Editor: David Reiss
Brooklyn Law School

March 20, 2013

Wisconsin Appellate Court Hold that Note and Mortgage are Both Transferred when Assignment is Made

By Gloria Liu

In Countrywide Home Loan Servicing, LP v. Rohlf, No. 2009‐AP‐2330, 2010 WL 4630328 (Wis. App. Nov. 17, 2010), the court distinguished the decision of Landmark v. Kesler and held that the note and the mortgage are both transferred when assignment is made. The homeowners appealed from judgments of foreclosure on their homestead in Winnebago County and property they owned in Green Lake County. They argued that Countrywide Home Loans Servicing LP did not establish that it was the holder of the note and mortgage on the Oshkosh home. The court found that because the mortgage designates MERS as the mortgagee and nominee of American Sterling Bank, the lender, MERS was allowed to act as American Sterling Bank and assign the mortgage to Countrywide. In addition, the court held that the note and mortgage are to be construed together even if the note and mortgage are sold one or more times because the assignment of mortgage transfers both the note and mortgage. Since the homeowners presented no evidence to refute the assignment of both the note and mortgage to Countrywide and also failed to establish that MERS designation as nominee for American Sterling Bank did not include authority to assign the note, the court found that Countrywide had standing to foreclose.

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