Background
In April 2022, Lakeview Loan Servicing, LLC filed a foreclosure action in Jefferson County circuit court against Jeremy and Nicole Bastin, alleging it held a note and mortgage on their property and that they had defaulted on payments. The note was endorsed in blank. Lakeview obtained summary judgment in December 2022, but the Wisconsin Court of Appeals reversed in a prior decision (Lakeview I, No. 2023AP475, July 18, 2024), holding that Lakeview’s submissions were insufficient to establish a prima facie case because the only averment regarding note possession stated that “the custodian” held the note — without identifying who that custodian was or establishing Lakeview’s right to enforce a note held by another.
On remand, a procedural wrinkle arose when Lakeview could not appear at an October 2, 2024 status conference due to a courthouse telephone system outage. The circuit court orally ordered dismissal in Lakeview’s absence. Lakeview promptly sought relief, and the court vacated the dismissal on October 16, finding that the phone failure constituted “the clearest case of excusable neglect I’ve ever seen.” Lakeview then filed a renewed summary judgment motion on November 11, 2024, supported by a new affidavit from the loan servicer averring that Lakeview, through its attorneys, was in possession of the original wet-ink note endorsed in blank, with a copy of the note attached.
The Bastins responded by refusing to engage with the substance of the renewed motion, arguing instead that Lakeview I had conclusively established that Lakeview lacked standing and that the circuit court therefore had no jurisdiction to entertain another summary judgment motion. At the January 29, 2025 hearing, Lakeview presented the original note for the court’s inspection. The Bastins objected — for the first time — that expert authentication was required but had not raised any authenticity challenge in their written opposition. The circuit court granted summary judgment to Lakeview and entered a judgment of foreclosure. The Bastins appealed pro se.
The Court’s Holding
The Court of Appeals affirmed, rejecting all of the Bastins’ arguments. On the central jurisdictional question, the court held that Lakeview I did not require dismissal of the foreclosure action — it reversed a deficient summary judgment submission and remanded for further proceedings, leaving the door open for Lakeview to cure the identified evidentiary shortcoming. The court noted that Lakeview I had explicitly addressed the Bastins’ alternative arguments “to the extent that [the Bastins] may seek to renew those arguments on remand,” which would have been unnecessary if dismissal had been mandated. Neither the law-of-the-case doctrine nor any jurisdictional principle barred the circuit court from considering the renewed motion.
On the merits of the renewed summary judgment, the court held that Lakeview’s new affidavit — averring possession of the original wet-ink note — directly remedied the deficiency identified in Lakeview I and established a prima facie case for foreclosure. Because the Bastins expressly declined to respond to the material facts in the motion and raised only their meritless jurisdictional theory, they failed to create any genuine dispute of material fact. The Bastins’ later assertion on appeal that the note might be a forgery was unsupported by any evidence and, in any event, was not raised in their summary judgment opposition, making it procedurally forfeited and substantively insufficient under Wisconsin’s requirement that opposing parties submit specific, evidentiary facts.
The court also upheld the circuit court’s decision to reopen the case after the October 2 oral dismissal, finding that the phone system failure constituted excusable neglect under Wis. Stat. § 806.07(1)(a) and that the court had acted within its discretion. The Bastins’ additional arguments — including allegations of judicial bias, a claim that Lakeview needed to be the note’s owner or mortgage assignee (not merely its holder), and a contention that reopening impermissibly extended Lakeview’s appeal time — were each rejected as either unpreserved, undeveloped, or contrary to Wisconsin law.
Key Takeaways
- A reversal for insufficient summary judgment submissions in a foreclosure case does not compel dismissal of the action; the plaintiff may file a renewed motion on remand that cures the identified evidentiary deficiency.
- When a note is endorsed in blank, Wisconsin law requires the foreclosing plaintiff to submit evidence — such as an affidavit and authenticated copy — showing possession of the original wet-ink note; a vague reference to an unidentified “custodian” is insufficient.
- A borrower opposing summary judgment must raise factual disputes — including note-authenticity challenges — in the written opposition; arguments first raised at the hearing or on appeal are forfeited and cannot defeat summary judgment.
- Wisconsin’s “holder” rule (Wis. Stat. §§ 401.201(2)(km)1., 403.301) permits the party in possession of a blank-endorsed note to enforce and foreclose on it, regardless of whether it is also the note’s owner or the mortgage’s recorded assignee.
- A court’s excusal of a party’s failure to appear due to a courthouse phone system outage is a well-supported exercise of discretion under Wis. Stat. § 806.07(1)(a).
Why It Matters
This case illustrates the high evidentiary bar Wisconsin courts impose on lenders seeking summary judgment in foreclosure actions involving blank-endorsed notes, while also confirming that a reversal on evidentiary grounds is not a one-way ratchet toward dismissal. Lenders and their servicers should ensure that affidavits in support of summary judgment specifically identify the entity in physical possession of the original note and, where possible, present the original for judicial inspection — steps that can cure the kind of averment deficiencies that led to the reversal in the first appeal.
For borrowers and their advocates, the decision is a cautionary tale about litigation strategy on remand: declining to engage with the substance of a renewed summary judgment motion — even in protest of its procedural propriety — forfeits the opportunity to create a triable issue of fact and effectively hands the lender the judgment. Courts will not supply factual disputes that parties choose not to raise.