Civil Procedure — claim preclusion — foreclosure

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Wisconsin Court of Appeals

Civil

Civil Procedure — claim preclusion — foreclosure

James Moser appeals an order of the circuit court granting Anchor Bank’s motion to dismiss Moser’s action under the doctrine of claim preclusion. In a prior action, following Moser’s mortgage loan default, Anchor Bank, the mortgagee, obtained a judgment of foreclosure and the confirmation of a sheriff’s sale. In the current action, Moser alleges that he is entitled to damages because various acts and omissions of Anchor Bank improperly denied Moser a mortgage loan modification, which would have halted the sale of his property and restored his right to retain the property. Moser argues that claim preclusion does not apply to his loan modification claims because facts necessary to these claims were not in existence when Anchor Bank filed the foreclosure action or when the judgment of foreclosure was entered. However, we agree with the circuit court that, because Moser could have brought his claims prior to the confirmation of sale, claim preclusion and the common-law compulsory counterclaim rule apply to bar his current claims. We therefore affirm the decision of the circuit court. Not recommended for publication in the official reports.

2012AP2700 Moser v. Anchor Bank FSB, et al.

Dist IV, Dane County, Albert, J., Lundsten, P.J.

Attorneys: For Appellant: Pagel, Briane F., Jr., Madison; For Respondent: Cummings, Shannon K., Brookfield