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Sufficiency of Evidence

By: Derek Hawkins//August 6, 2019//

Sufficiency of Evidence

By: Derek Hawkins//August 6, 2019//

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WI Court of Appeals – District III

Case Name: Wells Fargo Bank, N.A., et al. v. Thomas J. Juza, et al.

Case No.: 2017AP1515

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Sufficiency of Evidence

This appeal arises from an action brought by Bank of America, N.A. (BANA) to foreclose upon a mortgage secured by real estate owned by Thomas and Michelle Juza. In 2010, the circuit court granted summary judgment of foreclosure to BANA. The sole evidentiary support the court relied upon in doing so was an affidavit BANA filed from Robert Rybarczyk.

In 2016, after multiple failed attempts to sell the foreclosed property, the Juzas brought a motion to vacate the judgment of foreclosure and dismiss the underlying foreclosure action. As grounds, they alleged that BANA had committed a fraud on the circuit court by submitting the Rybarczyk affidavit, as BANA knew that Rybarczyk lacked personal knowledge of the facts he averred to in his affidavit. Following an evidentiary hearing, the court concluded that BANA had, in fact, committed a fraud on the court. Accordingly, it granted the Juzas’ motion to vacate the foreclosure judgment and dismissed the foreclosure action with prejudice.

Wells Fargo Bank, N.A.—BANA’s successor in interest—now appeals, raising two primary arguments. First, it contends there was insufficient evidence to support the circuit court’s conclusion that BANA committed fraud on the court. Second, it asserts that even if the court properly concluded BANA committed fraud on the court, the court erroneously exercised its discretion by dismissing the underlying foreclosure action with prejudice. We reject both of those arguments, as well as various other challenges Wells Fargo brings to the court’s decision, and therefore affirm the judgment. Nonetheless, we reject the Juzas’ assertion that Wells Fargo’s appeal is frivolous, and we therefore deny their motion for an award of attorney fees and costs under WIS. STAT. RULE 809.25(3) (2017-18).

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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