LNV Corporation v. Tammy S. Stueber ( 2021 )

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.
February 23, 2021
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. 2019AP1658 Cir. Ct. No. 2018CV1089
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
LNV CORPORATION,
PLAINTIFF-RESPONDENT,
V.
TAMMY S. STUEBER A/K/A TAMMY S. BRADWELL,
DEFENDANT-APPELLANT,
CAP SERVICES, INC.,
DEFENDANT.
APPEAL from a judgment of the circuit court for Outagamie
County: MITCHELL J. METROPULOS, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1658
¶1 PER CURIAM. Tammy Stueber appeals from a summary judgment
of foreclosure granted in favor of LNV Corporation Stueber contends LNV failed
to establish a prima facie case regarding its interest in the mortgage note for the
property at issue and that there were several material issues of fact in dispute
regarding the enforceability of the note. We conclude Stueber forfeited the issues
she attempts to raise on appeal by failing to timely raise them in the circuit court.
We therefore affirm.
BACKGROUND
¶2 LNV filed a foreclosure action against Stueber, alleging that it had
been assigned an $82,000 promissory note and mortgage executed by Stueber with
the originating lender (Aames Funding Corporation), and that Stueber had
defaulted on the note by failing to make payment when due. LNV attached to the
complaint copies of the promissory note and mortgage and a series of assignments
and allonges.
¶3 Stueber filed an answer admitting that she had executed the note and
mortgage, but denying that she had failed to comply with the terms of the note and
denying specific knowledge as to how much was owed on the note. The answer
raised affirmative defenses of failure to state a claim, failure to mitigate damages,
lack of personal jurisdiction due to lack of personal service, laches, and unclean
hands, while reserving the right to raise additional affirmative defenses that might
arise during discovery.
¶4 LNV moved for summary judgment. In support of its motion, LNV
submitted an affidavit from an “authorized signer” of LNV who had reviewed the
records of the loan account that were received by LNV from a third-party servicer
and integrated into LNV’s own business records. The affiant averred that LNV
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was the current holder of the $82,000 promissory note and mortgage and that
Stueber had failed to make required payments on the note, had failed to cure the
default, and owed $70,528.68 on the note taking into account the acceleration of
the loan and other fees.
¶5 In response, Stueber filed an affidavit averring that she was not
informed about, and did not agree to, the terms of the promissory note and
mortgage at issue, which refinanced a prior $45,000 mortgage with Aames to a
new amount of $82,000. Rather, Stueber claimed it was her understanding that the
documents she signed at closing related solely to a supplemental $31,800 loan
from CAP Services, Inc., to repair damage caused by a house fire, separate from
her prior mortgage. Thereafter, Stueber believed she was making a combined
payment to a third-party servicer on two loans—the original $45,000 Aames note
and the $31,800 CAP note. Stueber’s response to requests for admissions and her
memorandum in opposition to summary judgment acknowledged that after July
2018, she had failed to make payments on either the original $45,000 Aames note
(assuming it still existed) or the refinanced $82,000 note now held by LNV.
¶6 At a hearing on the summary judgment motion, the circuit court
noted that Stueber acknowledged it was her signature on the refinanced note held
by LNV and that the note plainly indicated that it was in the amount of $82,000.
The court concluded the summary judgment documents established that all of the
material allegations of the complaint were true, and it issued a judgment of
foreclosure.
DISCUSSION
¶7 This court reviews a summary judgment decision de novo, using the
same methodology as the circuit court. Water Well Sols. Serv. Grp. v.
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Consolidated Ins. Co., 2016 WI 54, ¶11, 369 Wis. 2d 607, 881 N.W.2d 285. We
examine the parties’ submissions in support of and in opposition to the summary
judgment motion to determine whether the movant has made a prima facie case for
judgment and, if so, whether there are any material facts in dispute that would
entitle the opposing party to a trial. Frost v. Whitbeck, 2001 WI App 289, ¶6, 249
Wis. 2d 206, 638 N.W.2d 325; see also WIS. STAT. § 802.08(2) (2017-18).1
¶8 When a motion for summary judgment is made and supported with
appropriate evidentiary materials, “an adverse party may not rest upon the mere
allegations or denials of the pleadings.” WIS. STAT. § 802.08(3). If the adverse
party does not respond with affidavits made upon personal knowledge, answers to
interrogatories, and other documents or materials that would be admissible in
evidence, summary judgment shall be entered against that party. Id.
¶9 Stueber raises two issues in her initial appellant’s brief. First, she
contends there were material facts in dispute regarding two affirmative defenses
that could have supported setoffs to the foreclosure judgment. Specifically, she
alleges: (1) violations by the originating lender of disclosure provisions in the
Real Estate Settlement Procedures Act and the Truth in Lending Act, subject to a
statutory penalty of $4,000 plus costs and attorney fees; and (2) a failure by the
originating lender to provide her with $6,556.32 in cash-out funds at closing.
Next, Stueber claims the affidavit of LNV’s “authorized signer” was insufficient
on its face to explain the affiant’s relationship to LNV or to the third-party loan
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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servicer, or how the third-party loan servicer’s records came to be integrated into
LNV’s own business records.
¶10 Stueber did not raise either of these issues in her circuit court
memorandum in opposition to summary judgment. Nor did her answer to the
complaint or her summary judgment affidavit make factual assertions that the
originating lender had failed to make statutorily required disclosures or to provide
cash-out funds at closing. This court will generally not consider issues raised for
the first time on appeal, so that we do not “blindside trial courts with reversals
based on theories which did not originate in their forum.” Schonscheck v. Paccar,
Inc., 2003 WI App 79, ¶¶10-11, 261 Wis. 2d 769, 661 N.W.2d 476 (citation
omitted). “A party must raise an issue with sufficient prominence such that the
trial court understands that it is called upon to make a ruling.” Schwittay v.
Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶16 n.3, 246 Wis. 2d 385, 630
N.W.2d 772. We conclude that Stueber has forfeited any argument that she was
entitled to a trial on potential affirmative defenses arising from the originating
lender’s alleged failures to provide disclosures and cash-out funds, or that the
“authorized signer” of LNV’s affidavit failed to provide an adequate foundation
for his assertions.
¶11 In her reply brief, Stueber makes an additional argument that the
summary judgment materials show she stopped making mortgage payments when
she came to question “where the monies were going to and for what.” Stueber
contends that her own alleged misunderstandings about the cumulative total
amount of the refinanced LNV note and the CAP note and to which loan her
payments were being applied create a material issue of fact as to how much money
was owed on the LNV note. We conclude, however, that any such
misunderstandings on Stueber’s part were immaterial to the findings necessary to
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No. 2019AP1658
support foreclosure—what payments were in fact made on the LNV note or its
remaining balance.
¶12 Stueber did not dispute the specific dates or amounts of any of the
payments that the summary judgment materials submitted by LNV showed
Stueber had made to third-party loan servicers, and she did not assert that she had
made any additional payments. Her general denials of knowledge as to how the
loan proceeds were disbursed or how her payments were applied to the loan were
insufficient to counter the assertions in LNV’s summary judgment materials—
supported by copies of loan servicing records—as to the amounts of Stueber’s
payments, and when and to whom those payments were made. Moreover,
Stueber’s submissions did not create a triable issue regarding her failure to make
payments on the loan after July 2018.
¶13 We conclude the summary judgment materials did not establish any
material factual dispute warranting trial. We therefore affirm the foreclosure
judgment.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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