Here It Is! “Show Me the Note” Defense Unsuccessful After Original Note Presented

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By Norman D. Farnam

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By Douglas C. Scriver

April 30, 2018

As we have previously written, a foreclosing bank must prove that it holds the original note in order to obtain a foreclosure judgment in Wisconsin.  Consequently, banks, borrowers, attorneys, and judges often question how a bank may go about proving it is the holder of the original note, even when the bank has possession of the note.  Fortunately, the Wisconsin Supreme Court recently authorized one method.  After Deutsche Bank National Trust Company v. Wuensch, a bank’s attorney’s presentation to a judge of an original note endorsed in blank proves that such bank holds the original note.

Many readers likely believe this is an obvious decision (i.e., of course the presentation of the original note means the bank holds the original note).  However, before the Supreme Court’s holding, the Court of Appeals found that the attorney’s presentation of the original note was insufficient to show the bank was the holder.  The Court of Appeals believed that the bank was also required to present testimony from a witness with personal knowledge who could verify the bank possessed the note up to the moment its attorney presented the note to the trial judge.  In reversing the Court of Appeals, the Supreme Court declared that a bank seeking to enforce a note endorsed in blank that has been presented to a judge need not present such testimony.

Like many notes, the note at issue in Deutsche Bank was transferred multiple times before it ultimately came into the foreclosing bank’s possession.  Had the bank’s attorney been unable to present the original note to the judge, the bank might have struggled to prove it was the holder entitled to enforce the note.  For this and other reasons, it remains best practice for banks to keep records of the transactional history of notes.  Such records can assist any necessary testimony regarding possession of a particular note.  Nevertheless, when a bank is confident it has actual possession of a note endorsed in blank, Deutsche Bank should streamline the process of proving that the bank is entitled to enforce the note.  The bank may not have to offer testimony or rely upon or disclose its records in court.

If you have any questions about how the information in this article may affect you or your business, please contact Norm Farnam at or Doug Scriver at or (608) 257-2281 or your Stroud attorney.

DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice.  This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship.  You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.