The Bank of New York Mellon v. Timothy R. Rumpf ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 16, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP879 Cir. Ct. No. 2017CV2457
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
THE BANK OF NEW YORK MELLON,
PLAINTIFF-RESPONDENT,
V.
TIMOTHY R. RUMPF,
DEFENDANT-APPELLANT,
LORRI ANDERSON, JANE DOE RUMPF,
JOHN DOE ANDERSON, CITIBANK, FEDERAL
SAVINGS BANK, PORTFOLIO RECOVERY
ASSOCIATES, LLC, QUORUM FEDERAL CREDIT
UNION, SMITHS CROSSING HOMEOWNERS
ASSOCIATION, INC. AND UW MEDICAL
FOUNDATION, INC.,
DEFENDANTS.
No. 2019AP879
APPEAL from a judgment of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.
Before Blanchard, Graham, and Nashold, JJ.
¶1 GRAHAM, J. Timothy Rumpf appeals from a judgment of
mortgage foreclosure, which was entered after the circuit court granted summary
judgment in favor of the mortgage holder, Bank of New York Mellon (the
“Bank”). Rumpf contends that the circuit court erred in granting summary
judgment because evidence that the Bank introduced to make its prima facie case
is not admissible, and also because there are genuine issues of material fact about
Rumpf’s affirmative defenses. For the reasons set forth below, we reject both
arguments and affirm.
BACKGROUND
¶2 In 2005, Rumpf took out a mortgage on a property used for rental
income.1 At some point thereafter, the Bank acquired all rights to the mortgage
from the original lender, and it retained Select Portfolio Servicing, Inc., (“SPS”) as
servicing agent to collect payments, maintain records, and perform other mortgage
servicing duties on its behalf.
¶3 Rumpf failed to make payments when they were due, and by 2013,
the mortgage was in default. Between 2013 and 2017, Rumpf communicated with
SPS regarding his application for a loan modification, but no modification was
1
Rumpf holds title to the mortgage jointly with Lorri Anderson, who was co-defendant
in the proceedings before the circuit court. Because Anderson does not join in this appeal, our
opinion does not discuss her part in those proceedings.
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No. 2019AP879
ever approved. In 2017, the Bank initiated this foreclosure action of the mortgage.
The Bank then moved for summary judgment in 2018, and it supported its motion
with an affidavit from Sherry Benight.
¶4 According to Benight’s affidavit, she is an SPS officer with
“personal knowledge” of how SPS’s “business records” are “kept and
maintained.” Benight’s affidavit appears to acknowledge that some of the records
for Rumpf’s loan were created by a prior servicer before being “integrated and
boarded into SPS’s system, such that they are now part of SPS’s business
records.” Based on her personal examination of the records, Benight averred that
the loan was in default, and she included copies of the promissory note and the
notice of default as exhibits to her affidavit. Benight also averred that the total
unpaid principal, interest, and fees due on the mortgage was $251,023.26, and she
attached “business records supporting the above-referenced data.” These records
include an SPS “Payment History Report” and what appear to be accounting
records including payment ledgers from SPS and the original lender.
¶5 Rumpf opposed the Bank’s motion. He did not contest the Bank’s
standing to enforce the mortgage, and he conceded that the mortgage was in
default and that he had failed to cure the default. However, he advanced the
argument that summary judgment was inappropriate because the Bank failed to
attach “any business records” to its summary judgment submission (even though,
as explained above, accounting records were in fact attached to Benight’s
affidavit). Rumpf also argued that two affirmative defenses—unclean hands and
failure to mitigate damages—precluded summary judgment. We provide
additional details about the arguments that the parties advanced before the circuit
court in the discussion section below.
3
No. 2019AP879
¶6 The circuit court issued an oral ruling granting the Bank’s summary
judgment motion, which was then memorialized in a written judgment of
foreclosure. Rumpf appeals.
STANDARD OF REVIEW
¶7 A party is entitled to summary judgment when “there is no genuine
issue as to any material fact” and “the moving party is entitled to a judgment as a
matter of law.” WIS. STAT. § 802.08 (2017-18).2 “We review de novo the grant of
summary judgment, employing the same methodology as the circuit court.”
Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶9, 324 Wis. 2d 180, 781
N.W.2d 503. We first “examine the moving party’s submissions to determine
whether they constitute a prima facie case for summary judgment,” and if so, “we
examine the opposing party’s submissions to determine whether there are material
facts in dispute that entitle the opposing party to a trial.” Id., ¶9.
DISCUSSION
¶8 Rumpf argues that the Bank failed to introduce admissible evidence
to support a prima facie case for summary judgment, and that there are genuine
issues of material fact about his affirmative defenses. We address each argument
in turn.
I. The Bank’s Prima Facie Case
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
4
No. 2019AP879
¶9 Rumpf contends that the Bank has not offered admissible proof of
the amount due on his loan, but the argument he makes to support this contention
has mutated during the course of these proceedings. As discussed in greater detail
below, during the proceedings before the circuit court (and in his opening brief in
this court), Rumpf made the puzzling assertion that Benight had not attached any
accounting documents at all to her affidavit. Rumpf did not mention, much less
make any argument about the admissibility of, the payment ledgers and other
accounting documents that were in fact attached to Benight’s affidavit. It was not
until his reply brief in this court that Rumpf developed an argument that the
documents attached to Benight’s affidavit are inadmissible because Benight lacks
personal knowledge of how they were created. See WIS. STAT. § 908.03(6);
Palisades, 324 Wis. 2d 180, ¶¶21-22.
¶10 Before addressing the arguments that Rumpf has advanced—both in
the circuit court and here on appeal—it is helpful to provide a brief overview of
Palisades, which discusses the admissibility of business records. In that case, a
debt collector acquired the defendant’s credit card debt from the original creditor,
and then sued to recover the balance. Id., ¶3. Using an affidavit from its own
employee, the debt collector sought to admit the original creditor’s business
records. Id., ¶¶3-5. We considered WIS. STAT. § 908.03(6), the hearsay exception
for business records, and held that the employee was not qualified to offer the
testimony necessary to satisfy that statute’s requirements. Id., ¶¶20-21, 23.
Section 908.03(6) provides that a business record is not hearsay if it is “made at or
near the time by, or from information transmitted by, a person with knowledge, all
in the course of a regularly conducted activity, as shown by the testimony [or
certification] of the custodian or other qualified witness ….” The problem with
the affidavit in Palisades was that the debt collector’s employee did not state that
5
No. 2019AP879
she had personal knowledge of how the original creditor prepared account
statements or whether the original creditor prepared them in the ordinary course of
its business. Id., ¶23.
¶11 Turning to Rumpf’s arguments, and for the reasons we now explain,
we conclude that the argument Rumpf made in the circuit court is contrary to the
record, and that he has forfeited the WIS. STAT. § 908.03(6) argument that he now
makes for the first time on appeal.
A. Rumpf’s Argument Before the Circuit Court
¶12 We begin our discussion by providing additional detail about the
argument that Rumpf advanced in the circuit court. As discussed above, and as
addressed more fully below, Rumpf’s argument was premised on a mistaken
assertion that the Bank had not provided any payment ledgers or other accounting
records to prove the amount due on his loan.
¶13 In his circuit court brief (as well as his opening brief in this court),
Rumpf argued that the Bank’s summary judgment submission violated the “best
evidence rule” found in WIS. STAT. §§ 910.02 and 910.03.3 Specifically, Rumpf
argued that the Bank was required to submit original accounting records or a copy
of those records, and that its evidence was insufficient because it consisted solely
of an affidavit summarizing accounting records. Rumpf argued:
Missing from [the Bank’s] summary judgment
submission are any business records which establish the
3
WISCONSIN STAT. § 910.02, titled “Requirement of original,” provides: “To prove the
content of a writing, recording or photograph, the original writing, recording or photograph is
required, except as otherwise provided in chs. 901 to 911, s. 137.27, or by other statute.”
WISCONSIN STAT. § 910.03, titled “Admissibility of duplicates,” provides that “[a] duplicate is
admissible to the same extent as an original” under certain circumstances.
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No. 2019AP879
amount owed; instead of simply providing a ledger or other
accounting of the loan, [the Bank] has opted to provide a
conclusory, hearsay statement from an employee of the
servicer ….
….
… What Benight wants to do is read a document
and then recite the contents of that document in court – but
that is hearsay! It does not matter if Benight were reading
an account ledger from Rumpf’s loan, or a letter someone
wrote to SPS, or any other document – Benight cannot
testify to the contents of an out-of-court statement, whether
that statement is written or oral.
….
… [The hearsay exception for business records]
does not allow the admission about testimony about the
contents of the record, but rather the admission of the
record itself.
In its reply, the Bank corrected Rumpf’s factual error by noting that the accounting
records were in fact “attached as exhibits to Ms. Benight’s affidavit.”
¶14 Aside from asserting that Benight did not attach records to her
affidavit, Rumpf did not develop any argument in the circuit court about other
deficiencies in Benight’s affidavit. Rumpf’s brief asserted in passing that Benight
lacked personal knowledge of his account, but any argument along these lines
would fail—a witness qualified to admit business records need not have personal
knowledge of “the events recorded,” and instead needs only “personal knowledge
of how the records were prepared ….” Palisades, 324 Wis. 2d 180, ¶22. Rumpf’s
circuit court brief also noted that SPS may have inherited accounting records from
a prior servicer and mentioned in passing the requirement that business records be
admitted by a qualified witness. However, perhaps because his argument was
aimed at the premise that Benight did not attach any records to her affidavit,
Rumpf never challenged Benight’s qualifications to testify about the records that
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No. 2019AP879
were in fact attached. And because Rumpf did not provide us with the transcript
of the circuit court’s oral ruling, we presume that he did not raise additional
arguments at that time. See Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496
N.W.2d 226 (Ct. App. 1993) (“[W]hen an appellate record is incomplete in
connection with an issue raised by the appellant, we must assume that the missing
material supports the [circuit] court’s ruling.”).
¶15 In sum, the sole argument that Rumpf advanced before the circuit
court about deficiencies in the Bank’s prima facie case is plainly contrary to the
record. There was no violation of the “best evidence” rule because Benight was
not merely testifying about “the contents” of business records; she attached
payment ledgers and other accounting records to her affidavit which purported to
show the total unpaid principal, interest, and fees due on the mortgage. We
conclude that the circuit court properly rejected Rumpf’s argument.
B. Rumpf’s Arguments on Appeal
¶16 Although Rumpf’s argument begins to shift in his opening brief to
this court, it does not cohere until his reply brief on appeal. In his opening brief,
he again cites the best evidence rule, and puzzlingly, he continues to argue that the
Bank failed to produce records to support its prima facie case.4 Rumpf’s opening
brief also mentions, for the first time, that Benight’s affidavit failed to “set out an
evidentiary basis” for the admission of accounting records. Despite this offhand
and conclusory assertion, Rumph does not develop this argument in his opening
4
Rumpf’s opening brief again asserts that the Bank “tried to prove the contents of the
business records through [Benight’s affidavit], rather than through the records themselves,” that it
“recited conclusory, hearsay numbers,” and that the Bank was attempting to “merely summarize
records rather than produce the records themselves.”
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No. 2019AP879
brief by explaining what was missing, nor does he once cite WIS. STAT.
§ 908.03(6), the hearsay exception for business records. In its response, the Bank
squarely addresses the arguments that Rumpf makes in his opening brief. It is not
until his reply brief on appeal that Rumpf develops an argument, citing
§ 908.03(6) and Palisades, that the payment ledgers and accounting records
attached to Benight’s affidavit were inadmissible because she lacked personal
knowledge to testify about how they were created.
¶17 As a general rule, when a party fails to raise an issue before the
circuit court, the party forfeits that issue on appeal. See Schill v. Wisconsin
Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177.
For reasons we now explain, we do not consider whether Rumpf would have been
able to object to the admissibility of the accounting records based on Palisades
because we conclude that Rumpf forfeited that objection by failing to raise it in the
circuit court.
¶18 Although forfeiture “is a rule of judicial administration” and we
have discretion to overlook a party’s failure to raise an issue in the circuit court,
State v. Kaczmarski, 2009 WI App 117, ¶7, 320 Wis. 2d 811, 772 N.W.2d 702,
there are good reasons to apply the rule in most cases. The forfeiture rule
“enable[s] the circuit court to avoid or correct any error with minimal disruption of
the judicial process, eliminating the need for appeal.” State v. Ndina, 2009 WI 21,
¶30, 315 Wis. 2d 653, 761 N.W.2d 612 (footnotes omitted). It also “gives both
parties and the circuit court notice of the issue and a fair opportunity to address the
objection,” “encourages attorneys to diligently prepare for and conduct trials,” and
“prevents attorneys from ‘sandbagging’ opposing counsel by failing to object to an
error for strategic reasons and later claiming that the error is grounds for reversal.”
Id.9
No. 2019AP879
¶19 Courts frequently apply forfeiture to arguments presented for the
first time on appeal from summary judgment, even though summary judgment is
itself reviewed de novo. See, e.g., Gruber v. Village of North Fond du Lac, 2003
WI App 217, ¶27, 267 Wis. 2d 368, 671 N.W.2d 69. Application of the forfeiture
rule may be especially warranted in the summary judgment context when, if the
party had raised the argument below, the other side would have had the
opportunity to present additional factual submissions that could defeat the
argument. Id. (“Application of the [forfeiture] rule is appropriate where a
[forfeited] argument could have been rebutted with factual information.”).
¶20 The policies underlying the forfeiture rule strongly favor its
application in this case. Had Rumpf argued before the circuit court that Benight
was not qualified to testify that the Bank’s records met the requirements of WIS.
STAT. § 908.03(6), the Bank would have had the opportunity to respond and the
circuit court would have had the opportunity to address any deficiency, perhaps
eliminating the need for this appeal. The Bank could have made arguments as to
why Benight’s affidavit sufficed under Palisades, or it might have been allowed to
supplement the record with an affidavit of an undisputedly qualified record
custodian. See Ndina, 315 Wis. 2d 653, ¶30 (parties should have a “fair
opportunity to address” alleged deficiencies before the circuit court). Instead,
Rumpf rested his argument on the incorrect assertion that the Bank had not
submitted any records at all. Then, even after the Bank pointed out his error in its
summary judgment reply brief, Rumpf made the same unfounded argument on
appeal. By waiting until his appellate reply brief to squarely raise arguments
about § 908.03(6) and Palisades, Rumpf deprived the Bank of any opportunity to
counter these arguments. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d
475, 492, 588 N.W.2d 285 (Ct. App. 1998) (“It is inherently unfair for an
10
No. 2019AP879
appellant to withhold an argument from its main brief and argue it in its reply brief
because such conduct would prevent any response from the opposing party.”). To
permit Rumpf to overcome forfeiture under these circumstances would condone
his conduct and could encourage similar conduct from future litigants.
¶21 Because the argument that Rumpf made in the circuit court is
meritless, and because he has forfeited the argument he now makes on appeal,
Rumpf fails to show that the circuit court erred in concluding that the Bank made a
prima facie case for summary judgment.
II. Rumpf’s Affirmative Defenses
¶22 Rumpf also argues that there are genuine issues of material fact
regarding his affirmative defenses. These defenses are premised upon statements
from Rumpf’s affidavit, in which Rumpf describes correspondence he had with
SPS after his mortgage went into default in September 2013.
¶23 According to Rumpf, he contacted SPS to request a loan
modification shortly after the default. Rumpf avers that over the course of five
years, SPS repeatedly promised to make a decision granting or denying his
modification, but that it never made good on that promise and instead
unreasonably delayed the decision by repeatedly asking for additional
documentation. Rumpf avers that he was “not allowed to make” partial payments
after his default in September 2013 because the indebtedness was accelerated
pursuant to the terms of the mortgage, and that SPS’s delay caused him to suffer
damages in the form of additional interest and late fees that accrued after the
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No. 2019AP879
default.5 Rumpf does not aver that he was willing or able to cure the default at any
time.
¶24 Rumpf argues that his affidavit creates genuine issues of material
fact on his two affirmative defenses, unclean hands and failure to mitigate
damages. We consider each defense in turn.
A. Unclean Hands
¶25 A foreclosure proceeding is “equitable in nature,” GMAC Mortgage
Corp. v. Gisvold, 215 Wis. 2d 459, 480, 572 N.W.2d 466 (1998), and a plaintiff
seeking relief in equity “must have ‘clean hands’ before the court will entertain his
plea,” S & M Rotogravure Serv., Inc. v. Baer, 77 Wis. 2d 454, 466, 252 N.W.2d
913 (1977). An “unclean hands” defense bars equitable relief only when the
defendant shows “substantial misconduct constituting fraud, injustice or
unfairness,” id., and only when “the alleged conduct constituting ‘unclean hands’
caused the harm from which the plaintiff seeks relief,” Security Pacific Nat’l
Bank v. Ginkowski, 140 Wis. 2d 332, 339, 410 N.W.2d 589 (Ct. App. 1987).
5
The mortgage entitles the Bank to “accelerate” the indebtedness upon default and
require payment of the full outstanding balance. Rumpf asserts that he was prohibited from
making partial payments during the time SPS considered his loan modification proposal as a
result of the acceleration of his indebtedness, but even drawing all inferences in Rumpf’s favor,
his affidavit does not support this conclusion. Rumpf’s affidavit fails to identify precisely when
the Bank chose to accelerate his indebtedness, and it fails to account for uncontroverted
documentary evidence provided by the Bank in the form of a “Notice of Default – Right to Cure”
letter dated February 18, 2015, which shows that SPS had not accelerated the indebtedness as of
that date. Thus, even accepting as true Rumpf’s statement that he was not allowed to make
partial payments after the indebtedness was accelerated, Rumpf does not identify any barrier
imposed by SPS or the Bank that prevented him from making partial payments during at least the
eighteen months that immediately followed the default. Additionally, Rumpf does not aver that
he ever attempted to submit any payment or partial payment at any time that was rejected.
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No. 2019AP879
¶26 Rumpf’s unclean hands defense fails because his affidavit does not
identify any action by the Bank or SPS that “caused the harm from which [the
Bank] seeks relief.” Here, the harm from which the Bank seeks relief is Rumpf’s
failure to pay mortgage payments when they came due and the consequent default,
which occurred in September 2013. All of the actions and inactions by SPS that
are set forth in Rumpf’s affidavit took place after the default had already occurred,
and Rumpf does not make any allegation that SPS prevented him from curing the
default. Because the misconduct Rumpf alleges in his affidavit did not cause the
default, it did not cause “harm from which the plaintiff seeks relief” and cannot as
a matter of law form the basis of an unclean hands defense.
¶27 Rumpf’s argument to the contrary is difficult to follow, and it
appears to be premised on a misunderstanding of the unclean hands defense.6
Although Rumpf acknowledges that the Bank had no legal obligation to modify
his mortgage, he appears to assert that it was SPS’s post-default conduct, rather
than his own failure to make payments, that “led the parties to court in the first
place.” According to Rumpf, a jury could infer that SPS did intend to modify his
loan, and that “it was not the original default … years ago that prompted the
foreclosure but the fact that the loan remained in default for so long” while SPS
delayed acting on his modification request. Rumpf’s argument fails because,
among other things, he cites no authority suggesting that an unclean hands defense
can turn on a plaintiff’s subjective reasons for filing a lawsuit that it has legal
6
At times, Rumpf relies on cases about a different legal theory, the implied covenant of
good faith and fair dealing, in support of his unclean hands argument. To the extent that Rumpf
is now attempting to raise a defense based on the implied covenant of fair dealing, we decline to
address it because he did not raise this issue before the circuit court, see Schill v. Wisconsin
Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177, and because it is
undeveloped, see State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992).
13
No. 2019AP879
grounds to file. As discussed above, the defense instead turns on the cause of the
“harm from which the plaintiff seeks relief.” Thus, Rumpf fails to show how any
inference that a jury could make would be material to his defense.
¶28 Finally, Rumpf cites Nationstar Mortgage LLC v. Stafsholt, 2018
WI 21, 380 Wis. 2d 284, 908 N.W.2d 784, for the proposition that “a court can bar
foreclosure based on a lender’s misconduct in not allowing a party to pay.”
Rumpf’s reliance on Stafsholt is misplaced because it is factually and legally
distinguishable from Rumpf’s case. Stafsholt is factually distinguishable because
there, the bank “caused the [defendant] to default” on his mortgage when the its
representative told the defendant he would have to “skip a mortgage payment and
become delinquent” in order to receive customer service. Stafsholt, 380 Wis. 2d
284, ¶7-8, ¶12. Thus, unlike the alleged misconduct here, the plaintiff’s conduct
in Shafsholt did cause the harm from which the plaintiff sought relief. And
Stafsholt is legally distinguishable because it did not discuss an unclean hands
defense—it was about equitable estoppel, a different affirmative defense that may
apply if the defendant reasonably relied to its detriment on the plaintiff’s action or
inaction. See id., ¶¶15, 19; Affordable Erecting, Inc. v. Neosho Trompler, Inc.,
2006 WI 67, ¶33, 291 Wis. 2d 259, 715 N.W.2d 620. Rumpf has never alleged
that the affirmative defense of equitable estoppel precluded relief in this case.
¶29 For all of these reasons, we conclude that Rumpf’s submissions do
not raise any genuine issue of material fact about his unclean hands defense, and
that the defense fails as a matter of law.
B. Mitigation of Damages
¶30 Rumpf also argues that genuine issues of material fact preclude
summary judgment on his affirmative defense that the Bank failed to mitigate its
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No. 2019AP879
damages. For the reasons that follow, we conclude that Rumpf has forfeited this
argument on appeal.
¶31 Rumpf fails to develop any argument about mitigation—much less
support any such argument with relevant authority—in his opening appellate brief.
The brief’s statement of the issues specifically identifies his unclean hands defense
as an issue on appeal, but it fails to mention mitigation of damages at all.
Although the argument section of Rumpf’s opening brief asserts that his affidavit
“establishes a factual basis for both affirmative defenses,” the words “mitigate”
and “mitigation” do not appear in any of the argument that follows this assertion.
The opening brief does not set forth the legal standard regarding a party’s duty to
mitigate and does not develop any argument directed toward that issue. And not
one of the cases cited in the opening brief discusses mitigation with anything more
than a passing reference.
¶32 The parties spar over the consequences of Rumpf’s failure to
develop a mitigation argument in the Bank’s response brief and Rumpf’s reply
brief. In its response, the Bank does not address mitigation beyond stating that
Rumpf forfeited the defense by failing to develop an argument on appeal. In his
reply, Rumpf contends that his opening brief did adequately develop an argument
on mitigation, and for the first time he cites authority regarding the duty to
mitigate damages and offers an argument as to why that affirmative defense could
apply here. Rumpf argues, in essence, that the Bank’s five-year delay in initiating
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No. 2019AP879
the foreclosure action is itself a failure to mitigate damages because interest and
fees continued to accumulate once the loan was in default.7
¶33 We reject Rumpf’s contention that he adequately developed a
mitigation argument in his opening brief. Among other things, Rumpf contends
that there is “no requirement that a litigant cite case law to support an argument.”
Putting aside this dubious contention, the problem is not only that Rumpf fails to
cite legal authority in his brief, but also that he fails to discuss the relevant legal
standards or apply them to the facts.8 See State v. Pettit, 171 Wis. 2d 627, 647,
492 N.W.2d 633 (Ct. App. 1992) (we do not address undeveloped arguments).
¶34 We also reject Rumpf’s attempt to advance a mitigation argument in
his reply brief. As noted above, we generally do not review issues raised for the
first time in a reply brief. A.O. Smith, 222 Wis. 2d 475, 492 (Ct. App. 1998); see
also State v. Denis L.R., 2004 WI App 51, 270 Wis. 2d 663, 673 n.4, 678 N.W.2d
326, aff’d and remanded, 2005 WI 110, 283 Wis. 2d 358, 699 N.W.2d 154. Here,
in addition to the inherent unfairness to the Bank, we are reluctant to address this
novel issue based on the scant briefing before us. Cf. State v. Whitrock, 161
7
Even in his reply brief, Rumpf offers no argument as to why the affirmative defense of
failure to mitigate damages should bar summary judgment in a foreclosure action. Rumpf does
not cite any Wisconsin authority for this proposition, and at least one other jurisdiction has
concluded that “failure to mitigate damages is not an affirmative defense to a foreclosure action;
rather a dispute about the exact amount owed by a mortgagor to a mortgagee does not preclude
summary judgment directing a foreclosure sale.” CIT Bank, N.A. v. Nwanganga, 328 F. Supp.
3d 189, 199 (S.D.N.Y. 2018) (applying New York law). We do not resolve this unbriefed issue
in this appeal; we simply note it as another potential deficiency in Rumpf’s arguments.
8
According to Rumpf, his statement that the Bank “increased the amount of money it
was owed” by “not granting the modification” adequately developed an argument about
mitigation. But that ambiguous statement comes in the context of Rumpf’s unclean hands
argument, and this disorganized passing reference does not suffice to develop an argument. See
State v. Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999).
16
No. 2019AP879
Wis. 2d 960, 970, 468 N.W.2d 696 (1991) (forfeiture may be overcome when the
issue is “fully brief[ed]”).
CONCLUSION
¶35 For the reasons set forth above, we affirm the circuit court.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
17