By: Derek Hawkins//July 17, 2018//
WI Court of Appeals – District IV
Case Name: Ocwen Loan Servicing, LLC. v. Cassandra L. Butcher, et al.
Case No.: 2016AP2146
Officials: Lundsten, P.J., Sherman and Fitzpatrick, JJ.
Focus: Foreclosure – Court Error
This is a foreclosure action initiated against Cassandra and Darrel Butcher by Ocwen Loan Servicing, LCC, the servicer of a loan on behalf of Deutsche Bank. The Dane County Circuit Court denied Butchers’ motion to dismiss and later granted summary judgment in favor of Ocwen. Butchers appeal, arguing that the circuit court erred: (1) in denying their motion to dismiss because claim preclusion bars the present case; (2) in granting summary judgment because the complaint did not state a claim for relief; and (3) in granting summary judgment because Ocwen failed to show that there is no genuine issue of material fact that it is in possession of the original note.
We reject Butchers’ argument related to the motion to dismiss. A previous foreclosure action against the Butchers was dismissed “without prejudice.” The previous dismissal does not carry preclusive effect which bars the present foreclosure claim. Therefore, we affirm the circuit court’s denial of the motion to dismiss.
Regarding Butchers’ contentions about summary judgment, the allegations of the complaint demonstrate that Ocwen has stated a claim upon which relief may be granted. However, there is a genuine issue of material fact regarding whether Ocwen or Deutsche Bank possesses the original note. Therefore, we affirm in part and reverse in part the circuit court’s grant of summary judgment.