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Foreclosure – Abuse of Discretion

By: Derek Hawkins//September 1, 2015//

Foreclosure – Abuse of Discretion

By: Derek Hawkins//September 1, 2015//

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Civil

7th Circuit Court of Appeals

Officials:  BAUER, FLAUM, and WILLIAMS, Circuit Judges

Foreclosure – Abuse of Discretion

No.14-1491 United Central Bank v. KMWC 845, LLC

Appellant acquiescence to applicability of Illinois law waived any argument that Wisconsin law applied to foreclosure action.

“On appeal, UCB contends that no waiver occurred because it cited to Wisconsin law in both its second amended complaint and motion for summary judgment. In its second amended complaint, UCB cites to two Wisconsin statutes: Wis. Stat. Ann. §§ 846.103 and 846.162 (West 2015). These statutes pertain to procedural aspects concomitant to foreclosure proceedings on Wisconsin properties; they do not speak to what state law governs Mortgage I. In its summary judgment motion, UCB cited to a single Wisconsin case for a general proposition of law. At no point, however, did UCB argue or assert that Mortgage I was governed by Wisconsin law. In fact, UCB’s summary judgment motion is devoid of any choice-of-law discussion; UCB never claimed that it was the original mortgage’s choice-of-law provision, not the mortgage amendment’s choice-of-law provision, which determined the law applicable to its foreclosure claim on Mortgage I. The sole statement that UCB appears to have made regarding choice-of-law came in its response to the appellees’ motion for summary judgment. In its response, UCB explicitly acknowledged that “[t]wo of the three mortgages”—Mortgages II and III—“contain provisions that provide Wisconsin law shall govern,” thus implying that the third mortgage—Mortgage I—selected Illinois law. Furthermore, UCB did not cite a single Wisconsin case in its response to the appellees’s motion for summary judgment; instead, it argued Illinois law throughout. In response to the appellees’ contention that Illinois law applied to Mortgage I, UCB did not direct the district court’s attention to the original mortgage choice-of-law provision, nor did it argue that the original choice-of-law provision should be applied instead of the mortgage amendment’s choice of law provision. Plainly stated, UCB did not raise the arguments presented in its motion for reconsideration prior to the district court’s summary judgment decision.”

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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