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AURORA v. Carlsen, Wis: Court of Appeals, 4th Dist. 2011 – REVERSED “FAILED MERS ASSIGNMENT, FAILED AFFIDAVIT, FAILED STANDING, FAILED CASE”

AURORA v. Carlsen, Wis: Court of Appeals, 4th Dist. 2011 – REVERSED “FAILED MERS ASSIGNMENT, FAILED AFFIDAVIT, FAILED STANDING, FAILED CASE”


AURORA LOAN SERVICES LLC,

PLAINTIFF-RESPONDENT,

V.

DAVID J. CARLSEN AND NANCY L. CARLSEN,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Rock County:

JAMES WELKER, Judge. Reversed.

Before Vergeront, P.J., Lundsten and Blanchard, JJ.

¶1 LUNDSTEN, J. This appeal involves a foreclosure action initiated
by Aurora Loan Services against David and Nancy Carlsen. Following a court
trial, the circuit court granted judgment of foreclosure in favor of Aurora, finding
that Aurora is the holder of the note and owner of the mortgage and that the
Carlsens were in default. We conclude that the circuit court’s finding that Aurora
was the holder of the note, a finding essential to the judgment, is not supported by
admissible evidence. We therefore reverse the judgment.

Background

¶2 Aurora Loan Services brought a foreclosure suit against David and
Nancy Carlsen, alleging that Aurora was the holder of a note and owner of a
mortgage signed by the Carlsens encumbering the Carlsens’ property. The
Carlsens denied several allegations in the complaint and, especially pertinent here,
denied that Aurora was the holder of the note. Aurora moved for summary
judgment, but that motion was denied.

¶3 A trial to the court was held on June 9, 2010. Aurora called one of
its employees, Kelly Conner, as its only witness. Aurora attempted to elicit
testimony from Conner establishing a foundation for the admission of several
documents purportedly showing that Aurora was the holder of a note that
obligated the Carlsens to make payments and that the Carlsens were in default. It
is sufficient here to say that the Carlsens’ attorney repeatedly objected to questions
and answers based on a lack of personal knowledge and lack of foundation, and
that the circuit court, for the most part, sustained the objections. Aurora’s counsel
did not move for admission of any of the documents into evidence. After the
evidentiary portion of the trial, and after hearing argument, the circuit court made
findings of fact and entered a foreclosure judgment in favor of Aurora. The
Carlsens appeal. Additional facts will be presented below as necessary.

Discussion

¶4 It is undisputed that, at the foreclosure trial, Aurora had the burden
of proving, among other things, that Aurora was the current “holder” of a note
obligating the Carlsens to make payments to Aurora. Because Aurora was not the
original note holder, Aurora needed to prove that it was the current holder, which
meant proving that it had been assigned the note. There appear to be other failures
of proof, but in this opinion we focus our attention solely on whether Aurora
presented evidence supporting the circuit court’s findings that “the business
records of Aurora Loan Services show … a chain of assignment of that … note”
and that “Aurora is the holder of the note.”

¶5 As to assignment of the note, the Carlsens’ argument is simple: the
circuit court’s findings are clearly erroneous because there was no admissible
evidence supporting a finding that Aurora had been assigned the note. The
Carlsens contend that, during the evidentiary portion of the trial, the circuit court
properly sustained objections to Aurora’s assignment evidence, but the court then
appears to have relied on mere argument of Aurora’s counsel to make factual
findings on that topic. We agree.

¶6 We focus our attention on a document purporting to be an
assignment of the note and mortgage from Mortgage Electronic Registration
Systems to Aurora. At trial, this document was marked as Exhibit D. Although
Aurora’s counsel seemed to suggest at one point that certain documents, perhaps
including Exhibit D, were certified, the circuit court determined that the
documents were not certified. Under WIS. STAT. § 889.17,1 certified copies of
certain documents are admissible in evidence based on the certification alone.
Aurora does not contend that Exhibit D is admissible on this basis.

¶7 Aurora argues that Conner’s testimony is sufficient to support the
circuit court’s finding that Aurora had been assigned the note. Our review of her
testimony, however, reveals that Conner lacked the personal knowledge needed to
authenticate Exhibit D. See WIS. STAT. § 909.01 (documents must be
authenticated to be admissible, and this requirement is satisfied “by evidence
sufficient to support a finding that the matter in question is what its proponent
claims”). Relevant here, Conner made general assertions covering several
documents. Conner either affirmatively testified or agreed to leading questions
with respect to the following:

  • · She works for Aurora.
  • · She “handle[s] legal files” and she “attend[s] trials.”
  • · “Aurora provided those documents that are in [her] possession.”
  • · She “reviewed the subject file” in preparing for the hearing.
    • · She declined to agree that she is the “custodian of records for

Aurora.”

    • · She “look[s] at documentation … [does] not physically handle

original notes and documents, but [she does] acquire
documentation.”

  • · “Aurora [is] the custodian of records for this loan.”
  • · She is “familiar with records that are prepared in the ordinary course
    of business.”
  • · She has “authority from Aurora to testify as to the documents, of
    [Aurora’s] records.”

As it specifically pertains to Exhibit D, the document purporting to evidence the
assignment of the note and mortgage from Mortgage Electronic Registration
Systems to Aurora, Conner testified:

  • · Aurora has “possession of Exhibit D.”
  • · Exhibit D is “an assignment of mortgage.”

With respect to possession of Exhibit D, Conner did not assert that Exhibit D was
an original or that Aurora had possession of the original document. For that
matter, Conner did not provide a basis for a finding that any original document she
might have previously viewed was what it purported to be.2

¶8 Thus, Conner did no more than identify herself as an Aurora
employee who was familiar with some unspecified Aurora documents, who had
reviewed some Aurora documents, and who had brought some documents,
including Exhibit D, to court. Although Conner was able to say that Exhibit D, on
its face, was an assignment, she had no apparent personal knowledge giving her a
basis to authenticate that document. See WIS. STAT. § 909.01.

¶9 Aurora points to various provisions in WIS. STAT. chs. 401 and 403,
such as those relating to the definition of a “holder” (WIS. STAT.
§ 401.201(2)(km)), to a person entitled to enforce negotiable instruments (WIS.
STAT. § 403.301), and to the assignment of negotiable instruments (WIS. STAT.
§§ 403.203, 403.204, and 403.205). This part of Aurora’s argument addresses the
underlying substantive law regarding persons entitled to enforce negotiable
instruments, such as the type of note at issue here, but it says nothing about
Aurora’s proof problems. That is, Aurora’s discussion of the underlying law does
not demonstrate why Exhibit D was admissible to prove that Aurora had been
assigned the note and was, under the substantive law Aurora discusses, a party
entitled to enforce the note.

¶10 Similarly, Aurora discusses the relationship between a note and a
mortgage and, in particular, the equitable assignment doctrine. But here again
Aurora’s discussion fails to come to grips with Aurora’s failure to authenticate
Exhibit D, the document purporting to be an assignment of the note to Aurora.
Aurora points to testimony in which Conner asserted that Aurora acquired and
possessed Exhibit D, but possession of Exhibit D is meaningless without
authentication of the exhibit.

¶11 Aurora argues that we may look at the “record as a whole,”
including summary judgment materials, to sustain the circuit court’s factual
findings. Thus, for example, Aurora asks us to consider an affidavit filed with its
summary judgment motion. In that affidavit, an Aurora senior vice-president
avers that the note was assigned to Aurora, that the assignment was recorded with
the Rock County Register of Deeds, and that Aurora is the holder of the note. This
argument is meritless. Aurora was obliged to present its evidence at trial. It could
not rely on the “record as a whole” and, in particular, it could not rely on summary
judgment materials that were not introduced at trial. See Holzinger v. Prudential
Ins. Co., 222 Wis. 456, 461, 269 N.W. 306 (1936). For that matter, even if Aurora
had, at trial, proffered the affidavit of its senior vice-president, the affidavit would
have been inadmissible hearsay. See WIS. STAT. § 908.01(3) (“‘Hearsay’ is a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.”).

¶12 In sum, Aurora failed to authenticate Exhibit D, the document
purporting to be an assignment of the note. Thus, regardless of other alleged proof
problems relating to that note and the Carlsens’ alleged default, the circuit court’s
finding that Aurora was the holder of the note is clearly erroneous—no admissible
evidence supports that finding. Aurora failed to prove its case, and it was not
entitled to a judgment of foreclosure.

By the Court.—Judgment reversed.

Not recommended for publication in the official reports.

_______________________________________

1All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
 2 Our summary of Conner’s testimony omits several assertions Conner made that were
stricken by the circuit court. Similarly, we have not included examples of the circuit court
repeatedly sustaining hearsay and foundation objections. For example, the court repeatedly
sustained objections to Aurora’s attempts to have Conner testify that Aurora “owns” the note.
Aurora does not and could not reasonably argue that the Carlsens have not preserved their
authentication objections. The Carlsens’ attorney repeatedly and vigorously objected on hearsay,
foundation, and authentication grounds. The record clearly reflects that the Carlsens were
objecting to the admission of all of Aurora’s proffered documents on the ground that Conner
lacked sufficient knowledge to lay a foundation for admission.

[ipaper docId=51510952 access_key=key-2dcpf4gvzz30kaf45tk height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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New Expert-Attorney Rules Effective Dec 1, 2010, Federal Rule of Civil Procedure 26

New Expert-Attorney Rules Effective Dec 1, 2010, Federal Rule of Civil Procedure 26


Effective December 1, 2010, Federal Rule of Civil Procedure 26 will provide new protections and specifications for draft expert reports and certain communications between experts and attorneys. The amendments are significant because they extend work-product protection to communications and drafts that courts now consider discoverable. Current Rule 26(a)(2)(B) requires a testifying expert to disclose in a written report all “data or other information” the expert “considered” in developing his or her opinions. Courts have interpreted that language, and particularly the Rule’s reference to “other information,” to allow discovery of draft expert reports, a broad range of communications between experts and counsel, and documents an expert does not rely upon as a basis for his or her testimony. The 2010 amendments substantially alter these disclosure obligations by: (1) limiting the required disclosures in written expert reports to “facts or data” the expert considered in forming the opinions the expert will express in his testimony; (2) expressly shielding from discovery draft reports or disclosures required under Rule 26(a)(2); and (3) limiting discovery of communications between a party’s attorney and any witness required to provide a Rule 26(a)(2)(B) report unless the communications fall within at least one of three enumerated exceptions.

THIS IS NOT Intended to Be Construed or Relied upon as COMPETENT LEGAL ADVICE—Readers are urged to obtain competent legal representation to review their facts. I am not an attorney and this is not legal advice.

[ipaper docId=41004180 access_key=key-l8m6ax24hqmnxu9dg8c height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Countrywide’s Angelo Mozilo Must Face Trial in SEC Suit, U.S. Judge Rules

Countrywide’s Angelo Mozilo Must Face Trial in SEC Suit, U.S. Judge Rules


I’m really waiting to see who else will join Madoff with “Racketeering”?

By Edvard Pettersson – Sep 17, 2010 12:01 AM ET

Countrywide Financial Corp. former Chief Executive Officer Angelo Mozilo must face trial on regulators’ claims he misled investors about risks tied to subprime lending, a judge ruled.

U.S. District Judge John F. Walter in Los Angeles yesterday denied requests by Mozilo and two other former senior Countrywide executives, David Sambol and Eric Sieracki, for a ruling that there were no genuine issues to be tried. The case is now set for a jury trial in October.

“It remains to be seen whether the Securities and Exchange Commission will be able to convince a jury that defendants’ statements were indeed misleading and material,” Walter said in his decision. “At the summary judgment stage, the judge’s function is not himself to weigh the evidence and determine the truth of the matter.”

The SEC sued Mozilo, 71, in June 2009, saying he publicly reassured investors about the quality of Countrywide’s loans while he issued “dire” internal warnings and sold about $140 million of his own shares.

Mozilo is the most prominent executive targeted by U.S. regulators examining the subprime mortgage crisis. He co-founded Countrywide in 1969 and built it into the nation’s biggest mortgage lender, helping trigger the subprime bubble by offering loans to customers with below-average credit scores.

‘Flying Blind’

He wrote in an e-mail that Countrywide was “flying blind” and had “no way” to determine the risks of some adjustable- rate mortgages, according to the SEC complaint.

Continue reading…. BLOOMBERG

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Posted in bloomberg, concealment, CONTROL FRAUD, corruption, countrywide, foreclosure, foreclosure fraud, foreclosures, investigation, mbs, mozillo, rmbs, stopforeclosurefraud.com, sub-prime, trade secrets, Violations, Wall StreetComments (0)

1st Annual Mortgage Foreclosure Defense Symposium (FL) 8/27

1st Annual Mortgage Foreclosure Defense Symposium (FL) 8/27


Friday, August 27th   Pricing & Registration

8.5 General credits or 8.5 Real Estate credits – Florida Bar Approved Course: 7687-0

Friday, August 27th, 2010   8:30 am – 5:30 pm     (8:30 check-in, 9:00 start)
PGA National Resort & Spa, Palm Beach Gardens, FL
Map and Directions

Co-sponsored by the Legal Aid Society of Palm Beach County

This seminar is designed to update mortgage foreclosure practitioners with the latest case law and practice pointers on how to defend a home secured mortgage foreclosure, and give them some insight into their local court’s practice and procedure for foreclosure cases.

A $100 refund will be given to any attorney who signs up for a pro bono case while at the seminar or before the seminar with evidence that they have taken a case.

Special Offer – Escape & Play from $139! Learn more
A special package for symposium participants is available at the PGA National Resort & Spa, including:

  • unlimited golf for 2
  • Spa access for 2
  • breakfast for 2
  • 2 for 1 drinks, plus more…Learn more about this great package!
  • ___________________________

    COURSE HIGHLIGHTS

    · Foreclosure Defense from Initial Client Interview, Preparing for Litigation, the Summons Complaint, Motion Practice, Pleading Answers, Affirmative Defenses and Counterclaims, Discovery, Motions to Strike, Summary Judgment and Trial – James A. Bonfiglio, Esq.
    · Mortgage Foreclosure & Mediation Issues – Hon. Walter N. Colbath (Ret.)
    · Local Practice and Procedure – Circuit Court Judge (Tentative)
    · Mortgage Foreclosure Defense in a Bankruptcy Context – Tom Abrams, Esq.
    · Foreclosure Defense Mortgage Assignments & Fraud Issues – Lynn E. Szymoniak, Esq.
    · Litigating Mortgage Securitization issues – Lynn E. Szymoniak, Esq.
    © 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



    Posted in foreclosure, foreclosures, Lynn Szymoniak ESQComments (1)

    Bank of America’s error cost Cape Coral woman a house

    Bank of America’s error cost Cape Coral woman a house


    Melanie Payne • Tellmel@news-press.com • July 22, 2010

    1:10 A.M. — Nicole DePuy thought she was one of the lucky ones when she walked out of Harborside Event Center on Jan. 27 with a loan modification that would save her home from foreclosure.

    After waiting hours to talk to her lender at the highly publicized event, the 40-year-old speech-language pathologist had been approved for a trial with the Home Affordable Modification Program.

    Under the government-sponsored program called HAMP, DePuy’s mortgage payments were cut almost in half, dropping from $2,100 to $1,054.

    And best of all, under the terms of the program, all foreclosure action would stop. The scheduled sale of DePuy’s Cape Coral home was prohibited under the terms of the agreement.

    “I thought my problems were over,” DePuy said.

    Nothing could be further from the truth. But DePuy didn’t know that until John Moffatt of Isla Blue Development LLC put a note on her door March 31 telling her to call about her property. Moffatt told DePuy the company he represented had purchased her home in a foreclosure sale at the courthouse.

    DePuy called Bank of America to find out what happened and was told the bank had failed to notify the lawyer handling the foreclosure sale that DePuy was in the trial loan modification program.

    Fort Myers attorney Robert D. Royston Jr. agreed to represent DePuy. He asked the court to set aside the sale “on the basis of the mistake by the plaintiff.”

    Royston filed the contract showing the modification and the HAMP guidelines that read: “Foreclosure sales may not be conducted while the loan is being considered for a modification or during the trial period.”

    The judge didn’t have an opportunity to read the pleadings.

    “The judiciary is having difficulty given the volume to give the attention each case may require,” Royston said.

    Because Isla Blue purchased the house fair and square, it belonged to it, the judge ruled.

    Isla Blue could have kicked DePuy and her 11-year-old daughter out within days of the ruling, but she has been given until the end of the month to move.

    Bank of America told me it would deal with this issue directly with DePuy. A customer advocate contacted her Tuesday, DePuy said, telling her she was looking into it.

    DePuy’s story illustrates the pitfalls of homeowners going it alone when dealing with foreclosures. If DePuy had an attorney, the attorney would have seen the house was still on the foreclosure listings and taken action before the sale.

    Martha Green, the executive assistant at the Home Ownership Resource Center, said that DePuy could have contacted the bank’s attorney herself and told the attorney she had worked out a modification. But going it alone, DePuy would not have known to do that.

    The scary thing is that there are more than 1.2 million homeowners who have started a trial modification under the government’s “Making Home Affordable” plan. I hope it works better for them than it did for DePuy.

    – For more columns and reader forums go to news-press.com/tellmel. Write to Tell Mel at 2442 Martin Luther King Jr. Blvd., Fort Myers, 33901. Call her at 344-4772. E-mail her at tellmel@ news-press.com.


    © 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



    Posted in bank of america, foreclosure, foreclosure fraud, foreclosures, hamp, mistake, mortgage, Mortgage Foreclosure FraudComments (1)

    Couple says bank at fault in foreclosure proceeding

    Couple says bank at fault in foreclosure proceeding


    I think this is the case for many of us who needed the HELOC when times got tough or for an emergency.

    A dispute over a foreclosure is headed for trial.

    By: Judy Wiff, Pierce County Herald Published June 29 2010

    A dispute over a foreclosure is headed for trial.

    A jury trial is set for March 16-17, 2011, in a case brought by Wells Fargo Bank against Deborah and John Sherman II, 434 Court St. North, Prescott. The bank claims the Shermans failed to make payments and now owe $384,236.

    According to the Shermans, they had a 10-year draw period on a line of credit, but when they went to withdraw funds, they found the bank had reduced the credit limit based on a “substantial decline” in the value of their property.

    “The Shermans have never been behind on a payment and use the line of credit in the running of their business,” wrote their attorney as he challenged the foreclosure action.

    Continue reading…here

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    Posted in case, helocComments (0)


    GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
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