Dow Family v. PHH Morgage | Wisconsin Supreme Court - the issue of whether PHH has the necessary documents to enforce the note in question was not appealed and must be determined by the circuit court -- MERS
SUPREME COURT OF WISCONSIN CASE NO.: 2013AP221
COMPLETE TITLE: Dow Family, LLC, Plaintiff-Appellant-Petitioner, v. PHH Mortgage Corporation, Defendant-Respondent, U.S. Bank, N.A., Defendant. Excerpt: ¶49 SHIRLEY S. ABRAHAMSON, C.J. (concurring) This is a mortgage foreclosure case, one of many in Wisconsin and across the country.1 PHH Mortgage Corporation, which claims to be assignee of the note and the mortgage in the instant case, has been a party in over 2,300 cases filed in the Wisconsin circuit courts, with many cases still open. PHH, and by extension the Mortgage Electronic Recording System (MERS), upon which it relies, represent the modern mortgage system, which has become the subject of frequent litigation in the Great Recession, during which many homeowners have lost the American dream—— private home ownership. [...] ¶58 The doctrine of equitable assignment is a common-law principle that "a transfer of an obligation secured by a mortgage on property also constitutes a transfer of the mortgage."12 The idea of equitable assignment is that a mortgage has no significance without reference to the note it secures. ¶59 Although the majority opinion concludes "that the doctrine of equitable assignment is alive and well in Wisconsin"13 "as evidenced by established case law,"14 its proffered case law does not support its conclusion. ¶60 The majority opinion cites no Wisconsin precedent explaining or applying the doctrine of equitable assignment in a case involving real estate in which the note and mortgage were held by two different persons. See majority op., ¶¶24-28. The Wisconsin cases upon which the majority relies are not analogous to the instant case. [...]