Foreclosure – RESPA Violation

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WI Court of Appeals – District IV

Case Name: The Bank of New York Mellon, et al., v. Elizabeth M. Brozek, et al.,

Case No.: 2019AP1736

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Foreclosure – RESPA Violation

This case arises from a foreclosure action filed by The Bank of New York Mellon against Elizabeth and Michael Brozek. At issue on appeal are a counterclaim and an affirmative defense asserted by the Brozeks against the Bank, and a claim asserted by the Brozeks in a third-party complaint against Bayview Loan Servicing, the servicer of the loan that is the subject of the foreclosure action. The counterclaim, affirmative defense, and third-party claim all involve Bayview’s handling of the Brozeks’ multiple applications for a loan modification prior to the commencement of the foreclosure action. The Brozeks argue that on the parties’ cross-motions for summary judgment: (1) the circuit court erroneously granted summary judgment in favor of the Bank (a) dismissing the Brozeks’ counterclaim of breach of the implied duty of good faith and fair dealing, and (b) rejecting the Brozeks’ affirmative defense to the Bank’s foreclosure action of failure to mitigate damages; and (2) the circuit court erroneously granted summary judgment in favor of Bayview, dismissing the Brozeks’ claim that Bayview violated the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601-17 (2018).

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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.