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Property – foreclosure — possession

Wisconsin Court of Appeals


Property – foreclosure — possession

Waterstone Bank SSB, f/k/a Wauwatosa Savings Bank, appeals from an order denying its request for summary judgment on a trespass counterclaim brought by Joel Heller and Teresa Clewell (collectively referred to as “the Hellers”).

Waterstone brought a foreclosure action against the Hellers after they defaulted on their mortgage. The circuit court granted Waterstone summary judgment. The Hellers then amended their answer to include a counterclaim for trespass due to Waterstone’s entering upon their property and placing a sign in the window with its contact information and, eleven days later, changing the locks on the house and installing a lockbox. Both Waterstone and the Hellers moved for summary judgment on the trespass claim. The court denied both motions. In denying Waterstone’s motion, the court concluded that even if Waterstone had consent to first enter the property, a question of fact exists regarding the actions taken by Waterstone when it returned to the property. On appeal, Waterstone contends that the Hellers consented to all of its challenged actions by the terms of the mortgage note and mortgage they previously signed. We agree and reverse. Not recommended for publication in the official reports.

2011AP473 Waterstone Bank SSB vs. Heller, et al.

Dist II, Kenosha County, Schroeder, J., Gundrum, J.

Attorneys: For Appellant: Bruss, William F., Milwaukee; Wells, Patrick L., Milwaukee; Vap, Mark C., Milwaukee; Noyes, Kelly J., Milwaukee; For Respondent: Vescio, Michael R., Milwaukee; Werkowski, Paul C., Greenfield

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