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Property – foreclosure — prima facie case — hearsay

By: WISCONSIN LAW JOURNAL STAFF//October 2, 2014//

Property – foreclosure — prima facie case — hearsay

By: WISCONSIN LAW JOURNAL STAFF//October 2, 2014//

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Wisconsin Court of Appeals

Civil

Property – foreclosure — prima facie case — hearsay

Gary and Susan Fineout appeal a judgment of foreclosure entered in favor of Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, L.P. following a trial to the circuit court. The Fineouts contend that the circuit court erroneously exercised its discretion by admitting testimony from a Bank of America employee that the Fineouts argue constituted inadmissible hearsay and by admitting two loan documents under the exception to the hearsay rule for records of a regularly conducted activity, set forth in Wis. Stat. § 908.03(6) (2011-12). With respect to these issues, the Fineouts fail to persuade us that the circuit court erred.

The Fineouts also argue on appeal that the circuit court erred by granting Bank of America’s motion for partial summary judgment and dismissing the Fineouts’ two counterclaims to the foreclosure action. The Fineouts filed counterclaims against Countrywide Home Loans, Inc., the predecessor to Bank of America, alleging that Countrywide’s refinancing of the Fineouts’ mortgage loan was unconscionable and that Countrywide violated Wisconsin’s mortgage banker laws. We conclude that the court properly dismissed the Fineouts’ unconscionability counterclaim because, even assuming that the refinancing loan agreement was procedurally unconscionable, the Fineouts have failed to establish that it was commercially unreasonable and therefore substantively unconscionable. We further conclude that the court properly dismissed the counterclaim alleging violations of Wisconsin mortgage banker laws because the Fineouts failed to allege any facts in support of that counterclaim. Accordingly, we affirm. Not recommended for publication in the official reports.

2012AP2394 Bank of America N.A. v. Fineout et al.

Dist IV, Dane County, Sumi, J., Higginbotham, J.

Attorneys: For Appellant: Pagel, Briane F., Jr., Madison; Shah, Rishi G., Madison; For Respondent: Perhach, Katherine Maloney, Milwaukee; Demakopoulos, Christina, Brookfield; Karnes, Russell J., Brookfield

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