835 N.W.2d 527
Wis. Ct. App.2013Background
- Bank of America sued Jeffrey Neis for foreclosure, alleging default on a residential mortgage and note and attaching loan documents; Neis denied ownership/holding of the note and mortgage.
- Bank moved for summary judgment and submitted affidavits (Zablocki, Morris, later Doss‑Parker) attaching: mortgage, promissory note (with an allonge showing prior endorsements), payment history, notice of intent to accelerate, account information statement, and an assignment recorded in the register of deeds.
- Neis objected that several attachments were hearsay and that the affidavit foundation (primarily Doss‑Parker’s) failed to establish admissibility under Wis. Stat. § 908.03(6) (business/regularly‑conducted‑activity records); he later deposed Doss‑Parker and relied on portions of that testimony.
- The circuit court ruled the records admissible under § 908.03(6) and granted summary judgment to Bank of America; Neis appealed.
- The court of appeals reviewed the § 908.03(6) issue de novo, applied Palisades Collection LLC v. Kalal standards, and addressed whether the mortgage and note were hearsay.
Issues
| Issue | Neis' Argument | Bank of America’s Argument | Held |
|---|---|---|---|
| Admissibility under Wis. Stat. § 908.03(6) of payment history, notice of intent to accelerate, and account information statement | Doss‑Parker lacks personal knowledge/foundation; affidavit parrots statute; deposition shows she wasn’t present when records created | Doss‑Parker’s training, familiarity with recordkeeping, and specific averments that records were taken from Bank business records and created by Bank constitute a prima facie foundation; deposition was based on an unduly narrow definition of “personal knowledge” | Payment history, notice, and account statement are admissible under § 908.03(6); affidavit made prima facie showing and deposition did not defeat it |
| Admissibility of mortgage and promissory note under § 908.03(6) | Doss‑Parker lacks personal knowledge of how M&I (original creator) prepared those documents; affidavit insufficient | Bank argued mortgage and note are admissible (and alternatively not hearsay) | Doss‑Parker’s affidavit did not make a prima facie showing under § 908.03(6) for the mortgage and note, but the documents are nonetheless admissible because they are not hearsay when offered for legal effect |
| Whether mortgage/note are hearsay | Documents are hearsay if offered for truth (implied) | Contracts/notes are legally operative documents offered for legal effect, not hearsay; assignment and note demonstrate enforceability | Mortgage and note are not hearsay when offered to establish legal rights/standing; admissible on that ground |
| Validity/admissibility of recorded assignment and existence of genuine factual dispute over Bank’s right to enforce | Assignment might be defective/created for litigation; endorsement discrepancies and corporate predecessors raise questions | Assignment is a recorded, certified document showing assignment to BAC Home Loans (Bank’s predecessor); assignment not hearsay and suffices to show right to enforce; endorsement issue immaterial here | Assignment admissible; Neis failed to raise a developed factual dispute sufficient to defeat summary judgment |
Key Cases Cited
- Palisades Collection LLC v. Kalal, 324 Wis. 2d 180 (Wis. Ct. App. 2010) (sets standards for when a records custodian or qualified witness has the personal knowledge needed to admit business/regularly conducted activity records under § 908.03(6))
- Gross v. Woodman's Food Mkt., Inc., 259 Wis. 2d 181 (Wis. Ct. App. 2002) (discusses discretionary review of affidavit foundation and when courts may disregard legal conclusions in affidavits)
- State v. Williams, 253 Wis. 2d 99 (Wis. 2002) (records prepared in anticipation of litigation may fall outside § 908.03(6))
- Town of Fifield v. State Farm Mut. Auto. Ins. Co., 120 Wis. 2d 227 (Wis. 1984) (permitting summaries of invoices under § 908.03(6) on custodian testimony)
- City of Milwaukee v. Allied Smelting Corp., 117 Wis. 2d 377 (Wis. Ct. App. 1983) (admitting inspection reports under § 908.03(6) via supervisor testimony)
- United States v. Davis, 596 F.3d 852 (D.C. Cir. 2010) (checks and money orders are not hearsay when offered for their legal effect)
- Kepner‑Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994) (wills, contracts, and promissory notes have independent legal significance and are non‑hearsay)