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brokedickdog -> RE: Another foreclosure story with a difference (MINE) (2/23/2011 1:41:33 PM)
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ORIGINAL: Real0ne
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ORIGINAL: Termyn8or
You call what I said cheering him on ? Not quite.
HUH? Hayl yeh I will cheer them on! Get the fucker for nuttin! Money on mtv!
Term thats what those bastards have been doing to us since the begining of time.
Once people start to see the fraud and I am sure at this point of the game BDD is ass deep in dealing with it as I pointed out with the HIDC statement I made.
Its all fraud and "presumption". the problem is and always has been to get to the courts in collusion with the banks to move to the merits of the case!
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¶ 10 Because we conclude that the court properly exercised its discretion in reopening the foreclosure action, we reject the Canos' corollary argument that the Bank was required to serve a new summons and complaint to commence new foreclosure proceedings. We turn, then, to the summary judgment proceedings. ¶ 11 We review summary judgment de novo, applying the same methodology as the circuit court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-16, 401 N.W.2d 816 (1987). We first examine the pleadings to determine whether the plaintiff has stated a claim. Id. at 315. The Bank's complaint asserts that Diane Cano entered into a mortgage agreement with Mortgage Electronic Registration Systems, Inc., as a nominee for S&L Investment Lending, Inc., in July 2006. It asserts that the Bank is the current holder of the mortgage and Countrywide Home Loans, Inc., is the servicer of the mortgage. It states that the Canos failed to make their mortgage payments from January 2007 to the date of the complaint in April 2007. Thus, we conclude that the complaint states a claim for foreclosure. Diane Cano answered, denying that she had failed to make the payments. ¶ 12 Our next step in the summary judgment methodology is to examine whether the summary judgment submissions establish that the moving party is entitled to judgment as a matter of law. See id. We begin by examining the Bank's summary judgment submissions to determine whether it has established a prima facie case for summary judgment. See Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶ 9, 324 Wis. 2d 180, 781 N.W.2d 503 (citation omitted). Only if the Bank has made a prima facie case do we turn to the Canos' submissions to determine if there are any material facts in dispute. See id. ¶ 13 The Bank submitted two affidavits to support its motion for summary judgment: one by an attorney for the Bank, and one by an agent for BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P. ¶ 14 The attorney averred that Diane Cano executed a note secured by a mortgage on her property in July 2006; that an assignment of the mortgage to the Bank was recorded in June 2007; and that the Canos had failed to make the January 2007 and subsequent mortgage payments, leading the Bank to file this foreclosure action in April 2007. The attorney attached the following documents to his affidavit: the mortgage assignment; a statement of the Canos' mortgage payment history for September 2006 to May 2009 generated by Bank of America Home Loans on June 2, 2009, and indicating that the Canos' last mortgage payment was for December 2006; and a notice of default and acceleration Countrywide sent to Diane Cano in February 2007. ¶ 15 The BAC agent averred that he had access to the financial records for the Canos' mortgage; that Diane Cano executed a mortgage to Mortgage Electronic Registration Systems, Inc., acting as nominee for S&L Investment Lending, Inc.; and that the Canos had failed to make their January 2007 and subsequent mortgage payments. The agent did not attach any documents to his affidavit. ¶ 16 We conclude that the Bank's affidavits do not establish a prima facie case for summary judgment. Affidavits supporting a summary judgment motion must be based on personal knowledge and "set forth such evidentiary facts as would be admissible in evidence."[4] WIS. STAT. § 802.08(3). Nothing in the attorney's affidavit indicates that the attorney's averments as to the Canos' payment history are based on personal knowledge. To the extent that the affidavit relies on the attached payment history with Bank of America, we conclude that the affidavit does not set forth the facts necessary to establish a prima facie case that the bank's purported payment history would be admissible at trial. ¶ 17 As we explained in Palisades, an affidavit must establish a prima facie case that attached payment statements are admissible evidence under an exception to the hearsay rule to support a motion for summary judgment. See Palisades, 324 Wis. 2d 180, ¶ 11 & n.3; WIS. STAT. § 908.01(3) (defining "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted") and § 908.02 (hearsay generally inadmissible). Here, the only arguably applicable exception to the hearsay rule is the exception for business records under WIS. STAT. § 908.03(6) (records "made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness" are not excluded by hearsay rule). Thus, for the statement of the Canos' payments to support a motion for summary judgment, the affidavit must establish that the affiant "is qualified to testify that: (1) the records were made at or near the time by, or from information transmitted by, a person with knowledge; and (2) this was done in the course of a regularly conducted activity." Palisades, 324 Wis. 2d 180, ¶ 15. The attorney's affidavit contains no such averments. ¶ 18 The BAC agent's affidavit is similarly flawed. The agent avers that his knowledge of the Canos' default on their mortgage is based on his access to the financial records for the Canos' mortgage, yet no financial documents are attached to the affidavit. Even if we assume the BAC agent is referring to the statement attached to the attorney's affidavit, the agent's affidavit fails to set forth the necessary facts to establish a prima facie case for the admissibility of the statement. The agent's affidavit does not contain any facts to show that the agent is qualified to testify that the statement generated by Bank of America on June 2, 2009, was "made at or near the time by, or from information transmitted by, a person with knowledge," or that "this was done in the course of a regularly conducted activity."[5] Id. We conclude that the Bank has not established a prima facie case for summary judgment.[6] Accordingly, we reverse and remand for further proceedings. By the Court.—Judgment reversed and cause remanded for proceedings consistent with this opinion. This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5. [1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted. [2] The transcript of the hearing indicates that only Mario Cano appeared at the hearing, although Diane Cano later implied in a letter to the court that she was present at the hearing, as well. [3] In initially opposing the Bank's foreclosure complaint, the Canos submitted documents indicating the Canos made their mortgage payments to S&L Investment Lending, Inc., through April 2007. While those documents are in the record, they were not submitted to the court in response to the Bank's motion for summary judgment. [4] In Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶ ¶ 12-15, 324 Wis. 2d 180, 781 N.W.2d 503, we declined to resolve the parties' dispute over whether our review of the circuit court's decision on the admissibility of the summary judgment material was de novo or discretionary, because no reasonable view of the affidavit established that the evidence was admissible. We reach the same conclusion here. [5] In addition, the assignment attached to the Bank's counsel's affidavit shows that the alleged default from January to April 2007 occurred prior to the mortgage assignment to the Bank in May 2007. Thus, a reasonable inference is that the agent for the Bank's servicer, BAC, did not have personal knowledge of how the payment records for January to April 2007 were made. [6] Because we conclude that the Bank has not established a prima facie case for summary judgment, we need not examine the Canos' summary judgment submissions. Additionally, we need not address the Canos' argument that the circuit court erred by granting summary judgment upon the Bank's motion for reconsideration without providing the required twenty-day notice under Wis. Stat. § 802.08(2).
I read the Cano opinion the day it came. There were several similar opinions in NJ and OH at about the same time that all hinged on evidentiary issues and defects that were decided favorably for homeowners. I have been pressing the evidentiary issues and arguments for over 2 years and finally some local counsel are beginning to pay attention and understand. The Wisconsin, New Jersey and Ohio defensive BAR obviously have been putting forth these arguments for some time as it takes significant time to bring and conclude an appeal.
Even after reading the Cano opinion I had not read the Wisconsin rule on summary. I have just done so and I'm disappointed to see there is not a provision similar to that in other states that, in addition to requiring that copies of any records or documents referred to in an affidavit be attached to the affidavit, the copies of the records and/or documents must also be sworn or certified. This provision, if Wisconsin had such, would likely be found in 802.08(3). The Wisconsin rule on summary is found in 802.08 generally, and can be seen at:
http://legis.wisconsin.gov/statutes/Stat0802.pdf
If one were to review prior versions of the Wisconsin rules it may be that a provision of this nature has been removed by a prior amendment of its rules.
It may also be the argument fell short of being complete. I am unfamiliar with the Wisconsin Rules of Evidence (and see no specific value in becoming so) but it appears a rather strong argument for the copies being certiied, sworn or authenticated could have been made pursuant to 909.02(12), available at:
http://legis.wisconsin.gov/statutes/Stat0909.pdf
Among the dynamics clearly developing in judicial foreclosure states is that 1) plaintiffs rarely submit evidence admissible under the rules of evidence and when the rules are applied properly the cases frequently fall apart (how can you win a case when all of your evidence has been excluded), 2) when good discovery is run many cases are settled out of court and voluntarily withdrawn by plaintiff (with nondislcosure agreements so it is not possible to know what any settlements entail).
It would be easy to draw the conclusion that plaintiffs CANNOT provide admissible evidence. It would, however, be premature to jump to that conclusion. While there is an emerging pattern it has not yet developed substantially enough to accurately draw that conclusion. At the same time it is also important to know that 96% of foreclosure cases are not defended in any way whatsoever. Of the remaining 4% of cases that are defended many of them have not been defended zealously and are largely a matter of an attorney accepting a retainer, filing one or two boiler plate pleadings and then withdrawing. Ultimately the homeowner is dispossessed of the property and is rendered several thousand dollars poorer in the process. In other words very few cases are adequately defended.
Also of note in the Cano opinion is the express language of the court stating it is passing on a review and ruling in regard to other of the assignments of error put forth by Cano. As mentioned previously this is common behavior of appellate courts - find the first reversible error and issue the opinion based solely upon that error.
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