January 2, 2013
by Christopher C. Drout, Jr.
Gray & Associates, L.L.P. – USFN Member (Wisconsin)
The Wisconsin Court of Appeals recently affirmed a circuit court’s decision to grant the bank’s motion for summary judgment. PNC Bank, N.A. v. Bierbrauer, 2012 Wisc. App. Lexis 916 (Wis. Ct. App. Nov. 20, 2012). The defendants argued that PNC failed to establish that it was the holder of the note and, therefore, failed to establish a prima facie case for summary judgment. The court of appeals disagreed and affirmed the judgment.
This case involved an action for foreclosure of a first mortgage held by PNC where the defendants failed to make payments. The defendants filed an answer, alleging general denials regarding the default and an affirmative defense that the original loan was with First Franklin.
PNC moved for summary judgment by submitting the affidavit of a document control officer for the servicer. The officer averred that the servicer has possession, control, and responsibility for the accounting and other mortgage loan records relating to the defendants’ loan. Further, the officer stated that the affidavit is made from her personal inspection of the records and her own personal knowledge of how those records are created and kept and maintained. Lastly, the affidavit stated that PNC is the current holder of the note and mortgage.
The defendants did not file a response to the motion for summary judgment; however, they appeared at the hearing and argued that the affidavit did not establish PNC’s right to enforce the note. The circuit court agreed and denied the motion. PNC moved for reconsideration. The circuit court reversed its earlier decision, reasoning that the defendants failed to submit any affidavit or other evidence in opposition to PNC’s summary judgment motion and failed to raise a genuine issue of material fact.
The defendants then moved for reconsideration; however; the circuit court denied their motion, reiterating that PNC made a prima facie case that it was entitled to enforce the note. An appeal was filed, alleging that the affidavit cannot establish PNC as the holder of the note because the affidavit does not establish that the officer had personal knowledge regarding the transfer of the note.
The appellate court affirmed the decision, reasoning PNC made a prima facie case that it was the holder of the note. The affidavit of the servicer’s document control officer was sufficient as it established that the servicer had possession of the accounting and other mortgage loan records and that the affidavit was made from the officer’s personal inspection of said records. The court reasoned the affidavit asserted that PNC was the current holder of the note based upon this personal knowledge of the records. Furthermore, the defendants failed to submit any counter affidavits or contrary evidence in opposition to the motion for summary judgment. The instant case is a positive decision for lenders in Wisconsin and illustrates a trend towards requiring specific pleadings and defenses.
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