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Property – foreclosure — summary judgment

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2013//

Property – foreclosure — summary judgment

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2013//

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Wisconsin Court of Appeals

Civil

Property – foreclosure — summary judgment

An affidavit detailing a bank’s procedures by someone with personal knowledge of the procedures is sufficient to obtain summary judgment in a foreclosure action.

“Neis argues that Doss-Parker’s affidavit represents nothing more than the assertions of a ‘spokesperson’ or ‘robowitness’ lacking personal knowledge regarding the creation of these documents.  In support of this argument, Neis points out that the affidavit did not specify ‘the procedures used to create’ them, ‘where’ they were created, and whether they were created by a third party.  On this last point, we conclude that it is not a reasonable reading of the affidavit that Doss-Parker failed to aver that Bank of America created the payment history, notice of intent to accelerate, or the account information statement.  As to the other points, Neis appears to suggest that a prima facie evidentiary foundation for purposes of WIS. STAT. § 908.03(6) requires, if not proof that the affiant was personally present when the documents at issue were created, then at least proof of what particular procedures were followed in creating them.  However, the need for this type of proof in a prima facie showing is not suggested by Palisades or any other authority Neis cites.  Palisades requires a showing that the witness has personal knowledge of how the documents in question were created, not that the witness describe the procedures used to create those documents or the precise location of their creation.  Of course such a description could help support a prima facie showing that the witness has the requisite knowledge.  However, such a description is not necessary to make the required showing.”

Affirmed.

Recommended for publication in the official reports.

2012AP1994 Bank of America, NA, v. Neis

Dist. IV, Columbia County, George, J., Blanchard, J.

Attorneys: For Appellant: Peterson, Reed, Madison; For Respondent: Muth, David P., Milwaukee; Zablocki, Steven, New Berlin; Foshag, William N., New Berlin; Remington, John R., Milwaukee; Gutschow, Brandon, Milwaukee

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