Property – foreclosure — summary judgment — personal knowledge

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Wisconsin Court of Appeals

Civil

Property – foreclosure — summary judgment — personal knowledge

To obtain summary judgment in a foreclosure action, the lender must submit an affidavit by a person with personal knowledge.

“Duncan contends that Paiement lacks personal knowledge of the facts set forth in his affidavit.  In his affidavit, Paiement claims to have personal knowledge of the execution of the promissory note and mortgage, their assignment to Central Bank, the circumstances surrounding Duncan’s default, Central Bank’s notice of default to Duncan, and Duncan’s failure to cure.  Yet, as the sole basis for this knowledge, Paiement simply avers that he is one of Central Bank’s attorneys in this litigation and has reviewed Central Bank’s records in connection with the representation.”

“‘Personal knowledge’ means the witness perceived the event through one of the five senses and can accurately narrate the memory of those perceptions in court.  See 7 DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE § 602.1 (3d ed. 2008).  Although Paiement avers that he has personal knowledge of the pertinent events, there is no basis in his affidavit for concluding that is so.  His affidavit cites his involvement in the current litigation as the sole basis for his knowledge.  Thus, any knowledge of the described events was necessarily obtained by post hoc document review.”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP2551-FT Central Bank v. Duncan

Dist. III, Polk County, Anderson, J., Mangerson, J.

Attorneys: For Appellant: Murtaugh, Kate, St. Croix Falls; For Respondent: Paiement, Joseph M., Stillwater, Minn.