirectly by use of a credit card, check or other device, as the plan may provide.”

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No. 2024AP2345

the same statutory scheme, we generally presume that the legislature intended the
words to be given different meanings. Pawlowski v. American Fam. Mut. Ins.
Co., 2009 WI 105, ¶22, 322 Wis. 2d 21, 777 N.W.2d 67. Even so, I am not
persuaded that the legislature intended § 425.103(2)’s references to “open-end
plan[s]” to mean something other than the “open-end credit plan[s]” that are
defined by WIS. STAT. § 421.301(27). I reach this conclusion for at least the
following reasons.

¶17 First, although the drafter did not use the word “credit” when
referring to “open-end plan[s]” in WIS. STAT. § 425.103(2)(a) and (b), the word
“credit” is part of the introductory language of § 425.103(2). More specifically,
§ 425.103(2) addresses all kinds of “consumer credit transaction[s],” and
§ 425.103(2)(b) sets forth the rule for those “consumer credit transaction[s]” that
are “open-end plan[s].” Perhaps a more careful drafter would have used the full
term “open-end credit plan” in § 425.103(2)(b) and, in so doing, would have left
no room for argument. However, given that the introductory language expressly
refers to “credit transaction[s],” the drafter may have considered it redundant to
add the word “credit” into the text of § 425.103(2)(b). And, given that the WCA
does not provide an alternative definition of “open-end plan,” the drafter may have
determined that there would be no risk of confusion. In any event, whether the
omission of the word “credit” was intentional or inadvertent, there is no indication
in the WCA that § 425.103(2)’s references to “open-end plan[s]” were meant to
refer to anything other than “open-end credit plan[s].”

¶18 Second, I do not agree that the definition of “open-end plan” from
the marital property chapter of the Wisconsin Statutes can be imported into WIS.
STAT. § 425.103(2). My conclusion is based on the text of WIS. STAT.
§ 766.555(1) and the interpretive principles that statutory language should be

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interpreted reasonably and consistent with its purpose. See State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶¶46, 48, 271 Wis. 2d 633, 681 N.W.2d
110 (statutory language should be “in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of surrounding or
closely related statutes; []reasonably, to avoid absurd or unreasonably results;” and
consistent with its ascertainable purpose).

¶19 As for text, WIS. STAT. § 766.555(1) unambiguously provides that its
definition applies “[i]n this section”—that is, § 766.555. This means, it would
seem, that the legislature intended that the definition be limited to the subject
addressed in § 766.555—namely, a set of rules for determining whether
obligations that a spouse incurs under an “open-end plan” can be satisfied from
marital property. Indeed, in the context of a statute addressing the obligations of
spouses, it makes sense that the applicable definition would turn on whether an
account holder’s spouse is party to the account—if both spouses are party to an
account, there would seem to be no need for the application of nuanced rules on
that subject.

¶20 There is nothing in the text of WIS. STAT. § 766.555 that suggests
that its definition of “open-end plan” was meant to apply more broadly to other
statutory chapters that address other subjects and have other purposes. And
indeed, WIS. STAT. § 425.103(2) serves a very different purpose—to provide clear
rules about when a customer has defaulted on a consumer credit transaction. In
the context of § 425.103(2), a distinction based on marital status and whether a
person’s spouse is party to the account would undermine this evident purpose, and
would instead promote arbitrary differences in when a default occurs. That is,
there is no discernible reason that a customer like Krauss would be in default after
her second missed payment if she was married and her spouse was not party to the

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credit card account, but a customer who was not married (or who was married and
had a joint account with her spouse) would not be in default until ten days later.

¶21 For all of these reasons, I conclude that Krauss’s credit card account
was an “open-end plan” for purposes of WIS. STAT. § 425.103(2)(b), and that
Krauss was in default on December 14, 2022, when the Bank sent its notice of
default. Therefore, I conclude, the circuit court properly granted summary
judgment in the Bank’s favor and properly entered a money judgment against
Krauss.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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