Dow Family v. PHH Morgage | Wisconsin Supreme Court - the issue of whether PHH has the necessary documents to enforce the note in question was not appealed and must be determined by the circuit court -- MERS

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Dow Family v. PHH Morgage | Wisconsin Supreme Court – the issue of whether PHH has the necessary documents to enforce the note in question was not appealed and must be determined by the circuit court — MERS

Dow Family v. PHH Morgage | Wisconsin Supreme Court – the issue of whether PHH has the necessary documents to enforce the note in question was not appealed and must be determined by the circuit court — MERS

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP221

COMPLETE TITLE:
Dow Family, LLC,
Plaintiff-Appellant-Petitioner,

v.

PHH Mortgage Corporation,
Defendant-Respondent,

U.S. Bank, N.A.,
Defendant.

Excerpt:
¶49 SHIRLEY S. ABRAHAMSON, C.J. (concurring) This is a
mortgage foreclosure case, one of many in Wisconsin and across
the country.1 PHH Mortgage Corporation, which claims to be
assignee of the note and the mortgage in the instant case, has
been a party in over 2,300 cases filed in the Wisconsin circuit
courts, with many cases still open. PHH, and by extension the
Mortgage Electronic Recording System (MERS), upon which it
relies, represent the modern mortgage system, which has become
the subject of frequent litigation in the Great Recession,
during which many homeowners have lost the American dream——
private home ownership.

[…]

¶58 The doctrine of equitable assignment is a common-law
principle that “a transfer of an obligation secured by a
mortgage on property also constitutes a transfer of the
mortgage.”12 The idea of equitable assignment is that a mortgage
has no significance without reference to the note it secures.

¶59 Although the majority opinion concludes “that the
doctrine of equitable assignment is alive and well in
Wisconsin”13 “as evidenced by established case law,”14 its
proffered case law does not support its conclusion.

¶60 The majority opinion cites no Wisconsin precedent
explaining or applying the doctrine of equitable assignment in a
case involving real estate in which the note and mortgage were
held by two different persons. See majority op., ¶¶24-28. The
Wisconsin cases upon which the majority relies are not analogous
to the instant case.

[…]

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