- A circuit court in Milwaukee County granted Wilmington Savings Fund Society’s (“Wilmington”) summary judgment motion to enforce a note and foreclose a mortgage against Nickolas and Wendi Zagorski (“the Zagorskis”). Wilmington Savings Fund Society v. Zagorski, Case No. 23-CV-4685 (Wis. Cir. Ct. Branch 44, May 15, 2024). The Zagorskis signed a $15,000 note and mortgage securing same in 1999 and defaulted in 2009. Wilmington initiated foreclosure proceedings and moved for summary judgment.
- The court concluded that Wilmington sufficiently pled and proved its claim to enforce the Note by presenting the Note and an affidavit, both of which established Wilmington’s holder status. The Zagorskis countered that they were not obliged to pay the Note under Wis. Stat. § 403.305(3) because Wilmington lost the allonge and the assignment of mortgage. The court rejected the Zagorskis’ argument and clarified that § 403.305(3) pertained to lost instruments, i.e., the note, not lost allonges or assignments.
- The court also rejected the Zagorskis’ laches and statute of limitations defenses finding laches inapplicable because Zagorskis’ had knowledge that Wilmington could sue them. Similarly, the court explained the 30-year statute of limitations codified at § 893.33(2) and (5) applied so Wilmington’s action was timely and not barred by the 6-year statute of limitations which pertained to breach of contract claims.
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