Deutsche Bank National Trust Company v. Thomas P. Wuensch
Deutsche Bank National Trust Company v. Thomas P. Wuensch
Opinion of the Court
*730¶ 1 This is a review of an unpublished court of appeals summary disposition reversing the La Crosse County Circuit Court's
¶ 2 The issue before this court is whether presentment by a party's attorney of an original, wet-ink *731note 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. To answer this question, we must determine the evidence necessary to prove that an entity seeking to enforce a note against a borrower has the right to do so. We hold that presentment to the trier of fact in a mortgage foreclosure proceeding of the original, wet-ink note endorsed in blank, establishes the holder's possession and entitles the holder to enforce the note.
I. BACKGROUND
¶ 3 In December 2006, Wuensch signed an adjustable rate Note issued by HLB Mortgage for $301,500. Wuensch secured the Note with a mortgage he executed in favor of the mortgagee, Mortgage Electronic Registrations Systems, Inc. as nominee for HLB Mortgage, the lender. By the time this action was filed, HLB had transferred the Note to American Home Mortgage Servicing, Inc. (AHM),
¶ 4 It is uncontested that in February 2008, Wuensch defaulted. He failed to make any payment on the Note after February 2008 and has remained in default through the pendency of this foreclosure action. The events surrounding the default underlie the circuit court's ruling that "equity dictates that Wuensch be allowed one last opportunity to cure his default, because his default on the Note may have been caused *732by the actions of the preceding Note holders." They also color Wuensch's arguments on the primary issue regarding whether Deutsche Bank in fact possessed the original Note.
¶ 5 Wuensch's Note required him to remain current on all property taxes by paying into an escrow account serviced by the lender, which would pay his property taxes directly from the escrow account. His promised monthly mortgage payment, due the first of each month, totaled $1,487.68, consisting of $1,210.98 for the Note itself, plus $276.70, which went into escrow to cover property taxes.
¶ 6 In a letter dated February 23, 2008, AHM informed Wuensch it had not received his February mortgage payment. Wuensch claimed he had submitted payment via Western Union on February 15, 2008. Wuensch's attempts to resolve the February payment issue were unsuccessful. Allegedly based on the recommendation *4of an AHM employee, Wuensch stopped making payments on the Note altogether. As a result, AHM sent Wuensch notice of acceleration dated March 4, 2008, indicating that he was in default and owed $2,355.89, which had become due on or after February 1, 2008. Regardless of why Wuensch stopped making payments, there is no dispute that AHM never received any mortgage payments from Wuensch after February 15, 2008. *733¶ 7 Deutsche Bank filed this foreclosure action against Wuensch in August 2009, attaching a copy of the Note to the complaint. It elected to proceed to foreclosure under
¶ 8 Deutsche Bank claimed to be the "lawful holder of said note and mortgage." During the life of the loan, Wuensch's Note and mortgage were transferred multiple times, ultimately landing with Deutsche Bank on August 4, 2009. Because of the nature of a note endorsed in blank, precisely how Deutsche Bank came into physical possession of the Note is not relevant. For purposes of enforcing the Note, it is enough that Deutsche Bank was in possession of the original Note at trial, a copy of which was attached to the complaint.
¶ 9 In his answer, Wuensch denied that Deutsche Bank was a holder entitled to enforce the Note and denied that any payments were past due. Wuensch also asserted the following affirmative defenses: material misrepresentation, laches, estoppel, lack of standing, improper joinder of parties, and lack of note. In an amended answer, Wuensch also alleged fraud and unclean hands by Deutsche Bank and again asserted that the Bank lacked the ability to foreclose.
¶ 10 Pretrial proceedings continued for five years before the case finally came before the circuit court for a bench trial. In May 2014, Deutsche Bank's attorney presented the original, wet-ink Note to the *734circuit court to inspect and asked the circuit court to admit into evidence a copy of the Note as a self-authenticating, "non-hearsay instrument ... offered for its legal significance, not to prove the truth of the matter asserted."
THE COURT: When I looked at the document purporting to be an original, looks like original ink on signatures and appears to be the same as what has now been marked as a copy Exhibit 1....
....
It will be admitted.
The circuit court then concluded that "plaintiff is, in my mind, the holder in due course of a note endorsed in blank and they can proceed on it." Wuensch's counsel objected to the admission of the Note and questioned the validity of the signatures on and the assignment of the instrument, arguing that there were "no indentations on the initials" and "the assignments of the mortgage are relevant because of the false *5nature of them." The circuit court responded, "the law is pretty clear that somebody that is holding a note endorsed in blank has the right to seek foreclosure of such a document" and that it did not think "the assignments were relevant when there's a note endorsed in blank."
¶ 11 Deutsche Bank called one witness at trial, Rasheed Blanchard, a loan analyst from Ocwen Financial *735Corporation, the entity that serviced the loan. He testified as to Wuensch's payment history and the processes by which Ocwen serviced the loan.
¶ 12 Wuensch testified regarding the difficulty he had contacting AHM to resolve the 2007 property tax issue, the payment history leading up to his default, and the events that followed his default. He also claimed that the Note presented by Deutsche Bank did not contain his original, wet-ink signature.
¶ 13 In December 2014, the circuit court issued findings of fact and conclusions of law in its judgment and order. It determined that Deutsche Bank "is entitled to a judgment of foreclosure of the Defendant's mortgage." It found Deutsche Bank:
is the holder of the original Note, endorsed in blank. The Court is satisfied that the Plaintiff has in its possession the original ink Note. The Plaintiff produced the original Note at trial and the Court examined it. The Court is satisfied that it is the original Note executed by Wuensch on December 18, 2006. Exhibit 1 is a true and accurate copy of the original ink Note.
It further found Wuensch was in default on the Note in the principal amount of $315,233.64.
¶ 14 The circuit court concluded that Wuensch's arguments regarding allegedly fraudulent practices *736associated with mortgage-backed securities comprised of pooled mortgages such as his own were "beyond the scope of this case." Relying on Dow Family, LLC v. PHH Mortgage Corp.,
¶ 15 The circuit court, however, exercised its equitable authority to delay entry of the foreclosure judgment and permit Wuensch the opportunity to return to the position he occupied prior to the default event of February 2008. It explained:
Even if the Plaintiff is without blame for the problems with Wuensch's mortgage, the same cannot be said about the preceding holders of his Note. Although the question of whether Wuensch's Note was fraudulently passed between creditors before it came into the Plaintiff's possession is beyond the scope of this case, the Court is convinced that the seemingly unregulated transferring of mortgages during the housing bubble and crash contributed to Wuensch finding himself in this position.
*6Accordingly, the circuit court stayed entry of the judgment until January 24, 2015, to allow Wuensch to cure the default by paying Deutsche Bank $347,826.03-the sum of the unpaid principal, plus expenses paid by Deutsche Bank for property taxes, hazard insurance, and other costs and fees. If Wuensch did not pay that *737amount by January 24th, the circuit court would enter judgment of foreclosure in favor of Deutsche Bank for the entire amount sought-totaling $455,641.85.
¶ 16 Wuensch appealed in September 2015 and the court of appeals summarily reversed the judgment of foreclosure. Deutsche Bank Nat'l Trust Co. v. Wuensch, No. 2015AP175, unpublished order,
¶ 17 The court of appeals agreed. It held that Wuensch's pleadings and his objections as to authenticity and possession at trial placed "possession of the original note in dispute, and there is no dispute that this was an issue that the plaintiff had to prove at trial." Id. Citing
¶ 18 Acknowledging that the "mandate reversing the judgment of foreclosure in this action may appear at first blush to elevate form over substance and to produce a highly inefficient result," the court of appeals nonetheless persisted in holding that possession by the Bank's counsel would not suffice to prove possession by the Bank itself or the concomitant right to enforce the Note endorsed in blank.
II. STANDARD OF REVIEW
¶ 19 "Our review requires us to construe a statute and apply it to the facts of the case." Warehouse II, LLC v. DOT,
*7State v. Zamzow,
III. DISCUSSION
¶ 20 In mortgage foreclosure actions, the plaintiff has the burden of proving the terms of indebtedness secured by a mortgage. Mitchell Bank v. Schanke,
*740¶ 21 In ascertaining who has the right to enforce a note, we begin with the language of the relevant statutes, a step the court of appeals mostly relegated to footnotes. State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
*8
*741¶ 22 Wuensch makes a variety of arguments undercut by a plain reading of the statutes and application of relevant case law. First, Wuensch argues that Deutsche Bank is not a "holder." He asserts that self-authentication is not equivalent to showing physical possession. He also insists that physical possession of the original Note by Deutsche Bank's trial counsel does not make the Bank a "bearer" and that "unsworn statements" by trial counsel were insufficient to prove possession by Deutsche Bank.
¶ 23 We reject Wuensch's arguments and uphold the circuit court's admission of a copy of the original Note into evidence based upon the court's inspection of the original Note and its self-authentication. The circuit court compared the Note and the copy side-by-side, observed that the copy was identical to the original, and admitted the copy into evidence.
¶ 24 As a preliminary matter, we conclude that a person who possesses an original note endorsed in blank is the "holder" of that note. The "holder" is a person entitled to enforce the note.
¶ 25 The rule that possession of an original note endorsed in blank confers a right to enforce the note is not a new concept or even one originating in the U.C.C. Deutsche Bank accurately explains in its briefing that the principle traces back to Lord Mansfield and took root in American common law as early as 1895.
Maker issued a negotiable mortgage note payable to the order of Payee. Payee indorsed the note in blank and gave possession of it to Transferee. Transferee is the holder of the note and, therefore, is the person entitled to enforce it. UCC §§ 1-201(b)(21)(A), 3-301(i).[15 ]
¶ 27 As applied here, Wuensch was the maker and issued the original Note to the order of HLB Mortgage, the payee. HLB Mortgage subsequently endorsed the Note to AHM, also the payee, which then endorsed the Note in blank. At this point, the Note became enforceable upon transfer by the party in possession.
*11See Dow Family,
¶ 28 Second, possession of the original Note by Deutsche Bank's trial counsel in his capacity as legal representative of the Bank does not impair the Bank's status as bearer. When trial counsel presented the original Note to the circuit court, he was not acting to enforce the Note himself of course, but on behalf of his client. Dawson Town & Gas Co. v. Woodhull,
At the hearing ... counsel for [petitioner] presented the original Note with a blank endorsement. While [petitioner's counsel] was in actual possession of the Note, he was acting as attorney, agent and proxy for [petitioner] and it is clear from the court's examination of the Note that it was the original document clearly in the possession of [petitioner]....
Because one underlying purpose of Wisconsin's U.C.C.
*748is "[t]o make uniform the law among the various jurisdictions,"
¶ 29 The court of appeals erred in concluding that Deutsche Bank was required to prove "the document in the plaintiff's counsel's hands in fact came from his client and not from some other person or entity." Deutsche Bank, No. 2015AP175, at 7. The U.C.C. requires nothing more than presentment of the original wet-ink note endorsed in blank in order to enforce it, and presentment to the circuit court at trial may be accomplished through the holder's attorney without the need for testimony regarding how the holder came to possess the note.
¶ 30 Further, trial counsel did not issue "unsworn statements" when he presented the original Note and the copy to the circuit court for inspection. An attorney presenting self-authenticating evidence to the trier of fact on behalf of his client is not acting in the same capacity as a witness delivering testimonial evidence.
*12Thus, the court of appeals' holding that *749"[t]he plaintiff was obligated to prove, under the rules of evidence, that the document in the plaintiff's counsel's hands in fact came from his client and not from some other person or entity" is patently wrong.
¶ 31 Finally, the nature of the original Note as self-authenticating commercial paper under
¶ 32 Wuensch suggests that admission of the copy into evidence itself is problematic. He urges us to consider Dow Family,
¶ 33 The facts in the instant case are distinguishable. Whereas in Dow Family the original note was unavailable for court inspection, Deutsche Bank's *751trial counsel *13actually presented the original Note for inspection and comparison against the copy. 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. In finding that the Note was what Deutsche Bank's trial counsel purported it to be, a "non-hearsay instrument ... offered for its legal significance, not to prove the truth of the matter asserted," the circuit court properly admitted the copy into evidence.
IV. CONCLUSION
¶ 34 We reject the court of appeals' legal conclusions because they disregard the plain meaning of the applicable U.C.C. provisions and impose evidentiary hurdles with no legal foundation. Affirming longstanding principles governing negotiable instruments, we hold that presentment to the trier of fact in a mortgage *752foreclosure proceeding of the original, wet-ink note endorsed in blank, establishes the holder's possession and entitles the holder to enforce the note. We reverse the summary disposition order of the court of appeals and uphold the circuit court's judgment of foreclosure in favor of Deutsche Bank.
By the Court. -The decision of the court of appeals is reversed.
The Honorable Todd W. Bjerke presiding.
Deutsche Bank's full title in this action is "Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust 2007-2 Mortgage-Backed Pass Through Certificates, Series 2007-2, by American Home Mortgage Servicing Inc., its attorney-in-fact."
Deutsche Bank Nat'l Trust Co. v. Wuensch, No. 2015AP175, unpublished order,
By the time the case was before the circuit court, AHM had changed its name to Homeward Residential, and subsequently merged with or was purchased by Ocwen Financial Services, the current servicer of the Note.
The moneys held in the escrow account also covered hazard insurance and other costs and fees.
All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.
Deutsche Bank's counsel also moved to admit the mortgage, to which Wuensch's counsel made no objection.
The principal amount for which Wuensch was found liable exceeds the original principal amount in the Note because the Note provided for changes in the interest rate and the monthly payment, resulting in the amount of Wuensch's monthly payment not fully paying accrued interest. In the Note, Wuensch agreed "THE PRINCIPAL AMOUNT I MUST REPAY COULD BE LARGER THAN THE AMOUNT I ORIGINALLY BORROWED" but the Note capped the principal amount at not more than 110% of the original amount.
A note is a negotiable instrument, defined as "an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges," provided that all of the following apply:
(1) The note "is payable to the bearer or to order at the time that it is issued or first comes into possession of a holder."
(2) The note "is payable on demand or at a definite time."
(3) "It does not state any other undertaking or instruction by" the borrower or lender (subject to a few, inapplicable exceptions).
A blank endorsement, or an endorsement in blank, is "[o]ne made by the mere writing of the indorser's name on the back of the note or bill, without mention of the name of any person in whose favor the indorsement is made, but with the implied understanding that any lawful holder may fill in his own name above the indorsement if he so chooses." Black's Law Dictionary 774 (6th ed. 1990) (also spelled "indorsement").
We note
William Murray, Earl of Mansfield, served as Chief Justice on the Court of King's Bench, the highest common law court in England, from 1756 to 1788. Bernard L. Shientag, Lord Mansfield Revisited-A Modern Assessment,
Wisconsin has not been immune to this dissonance and the court of appeals has issued numerous discordant opinions in the years following the financial crisis addressing the precise issue before this court. See, e.g., Bank of New York Mellon v. Harrop, No. 2014AP2200, unpublished slip op., ¶¶ 8, 15,
The Wisconsin appellate court system functions fairly and efficiently only if the court of appeals fulfills its responsibility to publish opinions according to Wis. Stat. § (Rule) 809.23(1). The court of appeals, in particular district IV with respect to the very issue presented here, has been issuing unpublished opinions, per curiam opinions, or summary disposition decisions even when the issue satisfies the criteria for publication. This not only deprives the bench and bar of important guidance on legal issues of substantial and continuing public interest, it risks inconsistent disposition of cases across Wisconsin.
Permanent Editorial Board for the Uniform Commercial Code, Report: Application of the Uniform Commercial Code to Selected Issues Relating to Mortgage Notes 1 (2011).
This report largely reflects in form and function the official comments to the U.C.C. While this report and its illustrations are not law, we find them to be persuasive authority. See, e.g., Paulson v. Olson Implement Co., Inc.,
See supra note 15.
We can find no Wisconsin law directly stating this point, which comes as no surprise because "[t]he proposition is so apparent on its face that it is difficult to find legal citation to support it." State v. Groppi,
Because we uphold the judgment of the circuit court in concluding Deutsche Bank may enforce the Note against Wuensch, we need not reach Deutsche Bank's secondary argument that we should remand this case for Deutsche Bank to present additional testimony regarding its possession of the original Note.
This conclusion is also dispositive of Wuensch's secondary argument that the circuit court erroneously exercised its discretion when it allowed Deutsche Bank an equitable remedy despite its predecessor-in-interests' "unclean hands." While the primary issue is dispositive, we note that the circuit court considered AHM's actions in fashioning its remedy for Deutsche Bank while also considering that Wuensch was (and remains) in default as of February 2008. Because we uphold the circuit court's judgment of foreclosure in favor of Deutsche Bank, which factored Wuensch's claim of unclean hands into its equitable remedy for Deutsche Bank, we need not consider Wuensch's arguments regarding unclean hands further.
Dissenting Opinion
¶ 35 I agree with the court of appeals that "the rules of evidence may not be sidestepped based on the common sense expectation that the particular entity seeking to enforce a note is generally going to be the entity legally entitled to enforce the note." Deutsche Bank Nat'l. Tr. Co. v. Wuensch, No. 2015AP175, unpublished order at 7,
¶ 36 The precepts that govern the admissibility of evidence at trial do not rest merely on a particular person's idea of common sense. Rather they rest on the rule of law. The rules of evidence have been hewed over centuries so "that the truth may be ascertained and proceedings justly determined."
¶ 37 The presentation of admissible evidence is carefully circumscribed. There are only four pathways for the introduction of admissible evidence. See Wis JI-Civil 50 (2014). Given that "possession" is the essential question here, even a cursory review of the record reveals that no evidence was presented bearing on that issue:
• Evidence is the sworn testimony of witnesses-no sworn testimony on possession was presented.
*753*14• Evidence is deposition testimony presented at trial-no deposition testimony on possession was presented.
• Evidence is exhibits admitted by the court-no exhibits addressing possession were admitted.
• Evidence is agreements, stipulations, or facts the court directs the jury to find-there are no agreements or stipulations that Deutsche Bank holds the Note and its possession is not subject to judicial notice.1
¶ 38 Disregarding the evidentiary rules, the majority allows an attorney to introduce dispositive facts through unsworn statements and without calling a witness. Because I determine that Deutsche Bank's end run around the evidentiary rules is impermissible, I respectfully dissent.
I
¶ 39 The majority initially states that "[t]he issue before this court is whether presentment by 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." Majority op., ¶ 2 (emphasis added). Yet, it is unclear what the majority considers the issue to be.
*754Without even attempting to answer the question as initially presented, it jettisons this question and focuses instead on possession at the time of trial. Which is it?
¶ 40 If the question we are answering is based on possession at the time of filing, then Deutsche Bank must surely lose. Not only did Deutsche Bank fail to provide admissible evidence of its possession of the Note at the time of trial, it also certainly failed to present any information whatsoever to indicate that it possessed the Note at the time this action was filed. In other words, it failed to establish that it had standing to maintain the action in the first instance.
¶ 41 Ultimately, the majority determines that "presentment to the trier of fact in a mortgage foreclosure proceeding of the original, wet-ink note endorsed in blank, establishes the holder's possession and entitles the holder to enforce the note."
¶ 42 In order to maintain a foreclosure action, Deutsche Bank must demonstrate its entitlement to enforce the Note and Mortgage. The Note in this case is endorsed in blank and is therefore enforceable by the bearer. See
¶ 43 Neither the majority's approach nor its conclusion is framed by the rules of evidence. Relying on
¶ 44 Possession, like any other evidentiary fact, is typically presented through the sworn testimony of a witness with knowledge of such possession. See
¶ 45 Despite this well known and established procedure, the Note here was merely presented to the court by Deutsche Bank's counsel. The transcript reveals the following exchange between Deutsche Bank's counsel, Mr. Karnes, and Wuensch's counsel, Mr. Peterson:
MR. KARNES: Your Honor, I'm handing Mr. Peterson a copy of the original [N]ote. I also have the original here today. I'm going to allow him to inspect the original document and compare it to the copy.
MR. PETERSON: Your Honor, I have inspected two different documents. One appears to be a copy of another document. Whether this is an original [N]ote, I have no idea nor could I conclude that, I'm not a witness.
*756¶ 46 The circuit court examined the documents and stated, "When I looked at the document purporting to be an original, looks like original ink on signatures and appears to be the same as what has now been marked as a copy Exhibit 1...." It subsequently found:
The Plaintiff is the holder of the original Note, endorsed in blank. The Court is satisfied that the Plaintiff has in its possession the original ink Note. The Plaintiff produced the original ink Note at trial and the Court examined it. The Court is satisfied that it is the original Note executed by Wuensch on December 18, 2006. Exhibit 1 is a true and accurate copy of the original ink Note.
¶ 47 In comparing the circuit court's subsequent findings of fact to the actual exchange in court
¶ 48 Nevertheless, the majority accepts Deutsche Bank's invitation to simply infer that because Deutsche Bank's counsel had the Note in his possession, he must have received it from Deutsche Bank. Yet *757no witness testified to this and no evidence was presented at trial that would support this inference.
¶ 50 Second, the attorney's statements were unsworn. It is well understood that "[b]efore testifying, *758every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the witness's duty to do so."
¶ 51 Finally, Deutsche Bank's attorney gave no indication he had personal knowledge of Deutsche Bank's possession of the Note. "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."
¶ 52 The majority attempts to escape the conclusion that the circuit court erred with the assertion that "[a]n attorney presenting self-authenticating evidence to the trier of fact on behalf of his client is not acting in the same capacity as a witness delivering testimonial evidence." Majority op., ¶ 30. Then in what capacity was he acting? He was attempting to introduce evidence. If he was acting as counsel, then his remarks are not evidence. See Kenwood Equip.,
¶ 53 The comments to SCR 20:3.7 emphasize the distinction between testimony and advocacy: "A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain *759and comment on the evidence given by others." Here, the attorney attempted to straddle this line, but ultimately was unsuccessful on both fronts. He did not testify to any personal knowledge of possession, and there was no evidence offered on the topic about which he could comment.
¶ 54 By accepting Deutsche Bank's attorney's presentation of the Note, the circuit court created in essence an unrebuttable *17presumption that Deutsche Bank possessed it. After the circuit court accepted the Note as the original and in the possession of Deutsche Bank, what was the homeowner to do? He could not cross examine the attorney, who was not under oath and not called as a witness.
¶ 55 Based on the actual evidence presented, I conclude that the circuit court's finding of fact that Deutsche Bank possessed the Note was clearly erroneous. There was no evidence to that effect presented and therefore Deutsche Bank failed to prove it possessed the Note.
III
¶ 56 The court of appeals recognized that its "mandate reversing the judgment of foreclosure in this action may appear at first blush to elevate form over substance and to produce a highly inefficient result." Deutsche Bank Nat'l. Tr. Co. v. Wuensch, No. 2015AP175, unpublished order at 8,
¶ 57 Although efficiencies are admittedly important, adherence to the evidentiary rules should drive foreclosure proceedings. Courts should ensure that a lender has everything in order before issuing a foreclosure *760judgment. The rules exist to ensure that "proceedings [are] justly determined."
¶ 58 For the reasons set forth, I respectfully dissent.
¶ 59 I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this dissent.
A court may take judicial notice of an adjudicative fact that is "not subject to reasonable dispute" in that it is "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
Courts around the country have concluded that a party attempting to enforce a note must have possessed the note not only at the time of trial, but also at the time of filing in order to establish standing. See, e.g., Country Place Community Ass'n, Inc. v. J.P. Morgan Mortg. Acquisition Corp.,
Wisconsin Stat. § 403.301 provides:
"Person entitled to enforce" an instrument means the holder of the instrument, a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument under s. 403.309 or 403.418(4). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
I use the term "exchange in court" here rather than "testimony" because counsel for Deutsche Bank was not testifying as a witness when introducing the Note, and the circuit court's finding that Deutsche Bank possessed the Note was not based on any actual testimony.
There was likewise no statement made regarding where counsel obtained the Note. I agree with the majority that such testimony is unnecessary: "[b]ecause of the nature of a note endorsed in blank, precisely how Deutsche Bank came into physical possession of the Note is not relevant." Majority op., ¶ 8. Thus, testimony on the topic of possession need not be extensive. A hypothetical witness need only provide testimony that the original note is in Deutsche Bank's possession, not testimony regarding how Deutsche Bank came to possess it.
SCR 20:3.7(a) provides:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
Sub. (1) does not apply here because the issue of possession was contested, and neither sub. (2) nor (3) applies on its face.
Reference
- Full Case Name
- DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff-Respondent-Petitioner, v. Thomas P. WUENSCH, Defendant-Appellant, Heidi Wuensch, Appellant.
- Cited By
- 14 cases
- Status
- Published