USA Foreclosure Wiki

BNP Paribas v. Olsen's Mill, Inc. (2011)

4 min read

BNP Paribas v. Olsen’s Mill, Inc. (2011)

Citation: 2011 WI 61, 335 Wis. 2d 427, 799 N.W.2d 792 · Court: Wisconsin Supreme Court, No. 2009AP1007 · Decided: July 8, 2011 · Opinions: lead opinion by Ann Walsh Bradley, J.; concurrence by Roggensack, J., joined by Ziegler and Gableman, JJ.; Prosser, J., did not participate.

Source note (2026-10-18):

Opinion text retrieved 2026-10-17 from the Caselaw Access Project’s static copy of the Wisconsin Reports, 2d series (static.case.law, volume 335), an unofficial host. The official annotation to Wis. Stat. § 128.15 (2023-24 statutes, published 2026-10-01, docs.legis.wisconsin.gov) summarizes the decision.

Facts

Olsen’s Mill, a large Wisconsin grain elevator, owed its secured lender BNP Paribas about USD 58 million. In 2009 the debtor and the lender agreed to an assignment for the benefit of creditors under Wis. Stat. ch. 128, and the circuit court appointed an interim receiver. The appointing order and agreed auction terms allowed sales free and clear of liens (liens attaching to proceeds) subject to the secured lenders’ consent and court approval. At the auction a buyer affiliated with the lender submitted the winning bid. The circuit court instead approved a revised offer from a buyer affiliated with former management, negotiated after the auction, over the lender’s express objection; it found the lender had not consented. The court of appeals affirmed.

Holding

Reversed and remanded. The circuit court erred by ordering a sale of the lender’s collateral free and clear of its perfected security interest without its consent, and by approving an offer that circumvented the order of distribution in Wis. Stat. § 128.17(1). Because the value of the lender’s security was unclear, the case went back to the circuit court to decide the remedy.

Reasoning

  • Under ch. 128, unsecured creditors have no property interest in the estate’s assets and cannot withhold consent to a sale; secured creditors are treated differently (lead opinion ¶ 43).
  • Under Article 9, a security interest continues in collateral after disposition unless the secured party authorized the disposition free of it (Wis. Stat. § 409.315(1)(a)) (¶ 46).
  • Wisconsin Brick & Block Corp. v. Vogel, 54 Wis. 2d 321 (1972), allows a ch. 128 court to sell free of liens “if the lienholder participates,” but participation is necessary, not sufficient, to show consent, and does not override an express objection (¶¶ 55–57).
  • A court’s equitable powers under Wis. Stat. § 128.01 do not permit it to disregard express statutory rights (¶ 82).
  • The concurrence reached the same result, stressing that the sale proceeded without either consent or a statutory valuation of the security under Wis. Stat. § 128.25 and paid the lender nothing on its unsecured claim while others were paid.

Practical impact

  • Buyers at Wisconsin receivership and ABC sales: a “free and clear” order is exposed to challenge if a secured creditor whose collateral is sold did not consent and its security was not valued and paid under ch. 128; written lender consent (or a § 128.25 valuation) is the protective document.
  • Secured creditors: an express objection on the record preserves the right to block a free-and-clear sale of collateral.
  • Receivers: court approval does not cure a sale that bypasses § 128.17(1)‘s distribution order.

Good-law status

The full opinion holding was independently checked on 2026-10-17 against the official court body. Prior CAP retrieval and its unofficial-host disclosure above are preserved. The current official statutory annotation remains relevant evidence of citation, but is not a complete subsequent-history/citator check.

Rechecked 2026-10-18 (CourtListener citation search; results retained in schema/verification/wisconsin-evidence-2026-10-18/): the Wisconsin Supreme Court in Casanova v. Polsky, 2023 WI 19 (read in full from wicourts.gov), relies on BNP Paribas for the rule that a secured creditor “cannot have his security taken away from him without his consent” and that a receiver distributes under § 128.17; the published Dizard v. Torro LLC, 2025 WI App 31 (read in full from wicourts.gov), follows its description of ch. 128. No negative treatment located. Not a commercial citator check.

Applies in →

wisconsin · receivership-sales · assignment-for-the-benefit-of-creditors · businesses-and-going-concerns

Legal information, not legal advice. Verify current primary sources before acting.

Graph View

Backlinks