July 2011 Vol. 4, No. 6
 

Casenotes

Wisconsin

Mortgage Foreclosure

Aurora Loan Services v Carlsen, 2010 AP 1909 (Wis Ct App, 2011).

Facts: Aurora Loan Services (Aurora) brought a foreclosure action against David and Nancy Carlsen alleging that the Carlsens were in default. The Carlsens responded by denying that Aurora was the holder of the note and owner of the mortgage on their property. Aurora was not the original holder of the note but claimed that Mortgage Electronic Registration Systems (MERS) assigned it the mortgage. Aurora called only one witness at trial, Kelly Conner, an Aurora employee. Aurora attempted to use Conner's testimony to provide a foundation for the admissibility of documents that purported to show that Aurora was the holder of the note.

During Conner's testimony, the attorney for the Carlsens raised numerous objections that various statements made by Conner were hearsay. The trial court sustained these objections and struck from the record many of Conner's statements pertaining to her ownership of the note. Aurora did not admit any of the proposed documents into evidence. The trial court held that Aurora was the owner of the note and the mortgage and entered a foreclosure judgment against the Carlsens.

Holding: Reversed. The court of appeals held that the trial court's finding in favor of Aurora was clearly erroneous because Aurora did not prove that it was the holder of the note. Aurora had attempted to get Conner to say on the record that she was the owner of the note but the trial court struck this from the record as hearsay. The only admissible testimony from Conner during trial was that she was "an Aurora employee who was familiar with some unspecified Aurora documents, who had reviewed some Aurora documents, and who had brought some documents... to court."

There was no evidence that she had any personal knowledge about the Carlsen's mortgage being assigned to Aurora. Under Wisconsin Statutes Section 909.01, documents must be authenticated to be admissible as evidence. The assignment was not certified and, contrary to Aurora's arguments, Conner's testimony did not provide any basis for her to authenticate the document because she exhibited no personal knowledge about it. The trial court "relied on mere argument of Aurora's counsel to make factual findings" and not on actual evidence, therefore the court reversed the judgment.

© ATG|Casenotes/Bulletin 1107_v4n6

[Last update: 7-13-11]

Print this page