U.S. Bank Nat'l Ass'n v. Van Goethem

394 Wis.2d 188

949 N.W.2d 886 (Table)

2020 WI App 60

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-BC3, Plaintiff-Respondent,

v.Jeffrey B. VAN GOETHEM and Sherilyn Van Goethem, Defendants-Appellants,Barbara R. Hamara, Stephen G. Hamara, Bayfield Financial, LLC, Capital One Bank (USA) N.A., Midland Funding LLC, and Portfolio Recovery Associates LLC, Defendants.

Appeal No. 2019AP1375

Court of Appeals of Wisconsin.

DATED AND FILED August 18, 2020

PER CURIAM.

¶1 Jeffrey and Sherilyn Van Goethem¹ appeal a foreclosure judgment granted on U.S. Bank National Association's (U.S. Bank) summary judgment motion. The Van Goethems argue that, for a number of reasons, the circuit court erred by granting U.S. Bank a judgment in the amount of $289,437.75. The Van Goethems also argue the court erred by including in its judgment an order correcting a scrivener's error in the mortgaged premises’ legal description.

¶2 We reject the Van Goethems’ arguments regarding the circuit court's grant of the foreclosure judgment in the amount of $289,437.75, with one exception. Specifically, we agree with the Van Goethems that the court erred by including in the judgment an award of $3357.50 for a "prior servicer fee." As to the court's correction of the scrivener's error in the mortgaged premises’ legal description, we conclude the court's action was authorized by WIS. STAT. § 847.07 (2017-18).² We therefore affirm the foreclosure judgment in part, reverse in part, and remand for the circuit court to enter judgment consistent with this opinion.

BACKGROUND

¶3 In 2006, Jeffrey entered into a note promising to pay FMF Capital LLC the principal sum of $99,000, plus interest, in exchange for a loan.³ The note was secured by a mortgage on Jeffrey and Sherilyn's homestead property located at 9623 County Road D in Hazelhurst, Wisconsin (the Property).⁴ In April 2006, the mortgage was recorded in Oneida County.

¶4 The Van Goethems’ first mortgage payment was due on June 1, 2006. Subsequent payments were due on the first day of each month thereafter for a period of thirty years. Late charges accrued on the fifteenth day of each month, and the Van Goethems’ failure to pay "each monthly payment" constituted a default.

¶5 The mortgage required the Van Goethems to "pay all taxes, assessments, charges, fines, and impositions attributable to the Property." The mortgage further provided that if the Van Goethems failed to make these payments, the lender could "exercise its rights" to directly make the payments and then demand repayment from the Van Goethems.

¶6 Similarly, the mortgage required the Van Goethems to purchase insurance on the Property and provided that if they failed to do so, the lender could obtain insurance at the Van Goethems’ expense. In addition, the mortgage provided that the lender could charge the Van Goethems:

fees for services performed in connection with [the Van Goethems’] default, for the purpose of protecting Lender's interest in the Property and rights under this Security Instrument, including, but not limited to, attorneys’ fees, property inspection and valuation fees. In regard to any other fees, the absence of express authority in this Security Instrument to charge a specific fee to [the Van Goethems] shall not be construed as a prohibition on the charging of such fee.

¶7 The mortgage also stated that the "Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower." Although the mortgage informed the Van Goethems that such a "sale might result in a change in the entity (known as the ‘Loan Servicer’) that collects Periodic Payments due under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the Note," the mortgage did not mention any potential fees associated with a sale of the Note or mortgage.

¶8 The Van Goethems undisputedly made their last mortgage payment in August 2008. In 2017, U.S. Bank initiated this action alleging the Van Goethems were in default under the terms of the note and mortgage and seeking to foreclose on the Property. In addition, U.S. Bank requested that the circuit court reform the mortgage to correct a "mutual mistake" contained in the mortgage's legal description of the Property.

¶9 Regarding the alleged "mutual mistake," the complaint asserted that the mortgage's legal description of the Property referred to one of its boundaries as being at the "chord of 62º 17’ 41" W." The correct boundary, according to the complaint, was at the "chord of N. 62º 17’ 41" W." (Emphasis added.) In support of that assertion, attached to the complaint was a copy of a quitclaim deed, recorded in 2001, which transferred the Property from Jeffrey alone to Jeffrey and Sherilyn as husband and wife. That quitclaim deed included the missing letter "N." in the Property's legal description.

¶10 In their answer, the Van Goethems moved to dismiss U.S. Bank's claims on statute of limitations grounds. They also asserted that a mortgage could not be reformed in a foreclosure action, but that such reformation "must be done in a prior lawsuit under a [ WIS. STAT. ] Chapter 841 Declaration in Interest in Real Property lawsuit and/or related law."

¶11 The circuit court denied the Van Goethems’ motion to dismiss.⁵ Subsequently, U.S. Bank moved for summary judgment. In support of its motion, U.S. Bank filed an affidavit from Timeka Motlow, a "contract management coordinator" for U.S. Bank's loan servicer, Ocwen Loan Servicing, LLC (Ocwen).

¶12 As pertinent to this appeal, Motlow averred that the amount "due and owing upon [the Van Goethems’] note and mortgage" was $274,011.18. Motlow based her calculation on her review of the "business records relating to the servicing of the [Van Goethems’] mortgage loan."

¶13 U.S. Bank also submitted an affidavit from Benjamin Verdooren, a "senior loan analyst" for Ocwen's parent company. Verdooren's affidavit described the process that Ocwen undertakes "[w]hen servicing of a mortgage loan is transferred from a prior servicer to Ocwen." Verdooren described this process—referred to as "onboarding"—as follows:

The first step in the onboarding process for a borrower's loan is preboarding, when the borrower's name and information concerning his or her loan are transferred from the prior servicer to Ocwen's computer system. The next step is the actual boarding process, when data concerning the loan's current status including servicing history and other computerized records concerning the loan are transferred electronically from the prior servicer to Ocwen. During this step, data concerning the borrower's loan servicing is checked for errors via a computerized process. The final step in the onboarding process is the correspondence from the prior servicer informing the borrower of the transfer of servicing to Ocwen (the "goodbye" letter), and the correspondence from Ocwen to the borrower informing that it will be servicing the loan (the "hello" letter).

... As part of this computerized onboarding process, the borrower's computerized records concerning his or her loan are transferred to Ocwen's system, and those records become part of Ocwen's computerized servicing records for the borrower's loan. In the onboarding process, the records of the prior servicer regarding a loan are verified for accuracy at the time they are integrated into Ocwen's system. Accordingly, Ocwen relies upon and adopts the records of the prior servicer as accurately setting forth the records concerning the borrower's loan.

Verdooren also averred that he had reviewed the Motlow affidavit and "confirmed" that the amounts set forth in that affidavit as due and owing on the Van Goethems’ note and mortgage were "true and correct based upon my personal review of the computerized records of Ocwen."

¶14 The Van Goethems did not file any affidavits in opposition to U.S. Bank's motion for summary judgment. Instead, they argued that U.S. Bank's "submissions (which include other's records) do not undisputedly prove with admissible evidence all material facts and amounts owed to gain Summary Judgment."

¶15 Following a hearing, the circuit court granted U.S. Bank's summary judgment motion, entered judgment in the amount of $289,437.75, and ordered Van Goethems’ property to be sold at sheriff's sale.⁶ The court also ordered that "the legal description of the mortgaged premises" be "hereby changed" to include the omitted letter "N." The Van Goethems now appeal.

DISCUSSION

¶16 We review de novo the grant of summary judgment, employing the same methodology as the circuit court. Palisades Collection LLC v. Kalal , 2010 WI App 38, ¶9, 324 Wis. 2d 180, 781 N.W.2d 503. A party is entitled to summary judgment when there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). We examine the moving party's submissions to determine whether they constitute a prima facie case for summary judgment. Palisades , 324 Wis. 2d 180, ¶9. If they do, then we examine the opposing party's submissions to determine whether there are material facts in dispute that entitle the opposing party to a trial. Id.

¶17 Affidavits in support of, and in opposition to, a motion for summary judgment "shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence." WIS. STAT. § 802.08(3). On summary judgment, the party submitting the affidavit need not submit sufficient evidence to conclusively demonstrate the admissibility of the evidence it relies on in the affidavit. Palisades , 324 Wis. 2d 180, ¶10. Instead, that party need only make a prima facie showing that the evidence would be admissible at trial. Id. If admissibility is challenged, the court must then determine whether the evidence would be admissible at trial. Id.

¶18 Here, the Van Goethems’ primary challenge to the...