                                                                 2018 WI 57

                  SUPREME COURT                 OF   WISCONSIN
CASE NO.:               2016AP1496
COMPLETE TITLE:         Federal National Mortgage Association,
                                   Plaintiff-Respondent,
                             v.
                        Cory Thompson,
                                   Defendant-Appellant,
                        Unknown Spouse of Cory Thompson,
                                   Defendant.

                             ON CERTIFICATOIN FROM THE COURT OF APPEALS

OPINION FILED:          May 24, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 19, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Amy Smith

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:


       For the defendant-appellant, there were briefs and an oral
argument by Christopher Stroebel and Stroebel Law, LLC, Madison.


       For the plaintiff-respondent, there was a brief and an oral
argument      by    Thomas    C.   Dill   and   BP   Peterman   Law   Group,   LLC,
Brookfield.
                                                                           2018 WI 57
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.       2016AP1496
(L.C. No.    2014CV3377)

STATE OF WISCONSIN                               :            IN SUPREME COURT

Federal National Mortgage Association,

              Plaintiff-Respondent,

      v.
                                                                        FILED
Cory Thompson,
                                                                   MAY 24, 2018
              Defendant-Appellant,
                                                                      Sheila T. Reiff
Unknown Spouse of Cory Thompson,                                   Clerk of Supreme Court


              Defendant.




      APPEAL from an order of the Circuit Court for Dane County.

Affirmed.


      ¶1      SHIRLEY S. ABRAHAMSON, J.              This appeal comes before

the   court    on   certification     by   the   court      of    appeals.1         Cory

Thompson, the debtor defendant, appeals an order of the Dane

County      Circuit    Court,   Amy    Smith,        Judge,      granting      Federal

      1
       Fed. Nat'l Mortg. Ass'n v. Thompson, No. 2016AP1496,
unpublished certification (Wis. Ct. App. June 29, 2017).
                                                                               No.     2016AP1496



National    Mortgage        Association        a     foreclosure          judgment       and     a

monetary    judgment       of    $152,355.98,            plus    any     amounts       held     in

escrow, interest after August 16, 2012, and costs incurred by

Federal National Mortgage Association.2

     ¶2     The     issue        certified         is      as    follows:              Where     a

foreclosure action brought on a borrower's default on a note has

been dismissed, is the lender barred by claim preclusion from

bringing     a     second        foreclosure         action        on     the        borrower's

continuing default on the same note?

     ¶3     Essentially, we must answer the following question:

When a foreclosure action brought on the borrower's default on

the note has been dismissed with prejudice,3 and the lender had

not validly accelerated payment of the amount due under the

note,    does    claim     preclusion      bar       the       lender    from        bringing    a

second foreclosure action based upon the borrower's continuing

default on the same note?

     ¶4     We     conclude       that    when       a     lender       does    not     validly

accelerate       payment    of    the    amount          due    under    the     note     and    a
foreclosure       action    brought       on       the    borrower's       default       on     an

installment       payment       under    the       note    has    been     dismissed        with

prejudice,       claim     preclusion      does          not     bar    the     lender      from



     2
       Federal National Mortgage Association replaced Bank of
America as the plaintiff in the instant case in December 2015.
     3
       For a summary of the facts and decision in the previous
action in 2010, see BAC Home Loans Servicing LP v. Thompson, No.
2013AP210, unpublished slip op. (Wis. Ct. App. Dec. 19, 2013).


                                               2
                                                                                 No.     2016AP1496



bringing      a     subsequent          foreclosure              action    based       upon     the

borrower's continuing default on the same note.

     ¶5     For an earlier action to bar a subsequent action under

the doctrine of claim preclusion, there must be, among other

elements, "an identity of causes of action in the two suits[.]"

N.   States       Power     Co.     v    Bugher,           189     Wis. 2d 541,        551,     525

N.W.2d 723 (1995).

     ¶6     There      is    no     identity          of    causes        of   action     in   the

instant case and in the earlier lawsuit.                            The matters that were

litigated or might have been litigated in the earlier lawsuit

are not the same as those in the instant case.                                 A different set

of   operative       facts        predicated           upon       separate       and     distinct

defaults on the note is alleged in each lawsuit.

     ¶7     Upon      dismissal         of    the       first       lawsuit,      the     parties

continued     the     same        contractual          relationship            with    the     same

continuing obligations they had before the commencement of the

first   lawsuit.            The    borrower's           default       resulting        from    the

borrower's        failure    to    make      an       installment         payment      due    after
dismissal of the first lawsuit was not and could not have been

litigated     in    the     first       lawsuit.            Thus,    the       failure    of    the

borrower to pay an installment after the termination of the

first lawsuit created a new set of operative facts upon which

the lender could base a subsequent foreclosure action.

     ¶8     After the first lawsuit, the lender gave new notice of

intent to accelerate payment.                         The second lawsuit alleged a

different date of default than was alleged in the first lawsuit.
These constitute new facts giving rise to a new and subsequent
                                                  3
                                                                   No.   2016AP1496



default and a different transaction from that presented in the

first foreclosure action.

       ¶9      Additionally,    the   parties     raised    and    addressed   the

issues of whether the circuit court erred at trial by admitting

a copy of the promissory note into evidence and whether Federal

National Mortgage Association proved that it had possession of

the original wet-ink promissory note.4

       ¶10     We conclude that these additional issues are governed

by our decision in Deutsche Bank National Trust Co. v. Wuensch,

2018 WI 35, ___ Wis. 2d ___, ___ N.W.2d ___.

       ¶11     Accordingly, we affirm the order of the circuit court.

                                        I

       ¶12     The facts are undisputed for purposes of this review.

       ¶13     In November 2004, Cory Thompson executed a promissory

note       payable   to   America's   Wholesale    Lender    for    $162,800.00,

secured by a mortgage on real property.               The note was endorsed

in blank by America's Wholesale Lender.               The note contained an

acceleration clause stating that the holder of the note may
require Thompson to pay the full amount of unpaid principal plus

interest immediately under the following conditions:




       4
       When this court grants direct review upon certification,
it acquires jurisdiction over all issues, not merely the issues
certified or the issue for which the court accepts the
certification.     Wis. Const. art. VII, § 3(3); Wis. Stat.
§§ 808.05(2), 809.61; State v. Stoehr, 134 Wis. 2d 66, 70, 396
N.W.2d 177 (1986).


                                        4
                                                                           No.        2016AP1496



    (1)     Thompson      must     have   defaulted          by    failing       to    make   a

            monthly payment on the date that it was due;

    (2)     the holder of the note must have sent written notice

            to       Thompson     stating       that     it       may    accelerate         the

            payments under the note if Thompson fails to cure the

            default by a given date; and

    (3)     the amount of time in which Thompson is afforded the

            opportunity to cure his default must not be less than

            30 days after the date on which the notice is mailed

            or otherwise delivered to Thompson.

    ¶14     In       November     2010,    BAC    Home        Loans      Servicing,         LP,

(formerly Countrywide Home Loans Servicing, LP) filed a lawsuit

against Thompson.         The complaint alleged that Thompson failed to

make required payments on the note as of April 2009.                                    In its

complaint,     BAC     Home     Loans   purported       to     accelerate        the     debt,

which   made     the    principal       balance    of     $153,202.53        immediately

payable in full.         BAC Home Loans sought a money judgment in the

full amount owed under the note and sought to foreclose on the
property securing the note.

    ¶15     At a court trial held on August 16, 2012, the circuit

court   determined        that     BAC     Home        Loans      failed     to        present

sufficient evidence to prevail in its foreclosure action and

dismissed      the     lawsuit     with    prejudice.              The    circuit        court

reasoned that BAC Home Loans failed to present evidence of the

original notice of intent to accelerate full payment and failed

to present evidence that BAC Home Loans was in possession of the


                                            5
                                                                  No.    2016AP1496



original wet-ink note (i.e., that BAC Home Loans was the holder

of the note with the right to enforce the note).

    ¶16   In    March   2014,    Bank   of   America,     N.A.,    (the     entity

servicing Thompson's loan beginning in 2011), sent Thompson a

notice of intent to accelerate payment of the note.                     The notice

of intent to accelerate payment informed Thompson of the amount

due to cure his default ($89,586.63), when payment was due (on

or before May 4, 2014), and where to remit payment.                       Thompson

did not cure his default on or before May 4, 2014.

    ¶17   In December 2014, Bank of America filed a complaint

initiating   the    instant    lawsuit.      The   complaint      alleged     that

Thompson had failed to make payments on the note as of September

2009 and that because Bank of America had accelerated the debt,

the principal balance of $152,355.98 was immediately payable in

full.

    ¶18   Thompson moved to dismiss the December 2014 lawsuit,

arguing that it was barred by the doctrine of claim preclusion.

    ¶19   The circuit court reasoned that the 2010 lawsuit and
the instant 2014 lawsuit involved the same parties, the same

note and mortgage, the same "essential" allegations of default,

and the same remedy.         According to the circuit court, the only

difference between the 2010 and 2014 lawsuits was the different

default period.      The 2010 lawsuit was based on a default as of

April 2009, and the 2014 lawsuit was based on a default as of

September 2009.

    ¶20   The      circuit    court   concluded    that    claim        preclusion
barred the portion of Bank of America's default claim that was
                                        6
                                                                          No.     2016AP1496



alleged to have occurred between April 2009 and August 16, 2012,

the date of the trial in the 2010 lawsuit.                            The circuit court

further    concluded         that    any    default       claim       alleged     to    have

occurred after August 16, 2012, "remain[ed] viable."

    ¶21     The        circuit      court    explained         that     applying        claim

preclusion       to    any    default       alleged      to    have     occurred        after

judgment was entered in the 2010 lawsuit would "be analogous to

parties    in    a    contract      litigating      to    conclusion      one     contract

violation,       and       then   being     forever       barred       from     litigating

subsequent      contract      violations.          Surely,      the     policies       behind

claim or issue preclusion do not contemplate such a result."

    ¶22     Accordingly, Bank of America amended its complaint to

allege a date of default occurring after the trial in the 2010

lawsuit.     The amended complaint alleged that Thompson had failed

to make payments on the note as of September 2012 and that on

acceleration of the debt due, Thompson owed a principal balance

of $152,141.69.

    ¶23     A court trial was held on May 12, 2016.                               Prior to
calling    any    witnesses,        Federal       National     moved     to     admit    into

evidence a purported copy of the note.                          Counsel for Federal

National presented the copy of the note, along with a document

purporting to be the original wet-ink note.                        Thompson objected,

stating    that       he    was   unable     to    tell       whether    the     purported

original wet-ink note was in fact the original wet-ink note or

whether either document was identical to the original document

that he signed in November 2004.


                                             7
                                                                           No.     2016AP1496



       ¶24    The circuit court visually compared the copy of the

note with the document that Federal National's counsel presented

to the court as the original wet-ink note.                            The circuit court

observed that the document presented by counsel as the original

note appeared to be the original wet-ink note.                                 The circuit

court admitted the copy of the original wet-ink note based on

the    court's      visual    comparison           of   the    original   and     copy     and

because       the        circuit     court         viewed       the   copy       as    self-

authenticating.

       ¶25    The circuit court granted Federal National a monetary

judgment of $152,355.98——plus any amounts held in escrow, costs,

and interest after August 16, 2012——along with a judgment of

foreclosure         to     satisfy    the      monetary         judgment.          Thompson

appealed.

       ¶26    The court of appeals certified the issue as follows:

Where a foreclosure action brought on a borrower's default on a

note    has     been      dismissed,      is        the    lender     barred     by    claim

preclusion      from      bringing    a   second          foreclosure     action      on   the
borrower's continuing default on the same note?

                                             II

       ¶27    We    begin    by    setting         forth      the   standard     of   review

applicable to the certified issue.

       ¶28    The certified issue involves the application of the

doctrine of claim preclusion to undisputed facts.                          "The question

of    whether       claim    preclusion        applies        under   a   given       factual

scenario is a question of law that this court reviews de novo."
N. States Power Co., 189 Wis. 2d at 551 (citing DePratt v. West
                                               8
                                                                                    No.        2016AP1496



Bend       Mut.     Ins.     Co.,      113    Wis. 2d 306,              310,       334    N.W.2d 883

(1983)).

                                                  III

       ¶29       We address whether the doctrine of claim preclusion

applies to the undisputed facts in the instant action.

       ¶30       Under     the    doctrine        of     claim          preclusion,           "a     final

judgment is conclusive in all subsequent actions between the

same parties [or their privies] as to all matters which were

litigated         or   which      might      have      been    litigated           in     the      former

proceedings."            N. States Power Co., 189 Wis. 2d at 550 (brackets

in     original);          Lindas      v.     Oday,      183     Wis. 2d 547,                 558,     515

N.W.2d 458          (1994);       DePratt,        113     Wis. 2d             at   310.            "Claim

preclusion         thus      provides        an   effective             and    useful         means    to

establish and fix the rights of individuals, to relieve parties

of   the     cost      and    vexation       of     multiple        lawsuits,            to    conserve

judicial resources, to prevent inconsistent decisions, and to

encourage         reliance       on   adjudication."                Kruckenberg           v.       Harvey,

2005 WI 43, ¶20, 279 Wis. 2d 520, 694 N.W.2d 879.5
       ¶31       Three elements must be present for an earlier action

to   bar     a     subsequent         action:          "(1)    an       identity         between      the

parties or their privies in the prior and present suits; (2) an

identity between the causes of action in the two suits; and, (3)

a    final        judgment       on    the    merits      in        a    court       of       competent

       5
       For further discussion of the public policies underlying
the doctrine of claim preclusion, see Kruckenberg v. Harvey,
2005 WI 43, ¶¶19-22, 279 Wis. 2d 520, 694 N.W.2d 879, and
accompanying footnotes.


                                                   9
                                                                       No.   2016AP1496



jurisdiction."          N.   States     Power      Co.,    189    Wis. 2d    at   551;

DePratt, 113 Wis. 2d at 311.

     ¶32      The parties do not dispute, and we agree, that only

the second factor of claim preclusion, that is, identity between

causes of action in the two lawsuits, is at issue in the present

case.

     ¶33      In    determining    whether         there   is     identity    between

causes   of    action    for   purposes       of   applying      claim   preclusion,

Wisconsin courts apply the "transactional approach" as described

in   Restatement        (Second)   of     Judgements.             Kruckenberg,     279

Wis. 2d 520, ¶25; N. States Power Co., 189 Wis. 2d at 553-54;

DePratt, 113 Wis. 2d at 311-12.

     ¶34      The    Restatement      explains        that       the   transactional

approach views a claim in factual terms and coterminous with the

transaction, rather than in terms of legal theories:

     The present trend is to see a claim in factual terms
     and to make it coterminous with the transaction
     regardless of the number of substantive theories, or
     variant forms of relief flowing from those theories,
     that may be available to the plaintiff; regardless of
     the number of primary rights that may have been
     invaded; and regardless of the variations in the
     evidence needed to support the theories or rights.
     The transaction is the basis of the litigative unit or
     entity which may not be split.
Restatement (Second) of Judgments § 24 cmt. a (1982); DePratt,

113 Wis. 2d at 311.

     ¶35      Section 24(2) of the Restatement (Second) of Judgments

describes the "transactional approach" in terms of the facts as
follows:


                                         10
                                                                         No.    2016AP1496


      What factual grouping constitutes a "transaction", and
      what groupings constitute a "series", are to be
      determined   pragmatically,  giving  weight   to  such
      considerations as whether the facts are related in
      time, space, origin, or motivation, whether they form
      a convenient trial unit, and whether their treatment
      as a unit conforms to the parties' expectations or
      business understanding or usage.
Restatement     (Second)       of    Judgments    § 24(2)         (1982);      N.   States

Power Co., 189 Wis. 2d at 553-54.

      ¶36     "The   transactional           approach        to    claim       preclusion

reflects      'the   expectation        that     parties      who    are       given   the

capacity to present their "entire controversies" shall in fact

do    so.'"      Kruckenberg,         279    Wis. 2d 520,         ¶27    (quoting      the

Restatement (Second) of Judgments § 24 cmt. a (1982)).                           In other

words, "[t]he concept of a transaction connotes a common nucleus

of operative facts."          Kruckenberg, 279 Wis. 2d 520, ¶26.

      ¶37     Whether    a     common       nucleus     of    operative        facts   is

involved in the two actions at issue is determined pragmatically

by "look[ing] to see if the claim asserted in the second action

should have been presented for decision in the earlier action,

taking into account practical considerations relating mainly to

trial convenience and fairness."                 Kruckenberg, 279 Wis. 2d 520,

¶27 (quoting Robert C. Casad & Kevin M. Clermont, Res Judicata:

A Handbook on its Theory, Doctrine, and Practice 66 (2001)).

      ¶38     The 2010 lawsuit and the instant case do not share "a

common nucleus of operative facts."                   Each lawsuit relates to a

set of operative facts that occurred at a different time.                               In

the   2010    lawsuit,       the    claim    asserted    was      that   Thompson      had
defaulted on the note as of April 2009.                       In the instant case,

                                            11
                                                                    No.    2016AP1496



the amended complaint6 asserts that Thompson defaulted on the

note as of September 2012 (i.e., after judgment was entered in

the 2010 lawsuit).

      ¶39     Thompson's brief assumes that an identity of claims

exists between the 2010 lawsuit and the claims in the instant

case because the same total amount, namely the entire balance on

the   note,    was    the   remedy    sought    in    both    lawsuits.          This

assumption rests on another assumption, namely that an effective

acceleration of payments occurred in the 2010 lawsuit.                     Thompson

conceded at oral argument, however, that payment of the note was

not effectively accelerated in the 2010 lawsuit.

      ¶40     Nevertheless, Thompson continues to assert that the

instant case is barred by claim preclusion.                  In support of his

claim preclusion argument, Thompson relies on Johnson v. Samson

Construction       Corp.,   704   A.2d 866     (Me.    1997),      and    U.S.   Bank

National Ass'n v. Gullotta, 899 N.E.2d 987 (Ohio 2008).7

      ¶41     In each of these cases, in ruling that the lender was

forever barred from placing the entire balance of the note at
issue once again in a second proceeding, the state supreme court

assumed     that     full   payment   of     the     note    had    been    validly


      6
       The operative allegations in the instant case are in the
amended complaint filed by Bank of America on August 14, 2015.
      7
       The certification memorandum filed by the court of appeals
explains that state courts have taken varied approaches to the
question of the application of the doctrine of claim preclusion
to a subsequent foreclosure action after a prior foreclosure
action is dismissed.


                                       12
                                                   No.   2016AP1496



accelerated and the entire balance of the note was the subject

of the first lawsuit, which was dismissed with prejudice.

    ¶42   The Maine Supreme Court summarized its reasoning in

Johnson that a lawsuit based on default of an accelerated debt

barred a second lawsuit on the debt as follows:

    The promissory note between Johnson and Samson
    required 240 equal monthly payments of principal and
    interest.    However, the note's acceleration clause
    provided that "[i]f any default be made in any payment
    under this Note, and if such default is not made good
    within thirty (30) days after written notice of same,
    the entire unpaid principal and accrued interest shall
    become immediately due and payable without further
    demand." Johnson's first cause of action alleged that
    Samson "defaulted on its obligations to the Plaintiff
    under the Note" and demanded payment of the entire
    unpaid principal balance. This suit was an action for
    the accelerated debt.     Once Johnson triggered the
    acceleration clause of the note and the entire debt
    became due, the contract became indivisible.       The
    obligations to pay each installment merged into one
    obligation to pay the entire balance on the note.
Johnson, 704 A.2d 866, ¶8.

    ¶43   The Ohio Supreme Court also relied on a purportedly

valid acceleration of the balance due on default in reaching its

decision that a subsequent lawsuit on the note was barred.      It

explained in Gullotta the distinction between the consequences

for a second lawsuit of an initial action for recovery of an

installment payment and of an initial action for recovery of the

entire debt as follows:

    The key here is that the whole note became due upon
    Gullotta's breach, not just the installment he missed.
    There is a distinction between an action for recovery
    of installment payments under an installment note
    where the entire principal is accelerated, and an

                               13
                                                                             No.    2016AP1496


       action to recover for nonpayment under an installment
       note where only the amount of the principal to date,
       and no future amount, is sought.    The general rule
       that each missed payment in an installment loan gives
       rise to a separate cause of action does not hold true
       when there is an acceleration clause in the loan
       agreement[.]
Gullotta, 899 N.E.2d 987, ¶29.

       ¶44    Neither    Thompson's          arguments      nor       these    cases      upon

which Thompson relies are persuasive in deciding the instant

case in Thompson's favor.               Why?      Because in the instant case,

unlike in the cases described above, no valid acceleration of

the debt occurred in the 2010 lawsuit.

       ¶45    Generally, and in the instant case, there cannot be a

valid    acceleration      of     the     debt     without        a    default       by    the

borrower.       That     is,     the    borrower's       default        is    a    condition

precedent to the lender's right to accelerate the debt.

       ¶46    After a lawsuit based on the debtor's failure to make

one or more payments is dismissed with prejudice but payment of

the note was not validly accelerated because it was never proved

that    the   borrower     was    actually        in   default,        the     parties     are

simply    placed    back    into       the    position      they       held    before     the

commencement       of    the      lawsuit,        with      the        same        continuing

obligations.        See,    e.g.,       Singleton      v.    Greymar          Assocs.,     882

So. 2d 1004 (Fla. 2004); Afolabi v. Atlantic Mortg. & Invest.

Corp., 849 N.E.2d 1170 (Ind. App. 2006).

       ¶47    In the instant case, when the 2010 lawsuit against

Thompson was dismissed with prejudice, it had the legal effect

of conclusively establishing that Thompson was not in default
for having missed installment payments due on the note up until

                                             14
                                                                       No.    2016AP1496



the date of trial in the 2010 lawsuit (i.e., August 16, 2012).

Thus,     because    it   was    never   proved    in   the    2010    lawsuit      that

Thompson was in default, the entire balance of the note was

never validly accelerated.               In such circumstances, the parties

are     placed    back    into     the    position      they    held     before     the

commencement of the lawsuit.              Thompson was obligated to continue

making     installment     payments      after    the   dismissal      of     the   2010

lawsuit, and claim preclusion does not prevent Federal National

from suing Thompson for failing to make those payments.8

      ¶48    Accordingly,        we   conclude     that   the    instant       lawsuit

alleging a default as of September 2012 is not barred by the

doctrine of claim preclusion.

      ¶49    In     the   instant     case,      the    debt    was     not    validly

accelerated in the 2010 lawsuit.                  Claim preclusion should not

bar the mortgagee from challenging a subsequent default payment

solely because the mortgagee failed to prove in a prior action

an earlier alleged default.               Preventing a mortgagee from suing

to collect a subsequent default even after the earlier claimed
default could not be established would essentially insulate the

mortgagor from future mortgage foreclosure actions on the note

merely because the mortgagor prevailed in the first action.




      8
       We note that the 2010 lawsuit was dismissed with prejudice
based on insufficient evidence.        We do not address the
application of claim preclusion to a situation in which the
prior lawsuit was dismissed due to a defect in substantive
enforceability of the note.


                                          15
                                                          No.    2016AP1496



    ¶50    The subject of the instant case is an alleged default

in September 2012.        In the prior lawsuit between the parties,

the default was alleged to have occurred in April 2009.                The

instant lawsuit arises out of a different set of operative facts

than those addressed in the prior lawsuit.           The default alleged

in the instant case could not have been litigated in the prior

lawsuit.      There is no identity of claims between the instant

lawsuit and the prior lawsuit.           Accordingly, we conclude that

the instant lawsuit alleging a default as of September 2012 is

not barred by the doctrine of claim preclusion.

                                    IV

    ¶51    Before we end this opinion, we briefly address the

following two additional issues the parties raised:

    (1)    whether the circuit court erred at trial by admitting

           a copy of the note into evidence; and

    (2)    whether Federal National proved that it had possession

           of the original wet-ink note.

    ¶52 These two issues are presented in and are governed by
our decision in Deutsche Bank National Trust Co. v. Wuensch,

2018 WI 35, ___ Wis. 2d ___, ___ N.W.2d ___.            With respect to

these   two     issues,    the   facts    of   the   instant    case   are

substantially the same in all material respects to the facts

presented in Deutsche Bank.

    ¶53    In Deutsche Bank, we concluded that a promissory note

endorsed   in   blank     constitutes    self-authenticating    commercial

paper that may be enforced by the holder of the note.             Deutsche
Bank, ___ Wis. 2d ___, ¶¶23-24.          We further concluded that the
                                    16
                                                                                 No.     2016AP1496



circuit court did not err by admitting into evidence a copy of

the promissory note that was endorsed in blank, noting that the

copy of the note was compared side-by-side to the original and

that generally speaking, a duplicate of a document is admissible

to    the    same    extent        as    the    original.             Deutsche         Bank,    ___

Wis. 2d ___, ¶23.

       ¶54    We also concluded that because Deutsche Bank's counsel

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

trial,      Deutsche     Bank      proved       that      it   had     possession         of    the

original promissory note and could bring the lawsuit.                                    Deutsche

Bank, ___ Wis. 2d ___, ¶24.

       ¶55    In the instant case, counsel presented the original

wet-ink note to the circuit court along with a copy of the note.

The circuit court in the instant case, sitting as the finder of

fact, determined that the purported original appeared to be the

original wet-ink note.              Upon comparing the original wet-ink note

to the copy of the note, the circuit court admitted the copy

into evidence.
       ¶56    Consistent          with    our    decision        in    Deutsche         Bank,    we

conclude      that   Federal        National         proved     that    it       possessed      the

original wet-ink note, that it could bring the lawsuit, and that

the   circuit       court    did        not    err   in    admitting         a    copy    of    the

original wet-ink note at trial.

                                                V

       ¶57    As to the certified issue, we conclude that when a

lender does not validly accelerate payment of the amount due
under       the   note      and     a    foreclosure           action    brought          on    the
                                                17
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borrower's default on an installment payment under the note has

been dismissed with prejudice, claim preclusion does not bar the

lender from bringing a subsequent foreclosure action based upon

the borrower's continuing default on the same note.

      ¶58   As to the additional issues raised by the parties, we

conclude    that   Federal    National     proved   that   it       possessed     the

original wet-ink note, that it could bring the lawsuit, and that

the   circuit   court   did    not   err   in   admitting       a    copy    of   the

original wet-ink note at trial.

      By the Court.—The order of the circuit court is affirmed.




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