COMMENT: YES, MY FRIENDS, THE WORM IS TURNING BE IT EVER SO SLOWLY. IF WE CAN GET ENOUGH OF THESE CASES OVERTURNED ON THE BASICS OF THE UCC AND COMMON LAW PLEADING STANDARDS, THE JUDGES MAY BEGIN TO START BEING EMBARRASSED. YOU CAN’T PLEAD “HOLDER”, “OWNER” OR “HOLDER IN DUE COURSE” IF YOU’RE NOT THE HOLDER, OWNER, OR HOLDER IN DUE COURSE, OR HOLDER POSSESSION WITH RIGHT TO ENFORCE. THESE BANK ATTORNEYS CAN’T PROVE ANYTHING, FOLKS! I know the homeowner and I know of the attorney. Doing a big job here in Wisconsin.
We first turn to the copy of the note attached to Bank of America’s
complaint. Bank of America alleged in its complaint that it “is the current holder
of [the attached] note,” and it attached to the complaint an uncertified copy of a
note. First, “holder” is a legal term that means, in the foreclosure context, “[t]he
person in possession of a [note] that is payable either to bearer or to an identified
person that is the person in possession.” WIS. STAT. § 401.201(2)(km)1. Whether
an individual is a holder is a legal conclusion, not a factual allegation. Second, the
complaint alleges that attached is “a true copy of the note,” but not that a true copy
of the original note was attached. In addition, the Yahns denied that the attached
copy of the note was a “true copy of the note.”3
¶10 Third, even if the complaint had alleged that the attached note was a
true copy of the original note, the attached copy was not sufficiently authenticated.
In order to be admissible in evidence, a document must be authenticated by
“evidence sufficient to support a finding that the matter in question is what its
proponent claims.” WIS. STAT. § 909.01. The original note, or a certified copy of
the original note, is self-authenticating. See WIS. STAT. § 909.02(9) and (12); see
also WIS. STAT. § 889.08 (addressing certification of copies). However, an
uncertified copy of a note, which may not be a copy of the original note, is not
self-authenticating. See BAC Home Loan Servicing, L.P. v. Williams,
Bank of America incorrectly asserts in its brief on appeal that the Yahns’ “answer does
not specifically deny the authenticity of the note or the authority of the signatures on the note.”
No. 2010AP2334, unpublished slip op. ¶11 (WI App. Sept. 29, 2011); see
generally WIS. STAT. § 909.02.
¶11 Another means of authenticating a document is through testimony of
a witness “with knowledge that a matter is what it is claimed to be.” WIS. STAT.
§ 909.015(1). However, the copy of the note in this case was not authenticated by
Johnson’s affidavit, which makes no mention of the copy of the note attached to
the complaint being a true and correct copy of the self-authenticating original note.
Johnson avers in his affidavit that he has personal knowledge that the records in
Bank of America’s custody are prepared in the ordinary course of business at or
near the time of the transaction or event by persons with knowledge of the
underlying transaction. Johnson’s affidavit does not, however, contain any
specific averments that the copy of the note is a true and correct copy of the
original note. The fact that Johnson may have been in position to authenticate the
copy of the note does not, standing alone, mean that he has done so. Put another
way, assuming without deciding that a clear statement that the uncertified copy
attached to the complaint is a true and correct copy of the original note would be
sufficient to do so, Johnson’s affidavit makes no reference whatsoever to the copy
attached to the complaint.
¶12 We next turn to Johnson’s affidavit. Johnson avers that Bank of
America or its agent “has possession of the promissory note.” However,
Johnson’s averments are silent as to whether Bank of America is in possession of
the original note. Bank of America argues that the uncertified copy of the note
attached to the complaint is evidence that it possesses the original note. However,
Johnson’s affidavit is silent as to whether the copy of the note attached to the
complaint is a true and correct copy of the original note, there are no admissions
on file that the note attached to the complaint is a true copy of the original, and the
Yahns denied that the attached copy is “a true copy of the note.”
¶13 Bank of America makes the additional argument on appeal that its
invitation during discovery to the Yahns for them to inspect the original note and
Bank of America’s attorney’s offer to bring the original note to court were
sufficient, for purposes of summary judgment, to make a prima facie case that it
possesses the original note. Summary judgment is based on the pleadings,
depositions, answers to interrogatories, and admissions on file. See WIS. STAT.
§ 802.08(2). Summary judgment may not be based upon offers by the moving
party to make something available for inspection. If Bank of America wanted to
establish its possession of the note by bringing it into court, it should have done
so, not just offered to do so.
¶14 In summary, neither the copy of the note attached to the complaint,
nor the averments in the affidavits presented by Bank of America, establish that
Bank of America was in possession of the original note. Bank of America has
thus failed to establish that it has the right to enforce the note and to foreclose
based upon any failure on the part of the Yahns to pay according to the terms of
the promissory note.
¶15 Accordingly, for the reasons discussed above, we reverse the circuit
court’s summary judgment decision and remand for further proceedings.4
The Yahns argue that summary judgment should be granted in their favor because the
“record before [this court] is barren of any evidence of a note and mortgage.” The Yahns are
mistaken. Bank of America presented evidence of the existence of a note and mortgage. What
By the Court.—Judgment reversed and cause remanded for further
This opinion will not be published. See WIS. STAT. RULE
Bank of America failed to do on summary judgment is to establish that there is no genuine issue
of material fact as to Bank of America’s possession of the original note. Accordingly, we reject
the Yahns’ argument. The failure of a party to establish the right to summary judgment does not
mean that the other party necessarily prevails on the ultimate issue, only that it is still an issue for
decision by the trier of fact. That the other party may itself establish an entitlement to summary
judgment is only one of the possible outcomes.