Bank of Am. Na. v. Neis

349 Wis.2d 461

835 N.W.2d 527

2013 WI App 89

BANK OF AMERICA NA p/k/a Countrywide Home Loan Servicing LP p/k/a BAC Home Loans Servicing LP, Plaintiff–Respondent,

v. Jeffrey S. NEIS, Defendant–Appellant,Jane Doe Neis and M & I Marshall & Ilsley Bank, Defendants.

No. 2012AP1994.

Court of Appeals of Wisconsin.

Submitted on Briefs March 19, 2013.

Opinion Filed June 20, 2013.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Reed J. Peterson of Reed Peterson & Associates, LLC, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David P. Muth, John R. Remington, and Brandon R. Gutschow of Quarles & Brady LLP, Milwaukee.

Before HIGGINBOTHAM, BLANCHARD and KLOPPENBURG, JJ.

BLANCHARD, J.

[349 Wis.2d 464]¶ 1 Jeffrey Neis appeals a circuit court judgment granting foreclosure to Bank of America on Neis's residential mortgage and note. ¹ The parties dispute whether several documents that Bank of America submitted in support of its motion for summary judgment are admissible under Wis. Stat. § 908.03(6) (2011–12),² the hearsay exception for records of regularly conducted activity. The documents include the mortgage and note, a document showing Neis's payment history, a notice of intent to accelerate payments, and an “account information statement” summarizing the status of Neis's account.

¶ 2 Applying the standards in Palisades Collection LLC v. Kalal, 2010 WI App 38, 324 Wis.2d 180, 781 N.W.2d 503, we conclude that the payment history, notice of intent to accelerate, and account information statement are admissible under Wis. Stat. § 908.03(6), but not the mortgage and note. We also conclude, however, that the mortgage and note are not hearsay. Because Neis makes no additional developed argument directed at the admissibility of the mortgage and note, we further conclude that they are admissible. Finally,we reject other arguments that Neis makes. Accordingly, we affirm the circuit court's judgment.

BACKGROUND

¶ 3 In the foreclosure complaint, Bank of America alleged that Neis defaulted on a residential mortgage and note, and that he owed a principal sum of $405,799.32, plus interest.³ The Bank attached a copy of a note executed between Neis and M & I Marshall & Ilsley Bank (“M & I”), obligating Neis to repay M & I $163,068 in principal plus interest.

¶ 4 Neis denied most of the complaint's allegations. In addition, he affirmatively alleged that Bank of America did not own or hold the note referenced in the complaint and did not hold a valid mortgage on the subject property.

¶ 5 Bank of America moved for summary judgment. In support of its motion, Bank of America submitted two affidavits, one of Bank of America employee Cindy Morris, and one of Bank of America attorney Steven Zablocki, both with attached documents. We need not detail the Morris affidavit because, as explained below, we do not consider it. It is enough to note that the affidavit attached copies of the payment history,notice of intent to accelerate, and account information statement. The Zablocki affidavit attached the following documents:

• A certified copy of a mortgage between Neis and M & I, referencing a note executed between Neis and M & I for $417,000, as opposed to the $163,068 note attached to the complaint.⁴

• A certified copy of an assignment of the mortgage, filed with the register of deeds, appearing to show that the mortgage, and previously the note, were both assigned to BAC Home Loans from Mortgage Electronic Registrations Systems, Inc. (“MERS”), as nominee for M & I.

¶ 6 Neis objected to the admissibility of the documents attached to Bank of America's affidavits, and argued that Bank of America's submissions failed to make a prima facie showing for summary judgment. Neis argued, among other things, that the documents that Bank of America submitted included hearsay, and that Morris's averments were insufficient to show that the documents attached to her affidavit were admissible under Wis. Stat. § 908.03(6), the hearsay exception for records of regularly conducted activity.⁵

[349 Wis.2d 467]¶ 7 The circuit court allowed Bank of America to file an additional affidavit supplementing its summary judgment materials. This affidavit was of Bank of America employee Shalini Doss–Parker. The Doss–Parker affidavit contained a number of averments regarding Doss–Parker's knowledge of Bank of America's record-keeping practices. In addition, Doss–Parker's affidavit attached the following documents, most of which had been attached to the Morris affidavit as well:

• A copy of the mortgage.

• A copy of the $417,000 note, which included a copy of an undated “allonge” ⁶ with two undated endorsements,one by M & I payable to Countrywide Bank, FSB, and one by Countrywide Bank, FSB, in blank.⁷

• A copy of the payment history, purporting to show Neis's payments on his mortgage and note.

• A copy of the notice of intent to accelerate, which informed Neis that he was in default.

• A copy of the account information statement, purporting to show that Neis owed an unpaid principal balance of $405.799.32 and a total of $444,934.69.

¶ 8 The circuit court set a schedule for supplemental briefing, and Neis deposed Doss–Parker. Bank of America argued in its supplemental briefing that the mortgage and note were not hearsay and were admissible. Bank of America also argued that Doss–Parker's affidavit and deposition testimony established that the payment history, notice of intent to accelerate, and account information statement were admissible under the Wis. Stat. § 908.03(6) hearsay exception.

¶ 9 Although Neis failed to file a supplemental brief, the circuit court allowed Neis to submit a transcript of Doss–Parker's deposition and rely on it for his arguments at a hearing. Neis argued that Doss–Parker's deposition testimony showed that she lacked the required “personal knowledge” to make the documents attached to her affidavit admissible under Wis. Stat. § 908.03(6). Specifically, Neis argued that her deposition testimony showed that she was not present when the documents attached to her affidavit were created and that she had no knowledge of, or responsibility for, the processes by which the documents were created.

¶ 10 The circuit court concluded, without providing reasoning, that Bank of America'sevidence was admissible under Wis. Stat. § 908.03(6). Based on this evidentiary ruling, the circuit court concluded that Bank of America had shown that it was entitled to enforce the mortgage and note. The court further concluded that there was no genuine dispute as to Neis's default. Accordingly, the court granted summary judgment to Bank of America and entered a judgment of foreclosure in Bank of America's favor against Neis. As indicated above, Neis appeals.

DISCUSSION

¶ 11 Before proceeding to our analysis, we briefly explain why we do not consider the Morris affidavit in this appeal. It appears based on the proceedings in the circuit court that the court and Bank of America treated the Doss–Parker affidavit as a substitute or replacement for the Morris affidavit. In addition, Bank of America makes no argument specific to the Morris affidavit on appeal. We therefore conclude that Bank of America concedes that the Morris affidavit adds nothing to its case for summary judgment at this juncture in the proceedings.⁸

[349 Wis.2d 470]¶ 12 As indicated above, the primary dispute the parties present on appeal is whether the documents attached to the Doss–Parker affidavit are admissible under the Wis. Stat. § 908.03(6) hearsay exception. We thus begin with this issue and conclude that the payment history, notice of intent to accelerate, and account information statement, but not the mortgage and note, are admissible under § 908.03(6). We also conclude, however, that the mortgage and note are not hearsay. Because Neis makes no additional, developed argument directed at the admissibility of the mortgage and note, we further conclude that they are admissible. Finally, we reject other arguments that Neis makes.

A. Admissibility of Documents Under Wis. Stat. § 908.03(6)

¶ 13 Neis argues that Doss–Parker's affidavit and deposition testimony show that she lacks personal knowledge to lay the foundation necessary to make the documents attached to her affidavit admissible under Wis. Stat. § 908.03(6). According to Neis, Doss–Parker's affidavit does no more than merely “parrot” the foundational requirements under § 908.03(6), and her deposition shows that she lacks the requisite personal knowledge. Bank of America contends that the circuit court correctly applied § 908.03(6).

¶ 14 Our analysis of this issue will be in four parts. We first address our standard of review, which the parties dispute, and conclude that it is de novo under the Palisades decision, given the circumstances here. Second, we summarize additional applicable standardsfrom Palisades. Third, we apply those standards to Doss–Parker's affidavit to conclude that, through this affidavit, Bank of America made a prima facie showing that the payment history, notice of intent to accelerate, and account information statement, but not the mortgage and note, are admissible under Wis. Stat. § 908.03(6). Finally on this issue, we conclude that Neis fails to demonstrate that Doss–Parker's deposition testimony defeats Bank of America's prima facie showing as to the payment history, notice of intent to accelerate, and account information statement.

1. Standard of Review

¶ 15 In Palisades, we observed that, although it is well established that we review summary judgment de novo, there may sometimes be a different standard of review when we review circuit court evidentiary rulings in the summary judgment context. Palisades, 324 Wis.2d 180, ¶ 13, 781 N.W.2d 503. We elaborated with the following observations:

Although it is well established that we employ the summary judgment methodology de novo, there may be a different standard of review for decisions on whether an...