WisBar News-
The Wisconsin Supreme Court has ruled (5-2) that an attorney’s presentment of an original note secured by a mortgage in court was enough to establish that the bank was entitled to judgment of foreclosure based on “possession” of the note.
That is, in Deutsche Bank National Trust Co. v. Wuensch, 2018 WI 35 (April 17, 2018), the majority ruled that “presentment of a party’s attorney of an original, wet-ink note endorsed in blank is admissible evidence and enforceable against the borrower without further proof that the holder had possession at the time the foreclosure action was filed.”
The majority’s decision reversed the appeals court, which had ruled that an attorney’s “possession” of a purported original note, endorsed in blank, was not sufficient to prove the attorney’s client “possessed” the note for purposes of a foreclosure action.
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The opinion isn’t yet available on google scholar, but can be found on the Wisconsin Supreme Court page.
From page 25, last paragraph, 2nd sentence:
“After examining the copy and the original side-by-side, the circuit court found the Note presented by Deutsche Bank’s trial counsel to be the original Note and accordingly admitted a copy into evidence.”
This hinges on whether the document purported to be an original was actually an original.
The closest Plaintiff came to providing extrinsic evidence of authenticity was an unsworn statement by Plaintiff’s counsel. Unsworn statements are not evidence. We also know that counsel is prohibited from testifying.
From page 14, last paragraph, 3rd sentence:
“Wisconsin Stat. § 909.015(3) permits the trier of fact to compare specimens that have been authenticated, and Wis. Stat. § 909.02(9) provides that commercial paper is selfauthenticating under chs. 401-411.”
This is the big rub. Commercial paper is typically self-authenticating. THE ORIGINAL is self-authenticating.
A copy of commercial paper is not self-authenticating. Neither is a counterfeit of commercial paper self-authenticating.
In this case (and many others) the determination of whether, or not, a document is an/the original of a piece of commercial paper, and therefore self-authenticating, ends up being made a judge. This, in essence, places the judge in the position of being not “the trier of fact,” but rather in the position of being a forensic document examiner acting as an expert witness. I am unaware that judges routinely undergo training in forensic document examination.