By: WISCONSIN LAW JOURNAL STAFF//July 1, 2014//
Wisconsin Court of Appeals
Civil
Property — foreclosure
Edward and Laurie Hornby appeal a summary judgment of foreclosure. They assert Wells Fargo failed to make a prima facie showing that it is entitled to enforce the note and mortgage. They also assert the circuit court erroneously rejected their unclean hands defense and dismissed their counterclaims, alleging they made all required payments under a trial period plan and were therefore entitled to a permanent loan modification under the Home Affordable Modification Program.
We conclude the circuit court properly granted Wells Fargo’s summary judgment motion and dismissed the Hornbys’ counterclaims. No genuine issue of material fact exists concerning Wells Fargo’s ability to enforce the note and mortgage. In addition, the Hornbys have not submitted any documentary evidence that they were entitled to a permanent loan modification, and their assertion of an oral promise from Wells Fargo officials was made for the first time on appeal — too late to save their counterclaims and affirmative defense. This opinion will not be published.
2013AP833 Wells Fargo Bank NA v. Hornby et al.
Dist IV, Dane County, Niess, J., Per Curiam
Attorneys: For Appellant: Pagel, Briane F., Jr., Madison; Baer, Anthony F., Madison; Shah, Rishi G., Madison; For Respondent: Dykeman, Stephanie L., Brookfield; Markvart, Brad A., Brookfield