Kevin Fields v. Colonial Savings FA

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.
December 12, 2019
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. 2018AP2315 Cir. Ct. No. 2014CV1188

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

KEVIN FIELDS,

PLAINTIFF-APPELLANT,

V.

COLONIAL SAVINGS FA,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Rock County:
DANIEL T. DILLON, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, 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).

¶1 PER CURIAM. Kevin Fields, by counsel, appeals a circuit court
order granting summary judgment in favor of Colonial Savings, F.A. Fields
No. 2018AP2315

argues, among other issues, that the circuit court erred when it dismissed his
slander of title claim and concluded that the outcome of the case was controlled by
Federal National Mortgage Association v. Thompson, 2018 WI 57, 381 Wis. 2d
609, 912 N.W.2d 364. We reject Fields’s arguments and affirm.

BACKGROUND

¶2 In 2004, Fields signed a promissory note to the order of First Federal
Capital Bank and executed a mortgage on his home as security for the note. First
Federal Capital Bank then endorsed the note in blank. On June 1, 2007, Colonial
Savings became the holder and servicer of the note. Fields made payments to
Colonial Savings for more than three years, and then defaulted.

¶3 In February 2011, Colonial Savings filed a foreclosure action against
Fields, alleging that the whole of the principal and interest were due under the
note’s acceleration clause. After a trial to the court, the circuit court dismissed the
action on the basis that Colonial Savings had failed to prove that it had been
assigned the note by an entity that had authority to make the assignment and,
therefore, failed to prove that it had standing to enforce the note.

¶4 Following the dismissal of the 2011 foreclosure action, Colonial
Savings did not appeal the dismissal or move to reopen the judgment. Instead,
Colonial Savings initiated a new foreclosure action against Fields in March 2012
pertaining to the same note and mortgage as the 2011 foreclosure action. This
time, attached to the complaint were two assignment of mortgage documents,
recorded on February 17, 2012, that designated Colonial Savings as the assignee.
The circuit court dismissed the action on grounds of claim preclusion. Colonial
Savings appealed, and this court affirmed the judgment of the circuit court.

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¶5 Fields then filed a complaint against Colonial Savings, seeking relief
under several theories, including slander of title. Colonial Savings filed a
counterclaim seeking a declaratory judgment that the note and mortgage were still
valid and enforceable. The parties filed cross-motions for summary judgment and,
after briefing and oral arguments, the circuit court dismissed all of Fields’s claims
with prejudice, except for Count IV, slander of title, which the circuit court
characterized as a claim for clear title. The court set the matter for trial.

¶6 Prior to trial, our supreme court decided Thompson. In that case, a
previous foreclosure action between the same parties had been dismissed with
prejudice. Id., ¶3. Our supreme court held that claim preclusion did not bar a
subsequent foreclosure action between the same parties based on contractual
defaults which occurred after the dismissal of the first action. Id., ¶¶49-50.

¶7 The circuit court ordered additional briefing from the parties on the
effect of Thompson on the instant case. After briefing and a hearing, the court
entered an order granting summary judgment in favor of Colonial Savings and
dismissing Fields’s complaint with prejudice. This appeal follows.

STANDARD OF REVIEW

¶8 This court reviews summary judgment decisions de novo, applying
the same methodology and legal standard employed by the circuit court.
Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶9, 324 Wis. 2d 180, 781
N.W.2d 503.

DISCUSSION

¶9 We first address Fields’s argument that Colonial Savings committed
slander of title when it recorded the 2012 assignment of mortgage documents. He

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asserts that the 2012 assignments were improper because they created a lien on his
property that was “false, a sham or frivolous,” contrary to WIS. STAT. § 706.13
(2017-18).1 For the reasons explained below, we reject this argument.

¶10 It is undisputed that Colonial Savings is the holder of the note at
issue in this case. Colonial Savings asserts in its brief that it became the holder of
the note while Fields’s account was still current, and that it has the capability to
bring the wet-ink note to any future foreclosure proceeding. Despite much
discussion in the reply brief about the various definitions that can be applied to the
term “holder,” Fields fails to challenge Colonial Savings’ assertion that it has been
in possession of the note since before Fields was in default.2 A proposition
asserted by a respondent on appeal and not disputed by the appellant in the reply
brief is taken as admitted. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525
N.W.2d 99 (Ct. App. 1994).

¶11 Given that Colonial Savings is the undisputed possessor of the note,
which was endorsed in blank, it follows that Colonial Savings is entitled to enforce
the note. See Deutsche Bank Nat’l Tr. Co. v. Wuensch, 2018 WI 35, ¶24, 380
Wis. 2d 727, 911 N.W.2d 1 (physical possession of the original, wet-ink note,
endorsed in blank, is sufficient to support the conclusion that the mortgagee is
entitled to enforce it). Under the doctrine of equitable assignment, Colonial
Savings is likewise entitled to enforce the mortgage securing the note. See Dow
Family, LLC v. PHH Mortg. Corp., 2014 WI 56, ¶21, 354 Wis. 2d 796, 848

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
The record reflects that Fields was current on his monthly payments until October 1,
2010, when he defaulted.

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N.W.2d 728 (“Under the doctrine of equitable assignment, the assignment of a
mortgage note is automatically followed by the mortgage.”). We conclude that
Fields cannot maintain a claim for slander of title based on the recorded
assignments of mortgage because, at the time Colonial Savings recorded the
assignments in 2012, it already held a valid lien on his property as a result of
equitable assignment.

¶12 We turn next to the issue of whether the outcome of this case is
controlled by Thompson. In this case, as in Thompson, the note at issue was
endorsed in blank. See Thompson, 381 Wis. 2d 609, ¶13. Here, Colonial Savings
failed to prove in the 2011 foreclosure action that it had standing to enforce the
note. Similarly, in the first foreclosure action in Thompson, the plaintiff failed to
produce the wet-ink note at trial and, therefore, failed to prove that it had a right to
enforce the note. Id., ¶15. In both this case and in Thompson, the initial
foreclosure proceeding was dismissed with prejudice. Id. In light of these
analogous facts, we conclude that Thompson is controlling. Under Thompson, a
continuing contractual default on the part of the borrower that occurs after the
dismissal of an initial foreclosure lawsuit creates a new set of operative facts, and
a lender can base a subsequent foreclosure action on those facts without being
barred by the doctrine of claim preclusion. Id., ¶57. Therefore, we reject Fields’s
argument that Colonial Savings is barred by claim preclusion from enforcing the
note and mortgage.

¶13 Fields makes several other arguments that this court need not reach.
Any arguments in his briefs that we do not address are either patently meritless or
so inadequately developed that they do not warrant our attention. See Libertarian
Party of Wis. v. State, 199 Wis. 2d 790, 801, 546 N.W.2d 424 (1996) (an appellate

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court need not discuss arguments that lack “sufficient merit to warrant individual
attention”).

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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