PNC Bank, N.A. v. Bierbrauer (WI)


Summary: Bank employee’s affidavit based on personal knowledge sufficient to establish the bank’s right to enforce a note secured by a mortgage for purposes of summary judgment.


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PNC Bank, N.A. v. Bierbrauer, 346 Wis. 2d 1, 827 N.W.2d 124 (Wis. Ct. App. 2012).


Facts: PNC Bank brought a foreclosure action against the Bierbrauers alleging PNC to be the current holder of a note and mortgage encumbering the Bierbrauers’ property. However, First Franklin, a Division of National City Bank of Indiana, was listed as the lender in both the note and mortgage. The Bierbrauers demanded proof that PNC is the proper holder of the note and mortgage.

PNC, in support for summary judgment, provided the affidavit of Merlobel Custodio, a document control officer for the servicer of the Bierbrauers’ loan. Custodio, through personal inspection of the records, averred PNC the current holder of the note and mortgage and that the Bierbrauers were in default of their loan. At the summary judgment hearing, the Bierbrauers contended that the Custodio’s affidavit had not established a prima facie case that PNC was the holder of the note. The circuit court agreed and denied summary judgment. PNC then moved for reconsideration and the court reversed its earlier decisions and granted summary judgment in favor of PNC holding that the Bierbrauers had failed to submit any evidence in opposition establishing a genuine issue of material fact against PNC’s right to enforce the note.

The Bierbrauers then moved for reconsideration contending the documents produced by PNC did not establish PNC to be the proper holder of the note and mortgage and demanded a trial. The court denied the Bierbrauers’ reconsideration motion and reaffirmed summary judgment for PNC.


Holding: Affirmed. The appellate court disagreed with the Bierbrauers that summary judgment was inappropriate as there was no dispute of material facts. PNC had the right to enforce the underlying note because it had established that it was the current holder of the note through Custodio’s affidavit. The court also considered whether the documents submitted by the Bierbrauers in its motion for reconsideration created a genuine dispute of material fact to warrant a reversal of summary judgment and held that it did not. The court reasoned that even though the note transferring the note from the original issuer to subsequent purchasers was endorsed in blank, it becomes payable to the bearer per Wisconsin law.


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By: ATG Underwriting Department | Posted on: Fri, 06/14/2013 - 2:14pm