Bank's Affidavit Not Good Enough For Foreclosure

Wisconsin case law summary by Attorney Richard Clem: mortgage foreclosure, evidence.

US Bank, National Association, v. Robert R. Nelson and Hiroko Nelson. WI mortgage foreclosure, evidence.

US Bank brought an action in Dane County Circuit Court to foreclose the mortgage of Robert R. Nelson and Hiroko Nelson for their Madison property. The bank filed for summary judgment, and that motion was supported by the bank's attorney, Andrew Zbaracki, and one of its employees, Marcia Allen.

The Allen affidavit referred generally to US Bank's procedures for keeping documents, but she did not state that she had any personal knowledge of how those records were created. The Nelsons maintained that this was improper under the 2010 case Palisades Collection LLC v. Kalal, 2010 WI App 38, 324 Wis. 2d 180, 781 N.W.2d 503. That case allows business records to be admitted into evidence if two conditions are met: A records custodian must be qualified to testify that the records (1) were made at or near the time by, or from information transmitted by, a person with knowledge; and (2) that this was done in the course of a regularly conducted activity.

The trial court, Judge Frank Remington, agreed with the bank that the affidavit was sufficient, and granted summary judgment. The Nelsons appealed to the Wisconsin Court of Appeals. The Court of Appeals held that the affidavit was insufficient, because Allen had not stated that she was familiar with how the documents were created. She did testify as to how they were maintained. But her silence as to knowledge of their creation made the affidavit inadequate to support the summary judgment.

The Nelsons raised another issue that the Court of Appeals rejected. An assignment of the mortgage had been notarized, and the Nelsons obtained a copy of the notary's signature from Anoka County, Minnesota. They argued that the signatures did not match, but the circuit court had concluded that the difference was "infinitesimally small." The bank also obtained an affidavit from the notary stating that the signature was his. The Court of Appeals held that the Nelson's argument was not sufficient to defeat summary judgment on this issue.

Because the record custodian's affidavit was insufficient, the Court of Appeals reversed the summary judgment. The case was heard by appeals judges Blanchard, Sherman, and Kloppenburg.

No. 2013AP755 (Wis. Ct. App. Feb. 27, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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