                                                                      2018 WI 35

                  SUPREME COURT                OF     WISCONSIN
CASE NO.:                2015AP175
COMPLETE TITLE:          Deutsche Bank National Trust Company,
                                   Plaintiff-Respondent-Petitioner,
                              v.
                         Thomas P. Wuensch,
                                   Defendant-Appellant,
                         Heidi Wuensch,
                                   Appellant.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                                             (no cite)

OPINION FILED:           April 17, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           October 2, 2017

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               La Crosse
   JUDGE:                Todd W. Bjerke

JUSTICES:
   CONCURRED:
   DISSENTED:            A.W. BRADLEY, J., dissents, joined by
                         ABRAHAMSON, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the plaintiff-respondent-petitioner, there were briefs
filed    by       Thomas   C.   Dill    and   BP    Peterman      Group,    Brookfield;
Robert W. Brunner and Bryan Cave LLP, Chicago, Illinois; and
Kenneth         Lee    Marshall   and     Bryan      Cave    LLP,     San     Francisco,
California.           There was an oral argument by Kenneth Lee Marshall.


       For      the    defendant-appellant         there    was   a   brief    filed   by
Christa O. Westerberg, Susan M. Crawford, Aaron G. Dumas, and
Pines Bach LLP, Madison.               There was an oral argument by Christa
O. Westerberg.
                                                                             2018 WI 35
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2015AP175
(L.C. No.    2009CV752)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

Deutsche Bank National Trust Company,

                 Plaintiff-Respondent-Petitioner,

      v.
                                                                          FILED
Thomas P. Wuensch,
                                                                     APR 17, 2018
                 Defendant-Appellant,
                                                                        Shelia T. Reiff
Heidi Wuensch,                                                       Clerk of Supreme Court


                 Appellant.




      REVIEW from a decision of the court of appeals.                      Reversed.


      ¶1         REBECCA GRASSL BRADLEY, J.            This is a review of an

unpublished court of appeals summary disposition reversing the

La Crosse County Circuit Court's1 foreclosure judgment against

Thomas      P.    Wuensch     in   favor   of   Deutsche     Bank     National      Trust




      1
          The Honorable Todd W. Bjerke presiding.
                                                                          No.   2015AP175



Company         (Deutsche    Bank).2      The     circuit      court      admitted    the

promissory note signed by Wuensch (the Note) into evidence when

offered by Deutsche Bank through its attorney, and permitted the

Bank       to    enforce    the   Note,   ruling        that   the     original      Note,

endorsed in blank, was sufficient to establish possession.                             We

reverse the court of appeals' summary disposition3 and affirm the

circuit court's judgment of foreclosure.

       ¶2        The 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.      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.




       2
       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."
       3
       Deutsche Bank Nat'l Trust Co. v. Wuensch, No. 2015AP175,
unpublished order (Wis. Ct. App. Aug. 23, 2016).


                                             2
                                                                        No.   2015AP175



                                       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 HLB's parent entity, and AHM had endorsed

the Note in blank.

      ¶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 by 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

      4
       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.


                                           3
                                                                          No.    2015AP175



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.5                In August 2007, although Wuensch was

current on his mortgage payments, he received notice from the

Town of Onalaska that his property taxes had not been paid.

Around this time, Wuensch learned that AHM, then in possession

of his Note, had filed for bankruptcy earlier in the month.

    ¶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         of     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.

    ¶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 Wis.

Stat.     § 846.101         (2013-14),        waiving    any    deficiency       judgment

against Wuensch, and consenting to Wuensch's continued occupancy

    5
       The moneys held in the escrow account also covered hazard
insurance and other costs and fees.


                                               4
                                                                    No.   2015AP175



of the property until the circuit court entered confirmation of

a sale.6

      ¶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 circuit court to inspect and asked

the circuit court to admit into evidence a copy of the Note as a

      6
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                          5
                                                                      No.   2015AP175



self-authenticating,          "non-hearsay    instrument . . . offered           for

its legal significance, not to prove the truth of the matter

asserted."7        Wuensch's counsel objected on the bases of hearsay

and lack of personal knowledge on the part of Deutsch Bank's

counsel, while also asserting that Deutsche Bank's counsel was

impermissibly acting as a witness.                 The circuit court overruled

these objections and after inspecting the Note, observed:

     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 nature 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."

     7
       Deutsche Bank's counsel also moved to admit the mortgage,
to which Wuensch's counsel made no objection.


                                        6
                                                                          No.   2015AP175



     ¶11     Deutsche    Bank     called       one   witness   at   trial,      Rasheed

Blanchard, a loan analyst from Ocwen Financial Corporation, 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.




                                           7
                                                                       No.     2015AP175



It further found Wuensch was in default on the Note in the

principal amount of $315,233.64.8

     ¶14    The circuit court concluded that Wuensch's arguments

regarding        allegedly     fraudulent        practices       associated        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., 2014 WI 56, ¶21, 354 Wis. 2d

796, 848 N.W.2d 728, the circuit court ruled that "[u]nder the

doctrine    of     equitable     assignment,       a     mortgage      automatically

follows the assignment of the note."                The circuit court applied

the Dow Family holding that "security for a note is equitably

assigned upon transfer of the note, without need for a written

assignment."        Pivotally,     the    circuit      court    held    that    "[t]he

holder of an original note endorsed in blank has the right to

enforce    the    note";     therefore,       Deutsche   Bank    had    standing     to

bring the foreclosure action against Wuensch.

     ¶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:


     8
       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.


                                          8
                                                                         No.    2015AP175


    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.
Accordingly,    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 amount 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 (Wis. Ct. App. Aug. 23, 2016).                        Wuensch argued

the circuit court lacked a factual basis to enter judgment of

foreclosure against him because Deutsche Bank did not prove it

was the holder of the original Note entitled to enforce it.                          Id.

at 4.     He contended that Deutsche Bank was required to present

evidence not only that the purported original Note was in fact

the original Note, but also that Deutsche Bank's counsel had

obtained the Note from the Bank.                   Id.     Wuensch insisted that

possession    alone    of     the    purported     original       Note    endorsed    in
blank was not enough to prove possession.                  Id.

                                            9
                                                                           No.     2015AP175



       ¶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 Wis. Stat. §§ 906.02 ("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."), 906.03(1) ("which provides

that   a     witness     must      take   an    oath      before    testifying"),        and

901.04(2) ("a judge is to make preliminary determinations on the

qualifications      of      a   person    to    be    a   witness"),       the   court   of

appeals held as "axiomatic" the rule "that 'unsworn statements'

have 'no proper place' as substitutes for evidence in a trial."

Id. at 5 (citations omitted).                   The court of appeals recognized

the "difficulties" the Bank's counsel would have encountered had

he attempted to testify as to his personal knowledge surrounding

the Note and its possession.                Id. at 5.       Nevertheless, the court

of appeals held that the Bank was required to present testimony
from    a    witness        with    personal        knowledge      who     could    verify

possession of the Note by the Bank up to the moment Deutsche

Bank's attorney presented the Note to the circuit court.                            Id. at

6-7.

       ¶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
                                               10
                                                                                No.     2015AP175



possession      by     the    Bank     itself       or     the   concomitant          right      to

enforce the Note endorsed in blank.                           Id. at 8.         Deutsche Bank

filed a petition for review, which this court granted.

                               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,

2006 WI 62, ¶4, 291 Wis. 2d 80, 715 N.W.2d 213.                                 Ordinarily, a

circuit     court's      "[f]indings         of     fact      shall   not   be        set   aside

unless clearly erroneous, and due regard shall be given to the

opportunity of the [circuit] court to judge the credibility of

the   witnesses."            Wis.    Stat.     § 805.17(2).           Furthermore,           "the

decision whether to admit evidence is within the circuit court's

discretion."          State v. Zamzow, 2017 WI 29, ¶10, 374 Wis. 2d 220,

892 N.W.2d 637 (citing State v. Griep, 2015 WI 40, ¶17, 361 Wis.

2d 657, 863 N.W.2d 567), cert. denied, 138 S. Ct. 501 (2017).

However, the application of a statute to the facts of a case is

a question of law this court reviews de novo, although the court

benefits from the analyses of the circuit court and court of
appeals.       Warehouse II, 291 Wis. 2d 80, ¶4 (first citing State

v. Reed, 2005 WI 53, ¶13, 280 Wis. 2d 68, 695 N.W.2d 315; and

then citing State v. Cole, 2003 WI 59, ¶12, 262 Wis. 2d 167, 663

N.W.2d 700).

                                      III. DISCUSION

      ¶20      In mortgage foreclosure actions, the plaintiff has the

burden    of    proving       the     terms       of     indebtedness       secured         by   a

mortgage.       Mitchell Bank v. Schanke, 2004 WI 13, ¶32, 268 Wis.
2d 571, 676 N.W.2d 849 (citing Doyon & Rayne Lumber Co. v.
                                               11
                                                                          No.    2015AP175



Nichols, 196 Wis. 387, 390, 220 N.W. 181 (1928)) (noting the

"requirement that the mortgagee prove the existence of debt in

order to foreclose on the mortgage, as a mortgage cannot exist

without a debt"); see PNC Bank, N.A. v. Bierbrauer, 2013 WI App

11, ¶10, 346 Wis. 2d 1, 827 N.W.2d 124.                    This includes verifying

that foreclosure proceedings are maintained by the party with

the right to enforce the note, a requirement that is not a mere

formality.       See Bierbrauer, 346 Wis. 2d 1, ¶10.                    It is in fact a

foundational precondition for any foreclosure action, protecting

borrowers from wrongful loss of their homes, affording lenders a

procedure       for     enforcing      notes,        and       providing        certainty

surrounding property rights in mortgages.                        See, e.g., David A.

Dana, Why Mortgage "Formalities" Matter, 24 Loy. Consumer L.

Rev.     505,         507-08     (2012);          Elizabeth        Renuart,        Uneasy

Intersections: The Right to Foreclose and the U.C.C., 48 Wake

Forest L. Rev. 1205, 1212 (2013); Adam J. Levitin, The Paper

Chase:       Securitization,     Foreclosure,            and     the    Uncertainty     of

Mortgage Title, 63 Duke L.J. 637, 648 (2013).
       ¶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.,    2004     WI    58,    ¶45,   271

Wis. 2d 633, 663, 681 N.W.2d 110.                    Article 3 of the Uniform

Commercial Code (U.C.C.), codified in Wisconsin at ch. 403 in




                                            12
                                                                          No.       2015AP175



1995,     provides    that     where    a    note    is     negotiable,9       it     may    be

enforced by a "holder."               Wis. Stat. § 403.301.             A "holder," as

relevant     here,         includes    "the        person    in    possession          of    a

negotiable instrument that is payable . . . to bearer."                                 Wis.

Stat.     § 401.201(2)(km)1.            A    "bearer"        includes     a    person        in

possession       of   an    instrument       endorsed       in   blank.        Wis.    Stat.

§ 401.201(2)(cm).           "If endorsed in blank, an instrument becomes

payable     to   bearer,"      and     can    be    "negotiated      by       transfer       of

possession alone."10            Wis. Stat. § 403.205(2); Bierbrauer, 346

Wis. 2d 1, ¶12.




     9
       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).

Wis. Stat. § 403.104(1) (2013-14).    The Note at issue here is
unquestionably a negotiable instrument.
     10
       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").


                                             13
                                                                       No.     2015AP175



       ¶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.11                         Wisconsin

Stat.       § 909.015(3)    permits      the     trier    of    fact    to     compare

specimens       that     have     been     authenticated,       and     Wis.     Stat.

§ 909.02(9)          provides     that      commercial         paper     is      self-
authenticating under chs. 401-411.                 Because the circuit court

admitted the copy of the self-authenticating Note based upon a

proper application of the law, its exercise of discretion was

not erroneous.


       11
       We note Wis. Stat. § 910.03 provides that "[a] duplicate
is admissible to the same extent as an original unless (1) a
genuine question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original."


                                           14
                                                            No.    2015AP175



    ¶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.      Wis.    Stat.   § 403.301.     As   Deutsche   Bank's   counsel

physically possessed the original Note on his client's behalf at

trial, § 403.301 is satisfied.           This rule alone resolves the

issue in favor of Deutsche Bank.

    ¶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




                                    15
                                                    No.   2015AP175



early as 1895.12   See Miller v. Race (1758), 97 Eng. Rep. 398; 1

Burr. 452 (Lord Mansfield) (KB) ("bank notes are paid by and

received of the holder or possessor of them, as cash; and that


     12
       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, 10 Fordham L. Rev.
345, 348-49 (1941). While the basic principles of negotiability
and the enforcement of notes endorsed in blank were established
prior to Lord Mansfield's tenure as Chief Justice, the holdings
in Miller v. Race and its progeny were revolutionary in setting
the course for modern doctrines on negotiable instruments.
Edward L. Rubin, Learning from Lord Mansfield: Toward A
Transferability Law for Modern Commercial Practice, 31 Idaho L.
Rev. 775, 778 (1995).    For example, they informed Blackstone's
Commentaries on the Laws of England, which defined a "promissory
note" as "a plain and direct engagement in writing, to pay a sum
specified at the time therein limited to a person therein named,
or sometimes to his order, or often to the bearer at large." 2
William Blackstone, Commentaries on the Laws of England 467
(Oxford 1766) (emphasis added); see also W. S. Holdsworth,
Blackstone's Treatment of Equity, 43 Harv. L. Rev. 1, 10-11
(1929) ("Blackstone owed much to Lord Mansfield. . . . [W]e can
see that in [Blackstone's] treatment of commercial law . . . as
well as in his treatment of equity, he accepted and incorporated
into his book the reasoning and the results of the decisions of
Lord Mansfield . . . ." (footnotes omitted)).      In the United
States, these early cases also eventually led to codification in
every state of the Uniform Negotiable Instruments Law, the
precursor to the U.C.C. See, e.g., § 2675-9, ch. 356, Wis. Laws
of 1899 ("The instrument is payable to bearer . . . [w]hen the
only or last indorsement is an indorsement in blank."); see also
Mark B. Greenlee & Thomas J. Fitzpatrick IV, Reconsidering the
Application of the Holder in Due Course Rule to Home Mortgage
Notes, 41 Unif. Com. Code L.J. 225 (2009).     While a promissory
note is no longer transferred as readily as cash, "the
underlying purpose of negotiability——facilitating the transfer
of debt instruments——remains relevant."     See Rubin, supra, at
796.   Wisconsin Stat. §§ 403.301 and 403.205(2), which permit
the transfer of promissory notes endorsed in blank, likewise aid
in the transferability of debt instruments.


                                16
                                                                           No.     2015AP175



in the usual way of negotiating bank notes, they pass from one

person to another as cash, by delivery only and without any

further inquiry or evidence of title, than what arises from the

possession."); Dawson Town & Gas Co. v. Woodhull, 67 F. 451, 452

(8th Cir. 1895) ("When these notes were offered, they were in

the hands of the plaintiff's attorneys.                          The legal presumption

was   that    they       had    received      them        from    the   hands    of     their

client . . . ."); see also Peacock v. Rhodes (1781), 99 Eng.

Rep. 402, 403; 2 Doug. 633, 636 (Lord Mansfield) (KB) ("I see no

difference between a note indorsed blank, and one payable to

bearer.       They       both    go    by    delivery,       and     possession       proves

property in both cases.").                  Wuensch argues that these cases are

"inapposite" and outmoded.                 We disagree.          Although the cases are

not   controlling        authority,         the     principles      derived      from      them

persuasively inform the interpretation of                           Wisconsin's U.C.C.,

which has not displaced them.                     Wis. Stat. § 401.103(2) ("Unless

displaced by the particular provisions of chs. 401 to 411, the

principles        of     law     and       equity . . . shall           supplement         its
provisions."); Met-Al, Inc. v. Hansen Storage Co., 844 F. Supp.

485, 489 (E.D. Wis. 1994) ("[P]re-Code case law is available to

aid   in    interpretation            of    the    UCC     unless    violative        of   its

specific provisions.").

      ¶26    This rule is as widely supported today as it has been

historically.          See, e.g., Dow Family, 350 Wis. 2d 411, ¶¶15, 24

(relying on ch. 403 to define the right to enforce a note: "if

an instrument is endorsed in blank, it becomes payable to the
bearer      and    may     be    negotiated          by     transfer     of     possession
                                              17
                                                                        No.    2015AP175



alone. . . . Without          the      original           note,   or    a      properly

authenticated      copy,      there        is   no    showing      that       [mortgage

corporation] is entitled to enforce the note as the party in

possession of a note endorsed in blank." (citing Mitchell Bank,

676 N.W.2d at 849)); Rodger v. Bliss, 130 Misc. 168, 169 (N.Y.

Sup. Ct. 1927) ("The notes were presented by the plaintiff in

open court . . . .           They were negotiable instruments and their

possession was prima facie evidence of ownership." (citations

omitted)); Schmoldt v. Chi. Stone Setting Co., 33 N.E.2d 182,

183    (Ill.   App.    Ct.    1941)    ("The     production       of    the    note   by

plaintiff was prima facie evidence of his ownership"); In re

Foreclosure of a Deed of Trust Executed by Rawls, 777 S.E.2d

796,    799-800   (N.C.      Ct.    App.   2015)     ("[n]egotiable         instruments

like mortgage notes that are endorsed in blank may be freely

transferred.          And    once     transferred,          the   old   adage    about

possession being nine-tenths               of the law is, if anything, an

understatement.        Whoever       possesses       an    instrument    endorsed     in

blank has full power to enforce it." (quoting Horvath v. Bank of
New York, N.A., 641 F.3d 617, 621 (4th Cir. 2011) (alteration in

original))).      However, the 2008 financial crisis precipitated

inconsistent judicial application of a previously longstanding

rule.13     Renuart, supra ¶20, at 1241 ("The connection between the

       13
       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 (Wis. Ct.
App. Mar. 31, 2016) (per curiam) (contradicting its holding in
                                                     (continued)
                                           18
                                                   No.   2015AP175



right to foreclose and the U.C.C. is one of the most common

issues faced by courts over the last five years due primarily to

the mishandling of the notes and mortgages and the foreclosing

party's response to the lack of proper documentation.").       In

2011, the Permanent Editorial Board for the Uniform Commercial

Code issued a report addressing "[r]ecent economic developments


the instant case when it ruled the Bank could enforce the note
against Harrop based on presentment of "the original Note" with
the debtor's signature "in original pen ink" and admission of a
copy into evidence; the court of appeals upheld the circuit
court's   finding   that   "the    fact    that . . . counsel is
representing the [Bank] in this case, has the note physically in
his possession, is enough to establish that the note is in
possession of the [Bank]."); Bank of Am., N.A. v. Minkov, No.
2012AP2643, unpublished slip op., ¶18 (Wis. Ct. App. Aug. 8,
2013) ("Under this principle, because the note is endorsed in
blank, Bank of America is entitled to enforce the note if indeed
it possesses the note.    However, as discussed above, Bank of
America has failed to identify any evidence in the record that
it possesses the original note.     Therefore, it has not made a
prima facie showing that it is entitled to summary judgment."
(Emphasis added.)); PHH Mortg. Corp. v. Kolodziej, No. 2010AP60,
unpublished slip op., ¶28 (Wis. Ct. App. Mar. 10, 2011)
("Because PHH's submissions do not provide authentication for
the mortgage assignment and for the endorsed note, its
submissions do not make a prima facie showing that it is the
holder of the mortgage and note.").

     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.


                               19
                                                                     No.   2015AP175



[that] have brought to the forefront complex legal issues about

the         enforcement        and   collection       of       mortgage    debt."14

Specifically, the board addressed the situation where "the party

to whom a note is payable may be changed by indorsement."                       The

board offered the following illustration mirroring the instant

case:

       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.

See Dow Family, 350 Wis. 2d 411, ¶17 n.6.                      When Deutsche Bank

took    possession        of   the   Note   before    trial,    it   mirrored   the

position       of   the    illustration's        transferee.      Thus,    physical

possession of the original Note, endorsed in blank, by Deutsche

       14
       Permanent Editorial Board for the Uniform Commercial
Code, Report: Application of the Uniform Commercial Code to
Selected Issues Relating to Mortgage Notes 1 (2011).
       15
       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., 107
Wis. 2d 510, 523–24, 319 N.W.2d 855 (1982); State v. Eugenio,
210 Wis. 2d 347, 352, 565 N.W.2d 798 (Ct. App. 1997), aff'd, 219
Wis. 2d 391, 579 N.W.2d 642 (1998).


                                            20
                                                                         No.     2015AP175



Bank's attorney at trial was sufficient evidence to support the

circuit court's conclusion that Deutsche Bank was the holder of

the Note, enabling the Bank to enforce it.                       Rawls, 777 S.E.2d at

800.

       ¶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, 67 F.

451, 452 (8th Cir. 1895) ("When the notes were offered, they

were    in    the   hands      of   the     plaintiff's    attorneys.          The   legal

presumption was that they had received them from the hands of

their client . . . ."); see also U.C.C. § 3-420 cmt. 1 (Am. Law

Inst. & Unif. Law Comm'n 2013-14) ("Delivery to an agent [of the

payee] is delivery to the payee.").16                     On this issue, we find

particularly        persuasive         In   re    Hernandez,     No.   13-04735-8-SWH,

slip op., at 5 (Bankr. E.D.N.C. Dec. 24, 2014), in which a
bankruptcy      court     in     the     Eastern      District    of   North     Carolina

concluded      that      in   presenting         an   original    note   during      court

proceedings         in   order      to      establish    the     client's      possession

thereof, an attorney acts as an agent for the holder:

       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
       16
            See supra note 15.


                                                 21
                                                                         No.      2015AP175


       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. is "[t]o

make   uniform      the   law    among     the    various      jurisdictions,"          Wis.

Stat. § 401.103(1)(c), Wisconsin courts "give substantial weight

to cases from other jurisdictions" when resolving issues that

arise under that code.                 Borowski v. Firstar Bank Milwaukee,

N.A., 217 Wis. 2d 565, 577, 579 N.W.2d 247 (Ct. App. 1998).

       ¶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




                                           22
                                                                             No.    2015AP175



delivering testimonial evidence.17                    Thus, the court of appeals'

holding that "[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.        Id.     (emphasis

added).         Such testimony is entirely unnecessary where, as here,

no extrinsic evidence was needed to admit the Note, Wis. Stat.

§ 909.02(9),        and     no     testimony       was      needed    to     explain      the

circumstances of Deutsche Bank's possession; rather, the Bank

had the right to enforce the Note endorsed in blank solely by

virtue of its possession of the original Note.                             Trial counsel

was merely acting in the ordinary course of his representation

of   Deutsche       Bank    when    he    offered      the    original       Note    to   the

circuit     court     for    inspection         and   the    copy     of   the     Note   for

admission into evidence.


      17
        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, 41 Wis. 2d 312, 323, 164
N.W.2d 266 (1969), vacated on other grounds, 400 U.S. 505
(1971).    "Lawyers routinely make assertions of procedural and
process    facts    and   provide   background   information   to
judges . . . .    Lawyers do not need to be sworn when asserting
these process and background facts because they have an ethical
obligation not to make false statements of fact or law to the
judge."      Judith A. McMorrow,     The Advocate as Witness:
Understanding Context, Culture and Client, 70 Fordham L. Rev.
945, 946 (2001) (footnotes omitted); see also SCR 20:3.3(a)(1)
("A lawyer shall not knowingly . . . make a false statement of
fact or law to a tribunal or fail to correct false statement of
material fact or law previously made to the tribunal by the
lawyer.").


                                              23
                                                                                 No.    2015AP175



       ¶31     Finally,       the    nature       of   the    original         Note    as     self-

authenticating commercial paper under Wis. Stat. § 909.02(9) is

entirely independent of the issue of possession.                                  Despite the

fact that § 909.02(9) definitively answers the question, Wuensch

argues    that       a     trier    of     fact    would      need   to        determine          the

authenticity of the Note.                    However, "[e]xtrinsic evidence of

authenticity as a condition precedent to admissibility is not

required     with        respect     to . . . [c]ommercial            paper,          signatures

thereon, and documents relating thereto to the extent provided

by chs. 401 to 411."                 Wis.     Stat.         § 909.02(9).              Among       its

findings of fact, the circuit court was "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. . . ."             The circuit court was the trier of fact in this

case,    its        personal       examination         is   supported      by     Wis.        Stat.

§ 909.015(3), and its findings are not clearly erroneous.

       ¶32     Wuensch       suggests       that       admission     of    the        copy     into
evidence itself is problematic.                        He urges us to consider Dow

Family,      350         Wis. 2d 411,       but        ultimately     misconstrues                its

holding.       In Dow Family, the court of appeals held that a copy

of an original note is insufficient evidence of possession and

was inadmissible in absence of the original wet-ink note.                                      Id.,

¶20.      The       court    of     appeals       held      that   Wis.    Stat.        § 909.01

requires       "a    document       [to]    be     authenticated          in    order        to   be

admissible."          Id.     Accordingly, the court of appeals considered
the     copy        of      the     note     alone          insufficient         to      support
                                              24
                                                                             No.      2015AP175



authentication       and     admission         into     evidence.            Id.,      ¶21-22.

Although under Wis. Stat. § 909.02(9) "[e]xtrinsic evidence of

authenticity as a condition precedent to admissibility is not

required    with    respect        to . . . [c]ommercial             paper,        signatures

thereon, and documents relating thereto to the extent provided

by chs. 401 to 411," in Dow Family, the plaintiff was unable to

"explain    the    extent        to    which      a    copy    of     a     note      is   self

authenticating . . . ."               350 Wis. 2d 411, ¶22 (emphasis added).

Most relevantly, the court of appeals reasoned that because "the

original note's whereabouts were unknown to [the plaintiff],"

this,   along     with     other      evidence,        suggested      that      Fannie      Mae,

rather than the plaintiff, was actually in possession of the

original note.       Id., ¶23.

    ¶33     The    facts     in    the    instant       case    are       distinguishable.

Whereas in      Dow Family         the original note was unavailable for

court   inspection,         Deutsche         Bank's         trial     counsel         actually

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




                                             25
                                                                  No.    2015AP175



significance, not to prove the truth of the matter asserted,"

the circuit court properly admitted the copy into evidence.18

                                 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 foreclosure 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.



     18
       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 Deutsch Bank, we need not consider Wuensch's
arguments regarding unclean hands further.


                                        26
                                                               No.   2015AP175



    By   the   Court.—The   decision   of   the   court   of     appeals   is

reversed.




                                  27
                                                                           No.     2015AP175.awb


     ¶35      ANN WALSH BRADLEY, J.                     (dissenting).         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 (Wis. Ct. App. Aug. 23, 2016).

     ¶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 hued over centuries so "that the truth may

be ascertained and proceedings justly determined."                                 Wis. Stat.

§ 901.02.         Indeed,    the    rules          of    evidence      stand       as    both    a

safeguard        and    cornerstone       for       the     fair      administration            of

justice.

     ¶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.

             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.

                                               1
                                                                      No.   2015AP175.awb


                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.     Without      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?

       1
       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."     Wis.   Stat.  § 902.01(2).     Deutsche   Bank's
possession of the Note is not subject to judicial notice.     Not
only is it subject to reasonable dispute, but it is in fact
vigorously disputed.


                                              2
                                                                 No.    2015AP175.awb


    ¶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.2                     On this

additional       basis   alone,   Deutsche         Bank   may   have    failed    to

demonstrate its entitlement to enforce the Note.

    ¶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."     Id.     In its view, Wis. Stat. § 403.3013 is satisfied



    2
       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., 51 So.
3d 1176, 1179 (Fla. Dist. Ct. App. 2010); Deutsche Bank Nat'l.
Tr. Co. v. Haller, 100 A.D.3d 680, 682 (N.Y. App. Div. 2012);
U.S. Bank, Nat'l. Ass'n v. Moore, 278 P.3d 596, ¶13 (Okla.
2012).
    3
         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
                                                    (continued)
                               3
                                                                   No.   2015AP175.awb


because      "Deutsche    Bank's       counsel    physically       possessed        the

original Note on his client's behalf at trial . . . ."                              Id.,

¶24.

                                          II

       ¶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      Wis.   Stat.

§ 403.205(2).          Accordingly,       Deutsche       Bank    must     prove,     by

admissible evidence, that it is the bearer of the Note.

       ¶43     Neither the majority's approach nor its conclusion is

framed    by    the    rules   of     evidence.        Relying     on    Wis.   Stat.

§ 403.301      only,    the    majority      sidesteps    normal      and    accepted

evidentiary procedure.

       ¶44     Possession,     like    any     other     evidentiary        fact,    is

typically presented through the sworn testimony of a witness

with knowledge of such possession.                See Wis. Stat. §§ 909.01,

909.015(1).       This remains as true in the foreclosure context as
it is in all others.

       ¶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:



       person is not the owner of the instrument or is in
       wrongful possession of the instrument.


                                          4
                                                 No.   2015AP175.awb

    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.
    ¶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 court4 underlying the circuit

court's findings, a critical inaccuracy in the findings of fact

is illuminated.   As cited above, Deutsche Bank's counsel, and

not any employee of Deutsche Bank, presented the purported Note

to the court ("I also have the original here today.     I’m going

to allow him to inspect the original document and compare it to


    4
       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.


                               5
                                                             No.   2015AP175.awb


the copy.") (emphasis added).               The attorney did not actually

address Deutsche Bank's possession of the Note.

     ¶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 no witness testified to this and no evidence

was presented at trial that would support this inference.5

     ¶49       The circuit court took no sworn testimony on the issue

of possession.         The Note was put before the circuit court only

through the unsworn remarks of Deutsche Bank's attorney.                   This

is problematic for several reasons.              First, remarks of counsel

are not evidence.         Kenwood Equip., Inc. v. Aetna Ins. Co., 48

Wis. 2d 472, 481, 180 N.W.2d 750 (1970); Wis JI——Civil 50, at 5,

110 (2017).          Indeed, Deutsche Bank's attorney could not have

acted     as     a    witness    without      potentially    violating      his

professional ethical obligations.            See SCR 20:3.7(a).6

     5
       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.
     6
         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;

                                                                   (continued)
                                        6
                                                                    No.   2015AP175.awb


       ¶50    Second, the attorney's statements were unsworn.                     It is

well understood that "[b]efore testifying, every 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."         Wis.   Stat.        § 906.03.

Unsworn statements are "not evidence" and have "no proper place

in   [a]     trial."    Nelson      v.   State,   35   Wis. 2d 797,            812,    151

N.W.2d 694 (1967).

       ¶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."                Wis. Stat. § 906.02.                When

proffering the Note to the circuit court, counsel did not use

the word "possession" and did not make any statement akin to a

claim      that   Deutsche   Bank    possessed       the    Note.         In    sum,   no

evidence was presented that Deutsche Bank possessed the Note.
       ¶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

              (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.


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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., 48 Wis. 2d at

481.      If he was acting as a witness, then he impermissibly

provided unsworn testimony.                 See Wis. Stat. § 906.03.

       ¶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       and    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 presumption 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.

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                                           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 (Wis. Ct. App.

Aug. 23, 2016).            Contrarily, the majority opinion is certainly

efficient.

      ¶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 judgment.                       The rules exist

to   ensure       that   "proceedings      [are]    justly        determined."      Wis.

Stat. § 901.02.            The corner cutting endorsed by the majority

eschews the evidentiary rules and subverts that goal.

      ¶58     For the reasons set forth, I respectfully dissent.

      ¶59     I    am    authorized   to    state        that   Justice     SHIRLEY   S.

ABRAHAMSON joins this dissent.




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