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Aurora Mers Loses in Wisconsin

Aurora Mers Loses in Wisconsin

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Published by Mark Anaya
aurora, MERS loses in Wisconsin, Foreclosure reversed!
aurora, MERS loses in Wisconsin, Foreclosure reversed!

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Published by: Mark Anaya on Mar 29, 2011
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11/15/2013

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NOTICE
COURT OF APPEALSDECISIONDATED AND FILED
 
March 24, 2011
A. John VoelkerActing Clerk of Court of AppealsThis opinion is subject to further editing. If published, the official version will appear inthe bound volume of the Official Reports.A party may file with the Supreme Court apetition to review an adverse decision by theCourt of Appeals.
See
W
IS
.
 
S
TAT
. § 808.10and R
ULE
809.62.
Appeal No. 2010AP1909
Cir. Ct. No. 2008CV2441
 
STATE OF WISCONSIN IN COURT OF APPEALSDISTRICT IVA
URORA
L
OAN
S
ERVICES
LLC,P
LAINTIFF
-R
ESPONDENT
,
V
.D
AVID
J.
 
C
ARLSEN AND
N
ANCY
L.
 
C
ARLSEN
,D
EFENDANTS
-A
PPELLANTS
.
APPEAL from a judgment of the circuit court for Rock County:JAMES WELKER, Judge.
 Reversed 
.Before Vergeront, P.J., Lundsten and Blanchard, JJ. ¶1 LUNDSTEN, J. This appeal involves a foreclosure action initiatedby Aurora Loan Services against David and Nancy Carlsen. Following a courttrial, the circuit court granted judgment of foreclosure in favor of Aurora, findingthat Aurora is the holder of the note and owner of the mortgage and that the
 
No. 2010AP1909
2
Carlsens were in default. We conclude that the circuit court’s finding that Aurorawas the holder of the note, a finding essential to the judgment, is not supported byadmissible evidence. We therefore reverse the judgment.
 Background 
 ¶2 Aurora Loan Services brought a foreclosure suit against David andNancy Carlsen, alleging that Aurora was the holder of a note and owner of amortgage signed by the Carlsens encumbering the Carlsens’ property. TheCarlsens denied several allegations in the complaint and, especially pertinent here,denied that Aurora was the holder of the note. Aurora moved for summary judgment, but that motion was denied. ¶3 A trial to the court was held on June 9, 2010. Aurora called one of its employees, Kelly Conner, as its only witness. Aurora attempted to elicittestimony from Conner establishing a foundation for the admission of severaldocuments purportedly showing that Aurora was the holder of a note thatobligated the Carlsens to make payments and that the Carlsens were in default. Itis sufficient here to say that the Carlsens’ attorney repeatedly objected to questionsand answers based on a lack of personal knowledge and lack of foundation, andthat the circuit court, for the most part, sustained the objections. Aurora’s counseldid not move for admission of any of the documents into evidence. After theevidentiary portion of the trial, and after hearing argument, the circuit court madefindings of fact and entered a foreclosure judgment in favor of Aurora. TheCarlsens appeal. Additional facts will be presented below as necessary.
 
No. 2010AP1909
3
 Discussion
 ¶4 It is undisputed that, at the foreclosure trial, Aurora had the burdenof proving, among other things, that Aurora was the current “holder” of a noteobligating the Carlsens to make payments to Aurora. Because Aurora was not theoriginal note holder, Aurora needed to prove that it was the current holder, whichmeant proving that it had been assigned the note. There appear to be other failuresof proof, but in this opinion we focus our attention solely on whether Aurorapresented evidence supporting the circuit court’s findings that “the businessrecords of Aurora Loan Services show ... a chain of assignment of that ... note”and that “Aurora is the holder of the note.” ¶5 As to assignment of the note, the Carlsens’ argument is simple: thecircuit court’s findings are clearly erroneous because there was no admissibleevidence supporting a finding that Aurora had been assigned the note. TheCarlsens contend that, during the evidentiary portion of the trial, the circuit courtproperly sustained objections to Aurora’s assignment evidence, but the court thenappears to have relied on mere argument of Aurora’s counsel to make factualfindings on that topic. We agree. ¶6 We focus our attention on a document purporting to be anassignment of the note and mortgage from Mortgage Electronic RegistrationSystems to Aurora. At trial, this document was marked as Exhibit D. AlthoughAurora’s counsel seemed to suggest at one point that certain documents, perhapsincluding Exhibit D, were certified, the circuit court determined that the

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