Foreclosure

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WI Court of Appeals – District IV

Case Name: The Bank of New York Mellon v. Gloria J. Bronson, et al.

Case No.: 2017AP2301

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Foreclosure

This is a foreclosure action initiated by Bank of New York Mellon against Gloria Bronson and Scott Bronson. The circuit court granted the Bank’s motion for summary judgment of foreclosure on a note and mortgage executed by the Bronsons in 2007, and the Bank’s motion to dismiss the Bronsons’ counterclaims relating to two loan modification denials in 2009 and 2010. The Bronsons appeal, challenging the entry of summary judgment of foreclosure and the dismissal of two of their counterclaims.

As to the summary judgment of foreclosure, we conclude that: (1) the Bank’s complaint states a claim upon which relief may be granted in terms of the Bank’s standing to enforce the note; but (2) the Bank’s submissions do not establish a prima facie case for foreclosure because (a) the Bank’s submissions do not establish that the Bank possesses the original note, and (b) the Bank’s submissions fail to establish the total amount owed on the loan.

As to the dismissal of the Bronsons’ two counterclaims, we assume, without deciding, that the counterclaims were properly before the circuit court and conclude that: (1) the summary judgment record establishes no factual basis for the counterclaims that the Bank violated WIS. STAT. § 224.77 (2015-16) or breached its contract with the Bronsons when the then servicer, Bank of America, N.A., denied them a permanent loan modification in 2009; (2) the summary judgment record establishes a genuine dispute of material fact as to whether the Bank, through its servicer Bank of America, denied the Bronsons a permanent loan modification in 2010 in violation of WIS. STAT. § 224.77 because the stated reason for that denial was allegedly false.

Accordingly, we conclude that the Bank’s failure to establish as undisputed both its possession of the original note and the total amount due on the loan preclude granting summary judgment of foreclosure to the Bank; that the circuit court properly dismissed the Bronsons’ counterclaims relating to the 2009 loan modification denial; and that a genuine dispute of material fact precludes dismissal on summary judgment of the Bronsons’ WIS. STAT. § 224.77 counterclaim relating to the 2010 loan modification denial. Thus, we affirm in part, reverse in part and remand the case for further proceedings consistent with this opinion.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.