PNC Bank, N.A. v. Bierbrauer
| Decision Date | 20 November 2012 |
| Docket Number | No. 2012AP456.,2012AP456. |
| Citation | 2013 WI App 11,827 N.W.2d 124,346 Wis.2d 1 |
| Parties | PNC BANK, N.A., Plaintiff–Respondent, v. Bryan L. BIERBRAUER and Lora L. Bierbrauer, Defendants–Appellants, First Franklin Financial Corporation, Defendant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the defendants-appellants, the cause was submitted on the briefs of James T. Remington of Remington Law Offices, LLC, New Richmond.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher C. Drout of Gray & Associates, LLP, New Berlin.
Before HOOVER, P.J., MANGERSON, J., and THOMAS CANE, Reserve Judge.
[346 Wis.2d 3]¶ 1 Bryan and Lora Bierbrauer appeal a judgment of foreclosure entered in favor of PNC Bank, N.A. The Bierbrauers argue the circuit court erred by granting PNC's summary judgment motion. They contend there is a disputed issue of material fact as to whether PNC has the right to enforce the underlying note. We disagree and affirm.
¶ 2 PNC brought this foreclosure action against the Bierbrauers, alleging that it was the “current owner and holder of a certain note and recorded mortgage” encumbering the Bierbrauers' property and that the Bierbrauers were in default. PNC attached certified copies of the note and mortgage to its complaint. Both the note and mortgage listed First Franklin, a Division of National City Bank of Indiana as the “lender.” The Bierbrauers answered PNC's complaint and, as an affirmative defense, stated,
¶ 3 PNC subsequently moved for summary judgment. In support, it submitted the affidavit of Merlobel Custodio, a document control officer for Select Portfolio Servicing, Inc., the servicer of the Bierbrauers' loan. Custodio averred that Select Portfolio Servicing “has possession, control, and responsibility for the accounting and other mortgage loan records relating to the [Bierbrauers'] mortgage loan[.]” She further stated, “I make this affidavit from my personal inspection of said records and from my own personal knowledge of how these records are created and kept and maintained.” Custodio then averred that PNC “is the current holder of said note and mortgage.” Finally, she asserted that the Bierbrauers were in default and owed PNC $159,026.33.
¶ 4 The Bierbrauers did not file any written response to PNC's summary judgment motion. However, at the motion hearing, they argued PNC was not entitled to summary judgment because Custodio's affidavit did not establish PNC's right to enforce the note.1 The circuit court agreed, concluding PNC had not established a prima facie case that PNC was the holder of the note. The court therefore denied summary judgment.
¶ 5 PNC moved for reconsideration. The Bierbrauers did not respond to PNC's motion or appear at the motion hearing. The court reversed its earlier decision and granted summary judgment in favor of PNC. The court reasoned the Bierbrauers had failed to submit any affidavit or other evidence in opposition to PNC's summary judgment motion and had therefore failed to raise a genuine issue of material fact as to PNC's right to enforce the note.
¶ 6 The Bierbrauers then moved for reconsideration. They also moved to compel PNC to respond to their request for production of documents, which sought “copies of all assignments of the mortgage from First Franklin to any subsequent assignees[.]” The court held a hearing on the Bierbrauers' motions. The Bierbrauers contended they had not presented any documentary evidence in opposition to summary judgment because PNC never responded to their request for production. PNC asserted it had mailed the requested documents to the Bierbrauers' attorney, but he denied receiving them. PNC then agreed to resend the documents, and the Bierbrauers stated that, after receiving the documents, they would tell the court how they wished to proceed.
¶ 7 The Bierbrauers subsequently forwarded to the court the following documents they received from PNC: (1) an “Assignment of Mortgage” from First Franklin, a Division of National City Bank of Indiana to First Franklin Financial Corporation; (2) a note allonge 2 indicating that “FFFC f/n/a First Franklin Financial Corp” endorsed the note in blank; (3) a note allonge indicating that National City Bank of Pennsylvania endorsed the note in blank; and (4) an “Affidavit Regarding Lost or Misplaced Assignment” indicating that PNC purchased the note. The Bierbrauers asserted these documents did not establish that PNC was the proper holder of the note and mortgage. They therefore demanded a trial to the court.
¶ 8 After reviewing the file, the court denied the Bierbrauers' reconsideration motion and reaffirmed its earlier decision granting PNC summary judgment. The court reiterated that PNC made a prima facie case that it was entitled to enforce the note and that the Bierbrauers failed to provide contrary evidence to establish a factual dispute. The court entered a judgment of foreclosure in favor of PNC, and the Bierbrauers appeal.
¶ 9 We review a grant of summary judgment independently, using the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶ 6, 306 Wis.2d 513, 743 N.W.2d 843. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).3 Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶ 9, 324 Wis.2d 180, 781 N.W.2d 503 (citations omitted).
¶ 10 The parties agree that, to be entitled to summary judgment, PNC had to prove it had the right to enforce the Bierbrauers' note. PNC argues it made a prima facie case that...
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